Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading
Tuesday 20th February 2024 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I wish to speak on only one issue, one that the noble Baroness who preceded me has just dealt with: the way the Bill works with devolution. It is important to understand the context. The Bill is so widely drawn that it deals with decisions or views that express disapproval of foreign state conduct. It is all justified on the basis of foreign policy, but it is very important to distinguish between the wide terms of the Bill and the much narrower interests of British foreign policy. That is important for two reasons, to which I shall come.

It seems clear from the Bill and the various devolution statutes that the Bill affects powers that have been devolved to the national Parliaments and Governments. I thought this was not in dispute to a large extent, because pages 13 and 14 of the Explanatory Notes, first, tick boxes that say that legislative consent would be sought and, secondly, seem to accept that, at least as regards the executive powers of Ministers, devolution powers are engaged. I very much hope that the Government have not changed their position on that and that they will not proceed with this legislation without obtaining legislative consent. There have been far too many instances where this Government have overridden the devolution settlements, and it is not in the interests of the unity of the United Kingdom that this is continued.

As I understand it, it is claimed that much of the Bill does not involve devolved competences because the general reservations in most of the devolution settlements expressly reserve international relations, the regulation of international trade, and international development assistance and co-operation, although there are qualifications to that. In a Second Reading debate, I do not want to go into the finer and more detailed and difficult legal points in relation to the devolved settlements, and I am sure that the Minister, in replying at a late hour this evening, will not want to deal with that.

I return to what I regard as a central point. As I understand it, the Bill’s wording is intended to prevent the devolved Governments adopting a procurement policy based on their disapproval of the policies or conduct of any state. That is extremely wide. It is not confined to conduct that is in conflict with the foreign policy of the United Kingdom. One can understand why relations with foreign policy are reserved and departures from UK foreign policy might be justified as a reservation, but, given the wide scope, this is very difficult.

Secondly, as the noble and learned Lord, Lord Etherton, has shown, the exceptions in Schedule 2 are extremely imprecisely drawn. I agree completely with what he said about international relations. If you look at the one in relation to environmental conduct, you can see that it is even wider as it applies to something that may be an offence under the laws of any state. These points are important because of Clause 5, which permits judicial review. If there was no judicial review in it, one could expect the good sense of government not to intervene—but, once you open up judicial review, you are vulnerable to people who want to use it in this sort of policy area for commercial or political advantage. So the exact precision of this Bill is of great importance for that reason.

I have one question for the Minister, which I hope that she will be able to answer, but—bearing in mind what I see as very serious flaws in this Bill—there is another question. If, for example, the Bill when an Act is to work properly, how will we deal between national Governments and with local authorities in determining what they can do that is consistent with British foreign policy and with what is, on any reading, disapproval of the conduct of a foreign state? Is a blanket prohibition to apply, or will there be some mechanism? It is extremely unclear from the Bill how in practice this will work, particularly in the light of the availability of judicial review for persons who wish to cause mischief to bring proceedings.

There should be a forum for intergovernmental discussion of these issues, and I very much hope that the Minister will be able to deal with this dichotomy between the interests of foreign policy and the blanket prohibition and a sensible procurement policy, whereby the devolved Governments and others can use their procurement and other powers in a wide compass without fear of litigation.

Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Tuesday 14th May 2024 Lords Chamber

As my noble friend Lord Palmer said, we also support Amendment 27, which includes risk and impact as one of the excepted considerations to be included in “financial and practical matters”. We agree that, if this is not included as an exemption, every investment decision will be open to legal challenge because all investment decisions must include risk and impact evaluation. The fiduciary duty of the LGPS is also affected, as this includes taking account of material financial risk when dealing with investments on behalf of others and exercising due care, skill and diligence when taking decisions on investment with the funds of scheme members. It is easy to see how, if this exception is not included, legal challenges could be mounted by interested parties when pension fund trustees are carrying out their duty to manage environmental, social and governmental risks when an investment decision goes against them, using the broad terms of the “moral or political disapproval of a foreign state” prohibitions in Clause 1.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make three brief points from the view of a lawyer. An awful lot has been said very ably by previous speakers about the reasons why, particularly in relation to Amendment 27, there seems to be no disagreement. This has nothing to do with the politics of the Bill; it is to do with making certain that we make the lives of those who become members of the pension fund board acceptable. I do not want to say too much about the burdens of being on a board or being a trustee of a pension fund—I do not want to put people off—but we ought to legislate to make their life easier in an age where litigation risk is growing. This Bill adds to that litigation risk, which is the second factor that we should take into account. I will not go into Clause 5 now because we will come to it later, but we must take into account the extraordinary encouragement it gives to litigation.

Everyone seems agreed on the objective, particularly in Amendment 27, that financial risk and impact should be taken into account. It is baffling; it is bad legislation to rely on the words rather than to take two minutes to amend the Bill. I am sure this debate has cost more than the cost of putting the Bill right. It cannot possibly be about the parliamentary draftsmen’s pride. It is incomprehensible to me why we cannot put forward a short amendment to reduce litigation risk, make it more attractive to be a pension fund trustee and enable us all to go home a bit earlier.

