Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Mann Excerpts

Committee stage
Wednesday 20th March 2024 Lords Chamber

I would also welcome clarity from the Minister on the concept of “a reasonable observer”. Decisions on finance and investment are complex and may raise a range of issues and factors influencing a decision. Will the reasonable observer be someone with a certain level of financial expertise? If so, how will this be defined and determined? We need much more clarity, particularly for elected members in local government, as to how the Bill will directly affect them.

[Lord Mann (Non-Afl)]

My Lords, I have an entry in the register of interests. I seek clarity from the Minister. I may not need it, but I would like to tease it out, to see whether my interpretation of these clauses is correct. My question is about the word “decision”, and what the statutory understanding of that word is. My understanding is clarified by Clause 2(2), which says:

“A ‘procurement decision’ is a decision about a contract for the supply of goods, services or works to the decision-maker.”


That seems to me absolutely clear. I want to clarify if that is also the Minister’s understanding of what a decision in this context is.

I ask that because of an example from the University of Essex student union, which has a policy passed 15 or 16 years ago, described as a BDS policy, which is specifically targeted against the state of Israel. On the student union website that policy is deemed to be an educational policy to stimulate discussion and debate. But the student union, in applying the policy, has chosen specifically to address the purchasing of kosher food products, including those from Israel, in the student union shop.

In the context of the amendments, and in terms of how the general public might understand this, as well as those more directly impacted in the public sector and elsewhere, it would be helpful to know whether I am right in my understanding that the University of Essex student union policy, which has not been turned into a procurement decision, as defined in Clause 2(2), would not be covered by the Bill, because it is merely an educational policy, as opposed to a procurement and economic activity decision. To know that would be helpful in understanding what the scope of the Bill is and is not, and what the legal situation will be when it is enacted, as I presume it will be.

[Lord Wolfson of Tredegar (Con)]

My Lords, I spoke on Second Reading, and I am grateful to my noble friend Lord Deben for taking the trouble to read my speech. I wait with anticipation to find out the, no doubt very few, points on which we disagree. That will perhaps be for another day, but I look forward to it.

On these amendments I can be brief, because the central point has already been made: that the proposed amendments, especially those in the name of the noble Lord, Lord Wallace of Saltaire, would add complexity and increase the likelihood of litigation; I declare the obvious interest in that respect. The amendments would therefore make the Bill not more precise but less.

I say that for three reasons. First, introducing words such as “primary or sole” is an invitation to litigation. My second short point—forgive the legal geekiness, but we are in Committee—is that a quick search of legislation.gov.uk indicates that that phrase does not appear anywhere else in legislation. “Sole or primary” does, so in case we go forward with this, I would invite the noble Lord to flip it round, so that we put the more general word “sole” first, followed by the word “primary”. That is not my main point, but as we are in Committee, which is the place for geeky legal points, I may have just made one.

Another amendment introduces the word “material”. That is a really problematic word in law, as are words such as “significant”, because we always have the debate about what the opposite of “material” is. Is it immaterial—that is, de minimis? In that case, that is not really, as I understand it, the force of the amendment. “Material” here really means “of substance”, and it is, I suggest, not a good word to use if one is seeking to get that point across.

However, my main point is that this part of the Bill is drafted clearly and that whether we add “primary or sole” or “material”, that would add complexity and invite more litigation.

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[Lord Mann (Non-Afl)]

My point was not in relation to the amendment; it was in relation to the fact that a significant number of people in the Jewish community have said to me that they anticipate one of the key benefits of this Bill being that student unions will not be able to debate and pass BDS resolutions. My understanding of how the Bill is written and how it has been framed is that what the University of Essex student union has done, whereby it deemed its policy to be an educational tool rather than a procurement decision, explicitly would not be covered by the Bill. That is important, because the expectation is coming from multiple sources within the Jewish community that that is what would happen. Can the Minister clarify whether I am wrong on this, because my reading of the Bill suggests that I am right that—whether one calls it a good thing or a loophole—it would not be covered by the Bill?

[Baroness Neville-Rolfe (Con)]

The noble Lord is right—student unions are not covered, and I think that I made that clear at Second Reading. It is private activity. Clearly, what matters is the influence on public bodies, which is what we are discussing today.

To come back on the Occupied Palestinian Territories, obviously the Government recognise the risks associated with economic and financial activities in those settlements. We do not support boycotts of the Occupied Palestinian Territories. Such boycotts are inherently divisive and could lead inadvertently to negative effects on Palestinians as well as undermining the aim of this Bill, which is to ensure that the UK speaks with one voice internationally. That does not change existing government guidance on doing business in those territories. The Government do not recognise the settlements as part of Israel, as the noble Lord knows, and we have already moved to ban those responsible for violence in the West Bank from the UK—there have been some recent sanctions.

