Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Warner Excerpts

Committee stage
Tuesday 7th May 2024 Lords Chamber

Even the Foreign Secretary’s office warned No. 10 about the impact of the Bill on our foreign commitments, and I raised that in the previous group, particularly in relation to the Occupied Territories and the impact on our policy of a two-state solution. We want to work constructively with the Government and I hope that the Minister will listen to our concerns. I think this is a way forward, I hope it can garner support across the Committee and I beg to move.

[Lord Warner (CB)]

My Lords, I support Amendment 19, to which I have added my name, and I will speak to Amendment 48 in my name. Amendment 48 is focused on a simple question: does the statement of compatibility by the Minister on the face of the Bill comply with the terms of Clause 19(1)(a) of the Human Rights Act 1998, or would the Minister have been wiser to make a statement under the terms of Clause 19(1)(b) of that Act?

Just to remind the Committee, the Minister states on the face of the Bill that its provisions

“are compatible with the Convention rights”.

It is, of course, possible for Parliament to pass legislation that is not compliant with convention provisions. That is indeed provided for in Section 19(1)(b) of the 1998 Act. But if we adopt that course, we have to fess up to the fact that although Ministers are

“unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill”.

I recognise that some members of the Conservative Party would find it a badge of honour to flourish a statement of non-compatibility with the Human Rights Act, but I would not have placed the Minister in that group, so I am curious to find out what is going on.

First, however, I must own up to my personal involvement with and attachment to Section 19 provisions in the 1998 Act, when I was a senior policy adviser to the then Home Secretary. At that time, there was a robust debate about whether, despite the sovereignty of Parliament, legislation could be stopped if it breached ECHR provisions. Quite naturally, parliamentary sovereignty inevitably triumphed, but there was concern in the Labour Government at the time that they wanted proper consideration to be given to the ECHR when Bills came to Parliament. With my good friend the late and much-missed Lord Gareth Williams, a distinguished lawyer, Home Office Minister and later Leader of this House, we came up with the idea of a ministerial statement of ECHR compliance on the face of the Bill. That led to the drafting of what became Section 19 of the 1998 Act. This provision was intended to make Ministers stop and think carefully about human rights convention compliance before they introduced a Bill to Parliament.

It is quite difficult to see that this has happened with this Bill. Clause 4 as drafted is a straightforward gagging provision. It stops people openly discussing a full range of possible actions they might take to express their disapproval of an Israeli Government’s continued breaching of international law in Gaza and the Occupied Territories. This places the Bill in breach of Article 10 of the convention—the right to freedom of expression—and therefore in breach of Section 6 of the 1998 Act.

That is not just my view—it is the clear view of Liberty, Amnesty International and many others, including many parliamentarians. People cannot see how Clause 4 can be squared with Article 10 of the ECHR. Liberty has also argued that the Bill constitutes an interference with the rights of freedom of conscience under Article 9 of the ECHR, a view that I think is shared by Quakers, given their beliefs.

In these circumstances, I am at a loss to see how the Minister can make the statement on the face of the Bill that it is compliant with Section 19(1)(a) of the Human Rights Act. When I consulted the clerk about framing an amendment to delete the statement on the face of the Bill, I was told I could not do that. However, they helpfully suggested that I could insert a provision that after the passage of the Bill, there should be a review of its compliance with the Human Rights Act 1998 within a given period. That is exactly what Amendment 48 would do, with particular attention paid to compliance with Article 10 of the ECHR, the right to freedom of expression. If that review found that the Act was not compliant, the Government of the day would then have to decide whether they would go forward and implement the Act, in contravention of the 1998 Act.

I return to the question I posed at the beginning of my remarks. If the Minister still believes that she has placed the correct statement of compliance on the face of the Bill, I respectfully ask her to share with the House the source of the legal advice that convinced her it was the right thing to do.

I turn briefly to Amendment 19, to which I have added my name and strongly support. I will not repeat the persuasive arguments of the noble Lord, Lord Collins. This amendment is an important step towards making the Bill more compliant with the Human Rights Act 1998, but I fear that the Minister’s statement on the Bill’s compliance will not pass muster.

[Baroness Noakes (Con)]

My Lords, the noble Lord, Lord Collins, helpfully explained in his opening remarks the extent to which he agrees with the aims of the Bill but not the means chosen. However, his amendment could open a huge back door to councils and devolved authorities doing what they want in relation to BDS activities, because they would only have to dress up what they want to do as a statement of human rights policy. That statement is not even fully defined as regards what is meant by human rights. This could be a massive loophole. At the end of the day, it would still involve public authorities, including the devolved Administrations, in ignoring foreign policy as set by the UK Government. We must not allow ourselves to get away from the fact that that is crucial. We cannot have public authorities setting foreign policy.