[Baroness Noakes (Con)]

My Lords, the noble Baroness, Lady Drake, explained her Amendment 27 with great clarity, but I am afraid that I do not agree with her analysis of the problem, nor do I agree with the analysis of the noble and learned Lord, Lord Thomas of Cwmgiedd, for reasons which I will now explain.

Financial matters have been my stock in trade for well over half a century, since I left university. I have been trying to work out what these additional words, “risk” and “impact”, would add to the concept of financial value. The term financial value is not a term of art in my world, the accountancy world, but I think that it means something along the lines of the worth of something expressed in money terms. What something is worth can mean what it is realised for in a market transaction, or what it is worth in terms of the financial benefits it is evaluated to or expected to bring. I believe that neither “risk” nor “impact” add anything to the meaning of financial value.

I start with risk. Risk will affect value, so any determination of what something would fetch in a market or what benefits it would bring would of course take account of the risks when doing the calculations of financial value. This is just 101 of calculating things in financial terms. That is effectively why the DWP documents refer to risk. They do not refer to documents about risk as an adjunct to financial value; they are just encouraging the identification of risks, because that is a normal part of a balanced evaluation. While I do not think that the word risk does any particular harm to the concept of financial value, I do not think that the word is necessary.

I have struggled a bit more with working out what financial impact means. The only thing I could come up with was something like the evaluation of the net costs or benefits to be obtained from what is being acquired, but I cannot see what financial impact adds to the meaning of financial value. In this case, it would be positively confusing to add financial impact alongside financial value, because it might encourage somebody to litigate on the basis that there was a difference between financial value and impact, as Parliament clearly meant something other than financial value by the concept of financial impact. That would be a failure on our part to create certainty in our legislation.

I would also like to comment on Amendment 46A, from the noble Lord, Lord Collins, which is in this group. I expect he will be speaking to it a little later. I could not understand why the noble Lord has chosen UN-related documents to refer to when trying to put what he calls “established investment principles” into the Bill. The UK Government have already announced a series of actions that they have implemented in relation to the UN guiding principles on business and human rights, much of it already in legislation and unaffected by the Bill. In response to those principles, the relevant parts of our legal system are already in place, and we do not need to refer to a UN document to get any further on investment principles; they have already been interpreted by the UK Government.

Furthermore, we already have a perfectly good Stewardship Code in the UK, issued by the Financial Reporting Council, which deals with ESG matters. I do not believe the Bill alters that at all, so long as ESG principles do not acquire a territorial dimension.

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[Baroness Neville-Rolfe (Con)]

To confirm, I think that is what I said a couple of minutes ago. The sole reason must be that it is financially risky—that it is business risk guidance, not boycotts. My own feeling is that that is a helpful clarification. I am sure that noble Lords will look in Hansard at what I have already said.

If I might now finish, I would very much like to—

[Lord Thomas of Cwmgiedd (CB)]

Before the Minister sits down, which she has indicated she is very anxious to do, I would like to go back to the, in my view, very unfortunate discussion that we have had about the definition suggested in Amendment 27.

As I understand it, it is accepted that financial risk is included within the wording. What is unclear—no doubt in years to come people will pore over the Minister’s speech, so I want another little bit for them to pore over—is: what about financial impact? I think the Minister said that that gave rise to uncertainty, but it would be helpful to know whether, in looking at the way in which decisions can be made, the financial impact can be taken into account. It would be so much better, of course, if we put the words in the Bill and left it not to accountants but to lawyers to deal with in the future.

[Baroness Neville-Rolfe (Con)]

I can reassure the noble and learned Lord that lawyers have been involved in drafting the Bill, as he can probably imagine. I tried to set out quite clearly at the beginning why we felt that the wording we got was right; that included financial impact. I have subsequently clarified the point about motivation and financial risk.

In the excitement, I have lost my place. I was asked about the effect of removing Clause 12, and was hoping to be able to answer the noble Lord. Removing the clause would mean that the ban would not apply to the fund investment decisions of administering authorities of LGPS. The administering authorities are local authorities, which are clearly a core part of the state and are therefore public authorities for the purposes of Section 6 of the Human Rights Act. That is why they are the only pension funds captured by the Bill. We have seen clear examples of local authorities attempting to engage in BDS activity in the past. It would not be appropriate to apply the ban to funds administered by private entities, such as the Universities Superannuation Scheme.

As I have argued before, council tax payers should be able to expect their local councils to exert time and effort on solving local issues, rather than spending time thinking about boycotts of foreign states when, as the noble Lord has said, the beneficiaries expect the responsible authorities to concentrate on returns and the ongoing viability of their investments in the interests of the beneficiaries. If the Bill were to stand without Clause 12, councils coming under pressure to develop their own policies on divisive international issues would be pushed towards an LGPS loophole to implement BDS campaigns.

The priority for these funds should be to provide stability and good long-term returns for the hard-working local government officials who are their members. We now know that this includes the noble Lord, Lord Warner, the noble Baroness, Lady Janke, and others. The Bill helps the administering authorities not to be distracted from this important purpose, and to focus on returns in a responsible, long-term way. For these reasons, I ask noble Lords not to press their amendments and not to oppose the question that Clause 12 stand part of the Bill.