I have tried to answer the probing amendments. I hope that this provides noble Lords with clarification and a rationale for the scope of Clause 1, and I ask the noble Lord to withdraw his amendment.

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Moved by

[Lord Mann]

8: Clause 1, page 1, line 23, at end insert—
“(9) A decision under subsection (2) may include a decision by a university or research institution based in the United Kingdom to enter into a commercial partnership with another university or research institution in a foreign state.”

[Lord Mann (Non-Afl)]

I again reference my entry in the Register of Lords’ Interests. I should specify, as others have, that I am an unpaid adviser to His Majesty’s Government on anti-Semitism, and that previously in the other House I was, for 14 years, the chair of the all-party group on combating anti-Semitism.

In that time and over recent years, I visited virtually every university in the country, looking at and discussing anti-Semitism. I have a very detailed report that was published last year with a lot of recommendations on what should be done in higher education in this country on this issue. In introducing my amendment, I can let the noble Lord, Lord Johnson, and others know that there were no examples from that time of when a student union was capable of influencing a university in terms of BDS campaigns. I think I described it at Second Reading as the most unsuccessful political campaign in my lifetime, and that was partly why I used that language.

My amendment gets to the nub of the issue—what the problem that led to the Conservative Party’s manifesto commitment at the last election for a BDS Bill is actually about. The fundamental issue and problem that has been raised consistently is attempts at academic boycotts. In the last six months, there has without question been a growth in the pressure in universities and on academics not to carry out co-operation or research work that links directly into Israeli universities. That is a fact. How it manifests is not so much complex as complex to legislate on, because the most common way is peer group pressure. How does a university department determine what its research priorities should be? How does it determine which of the myriad universities around the world it should co-operate with?

Sometimes it is explicit; the arguments and the language are explicit. It seems to me that here there is potential scope for legislation, hence this amendment. Sometimes it is not. It is unspoken; it simply happened. Clearly, for us as legislators, that is very intangible. However, the purpose of this amendment would be to give not just a message but a specific legislative tool that would prohibit the explicit refusal to an individual academic of any status, including postgraduates, for example, specifically to work with a university that somebody did not like for political or whatever reasons.

These cases are about Israeli universities. It is widespread across Israeli universities in terms of people saying, “That should not happen”, “We don’t do that here” or “You should not do that. Your research should not include that”. That puts immense pressure on individuals. Imagine that you are a postgraduate student and you are told by your supervisor, “No, I don’t think you should be researching into what is happening in Israel in relation to the specific subject of your postgraduate studies”. That is exactly the pressure that has happened. Or, “We as a university are not going to have a relationship”. The excuse given might be, “We don’t have the budget for this particular university” —Haifa university, let us say—“but we do have a budget for another university somewhere else in the world”. That is precisely how it manifests.

Where it could be demonstrated that that is done for racist reasons, when the academic has a specific interest, a particular desire, a particular motivation to work with an Israeli university or with an Israeli academic, that becomes the problem that we should be dealing with. That is the real problem of anti-Semitism having a pernicious impact in our universities and in our university life. Thankfully, it is not widespread in terms of how it happens, but it is there, it is more common, there are many examples of it over the years and there are increasing examples now.

So having something in the Bill that addresses that specific problem is far more relevant than the theoretics of investment decisions elsewhere, where the evidence base does not say that is the nub of the problem. If the Government wish to manage expectations in the Jewish community, that is rather fundamental. The people who have said, “Yes, we welcome this Bill”, expect it to be about student unions and student union debates. There is no ambiguity in what people have said and what they have called for. It does not serve the interests of Government or Parliament to build up a false expectation of what a piece of legislation would do— indeed, it is dangerous to do so, in my view. So I put it to the Government and the Committee that this amendment would be helpful in putting some meat into the issue for this Bill to progress.

My second amendment, Amendment 9, is equally important but for a different reason. My stance on BDS protests and campaigns is that, frankly, if anyone here chooses to buy this or that product, it is perfectly valid. If one decides not to buy Jaffa oranges because one does not like Israel or the Israeli Government, that is a choice one is free to make and should be free to make. If someone chooses particularly to buy Jaffa oranges, that is a perfectly valid case. If, like me, one is partial to both Palestinian dates and Jaffa oranges, one can say that that is a healthy choice to make on both counts, and perhaps even a little bit politically balanced—I am doing so because the food is rather good. If one chooses, as I do, not to buy Ben & Jerry’s, perhaps one might observe that that is doing me some good. Whether one calls that a political or moral decision, or an absurd decision, it does not matter; that is my free choice.

However, if one then stops a shop—let us say, in a student union or university, or in a local authority—stocking Jaffa oranges, that means that people who wish to buy them cannot do so. It is particularly invidious, when a religion, and there are several, has specific dietary rules and laws—in the case of Judaism, it is kosher food—specifically to isolate the ability of individuals to choose to follow religious norms and rules on diet and ban their right to do so. That is much more invidious, because it is impacting one’s way of life. Therefore, the principle is far greater. Having additional legislation that specifically makes that illegal has a much more powerful impact, because it is affecting a way of life. With the so-called BDS campaign, we are seeing increasingly Jewish kosher foods, which may be Israeli or not, being specifically targeted by racists, whether in supermarkets or Jewish-owned stores, inhibiting the rights of those who choose to be kosher-adherent to be so. That fundamental freedom is being restricted. That is why Amendment 9 has a validity to it.

There are great legal brains here who will work through whether the amendments I am proposing would work; they appear to me to do so. Certainly, in terms of the expectation out there of what this Bill is about, people are interested in precisely this kind of thing, because these are the big issues impacting on how people live their lives and on their freedoms; that is, their academic freedoms to do what they wish as academics—which, I put it to the Committee, is fundamental to what we are as a country—and their freedoms to be themselves in what they choose to eat, which is fundamental to the concept of individual and collective rights, and what we are in this country. I recommend these two amendments to the Government and the Committee. I beg to move.

[Lord Pickles (Con)]

My Lords, I apologise for not speaking at Second Reading, and I draw attention to my entry in the register. I am not entirely sure that what the noble Lord, Lord Mann, said is entirely within the scope of the Bill, but it should be, because it raises a very important point. Before I go on, I crave your Lordships’ indulgence for 30 seconds, because I want to say how indebted this country is to the noble Lord for his work in universities and higher education, and also in sport. He has made a considerable difference, and this House should be grateful to him,

What the noble Lord said illustrates that this is not just about who is in charge, or about the comfort of people attending universities and speaking in student union debates; it is about who is welcome and who is not. It is about how comfortable people feel when politics from another country spills over and affects the domestic life of this country. It is about how we underpin, and celebrate, a multicultural society, while ensuring that we can also celebrate our common Britishness.

The noble Lord, Lord Mann, has done a lot of work on getting the International Holocaust Remembrance Alliance definition of anti-Semitism adopted in universities. It is a non-legally binding definition, and is there as a marker for discussions. As with all such things, there is a bit of a fashion, and people go around and adopt things. The question that the noble Lord asked, and that I ask, is: “Congratulations on adopting it, but what have you done with it?”

The very minimum we would expect, in a university, say, is the creation of a safe space for Jewish students to be able to study. But this also means creating a safe space to do the sorts of things that would keep their parents up at night worrying about them—to be able to enjoy being at university, to enjoy life and to be able to go around the campus with signs of their Jewishness, without fear that they will be picked on. The point that the noble Lord, Lord Mann, is making is that we should not seek to do things that exclude people. If people have a particular view of the kind of food they can eat, that should be available. Student shops on campuses should not remove kosher food, because that excludes people.

I speak from practical experience of this. In the late 1980s and early 1990s I was the leader of Bradford Council, and, with the co-operation of the Labour Party, we introduced halal meat into school meals. That does not sound all that exciting—we see it all the time—but we were the first council in the country to do it. There was an enormous backlash from the population, and from the animal rights people, because of the nature of religious-compliant slaughter.

Why was that important? We had a large number of Muslims in Bradford, many of them on very low incomes, and it was one guaranteed way of ensuring that once a day, the children got a hot, nutritious meal that met their needs. We were also saying something really important to the population of Bradford, which was, as we say in Bradford, “You’re ratepayers—so you’re entitled to get back what you’re putting in. You’re entitled to receive respect”. When we try to get people to work together as a wider community, we should not seek to exclude them because they cannot come to receptions or parties or other social events because we do not provide things that they can enjoy. We should also ensure that if people want to pray, that should be available, because this is about bringing people together.

I am not sure whether the Bill covers that, but there is a debate coming in this country that may be the flip side of the definition of extremism, which is about how we bind people together—how we work together and make people feel British without them losing their identity. The noble Lord, Lord Mann, has given considerable service to this House by raising this because it is an issue that over the coming years and decades we have to get right.

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[Baroness Neville-Rolfe (Con)]

I thank the noble Baroness for her intervention. These are difficult issues.

I turn briefly to Amendment 9, which would ensure that the prohibition in Clause 1 applied to decisions relating to the procurement of food prepared in line with religious practices, such as kosher and halal foods. The ban established by the Bill applies to all procurement decisions, including the procurement of food where this is part of a public function. Therefore, if a public authority made a decision not to procure kosher food and that decision was influenced by moral or political disapproval of the conduct of the State of Israel, the Bill would already prohibit this. However, I reassure noble Lords that nothing in the Bill would stop a public authority providing food that accommodated the religious beliefs of its employees or its service users. For example, it would not stop a public authority specifying in a tender that it was procuring halal products. For these reasons, I ask the noble Lord to withdraw his amendment.

[Lord Mann (Non-Afl)]

I beg leave to withdraw my amendment.

Amendment 8 withdrawn.