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[Lord Warner (CB)]

I am sorry to interrupt the noble Lord; I am trying to be helpful. It seems to me that it is even worse than he is saying. Clause 4(1) means that a democratically elected person could not even publish a statement saying that, had it been lawful, he or she would have done X or Y. It is not just that they cannot do it; they cannot even talk about doing it, even though they have been democratically elected by much of their population to take action in a moral and ethical way.

[Lord Purvis of Tweed (LD)]

I am most grateful to the noble Lord as that leads on to my next question. It relates to those who are democratic figures in those countries and, indeed, our country.

As regards this country, my reading of this legislation is that, if I, in Parliament, call on the Government to sanction, let us say, a foreign Government’s Minister, or an enterprise or a body operating in another country—as I have done regularly in relation to the Wagner Group, by calling on British enterprises not to trade with those enterprises owned by the Wagner Group —I would be a person under this Bill whom a body would have to disregard. Not only are the Government seeking the nonsense that decision-makers should set aside due diligence on human rights, they are seeking to neuter parliamentarians raising the very concerns that we have raised on a regular basis.

I remind the Minister why this is so important: on 12 occasions, I had called for the proscription of the Wagner Group, and called on any British enterprises to desist from having any relationship with it, before the Government made the decision to proscribe it. Up until the point that the Government made the decision to proscribe the group, which I supported, I was in contravention of this Bill. I was in contravention of it on all the occasions that I called on the Government to do what I asked them to do, which they then did.

The nonsense of this legislation gets serious when it comes to Parliament raising human rights concerns about other countries. One country on the list is the DRC. A country not on the list is Rwanda. I have raised human rights concerns about the March 23 group in the conflict between Rwanda and the DRC. I am prohibited from calling on any British bodies not to trade with a group that is not currently proscribed by the British Government.

I refuse to be neutered in this Chamber, by this Bill, on raising human rights concerns. The Leader of the House is shaking his head from a sedentary position as to how I might be neutered by this Bill. I am sure that he has read the Bill. I am allowing him to intervene on me to explain why I am wrong in my interpretation of this Bill.

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[Lord Roborough (Con)]

My Lords, I am sorry to disappoint your Lordships’ Committee after so many questions asked of my noble friend the Minister. But I am the Minister representing His Majesty’s Government on this group of amendments. I am grateful to the noble Baroness, Lady Deech, and my noble friends Lord Wolfson and Lord Leigh for refocusing the House on these two amendments. I will answer as many of the broader questions as I have time for after addressing these myself.

Let me begin with Amendment 48, tabled by the noble Lord, Lord Warner. This amendment would require the Secretary of State to lay before Parliament a review of the Bill’s compliance with the Human Rights Act 1998, and in particular Article 10 of the European Convention on Human Rights, within six months of Royal Assent. As my noble friend the Minister has set out, the Bill will apply to public authorities as defined in Section 6 of the Human Rights Act. In the exercise of their public functions these bodies do not have their own rights under the Human Rights Act or the ECHR, including under Article 10. The Bill does not apply to individuals and their private functions; therefore, it will not infringe on any individual’s rights under the ECHR.

As for the questions asked by the noble Lord, Lord Warner, about compatibility, the Government remain strongly committed to the UK’s long and proud tradition of free speech and to the ECHR’s Article 10 right to freedom of expression. The Minister has signed a statement of the Bill’s compatibility with ECHR rights. On sharing legal advice, His Majesty’s Government do not share legal advice, but we do act on it.

Nothing in the Bill goes against the European Convention on Human Rights. The ban will apply only to bodies that are public authorities under the Human Rights Act 1998—

[Lord Warner (CB)]

With due respect to the Minister— I am sorry to interrupt when he is keeping to his script—the point I was making was that the certificate that the Secretary of State or Minister signs on the face of the Bill does not just cover the actions of public bodies, it covers all aspects of that particular piece of legislation. I am arguing that there are parts of that legislation that make it impossible to sign with good heart that compliance with the European Convention on Human Rights—and, indeed, the Human Rights Act 1988. It is not just the issues around public bodies, it is about the totality of that piece of legislation being compliant. I gave some examples where it was not compliant. I am very happy to meet the Minister to give him another half a dozen in which it is not compliant. I was asking which legal Minister signed off this as compliant with the Human Rights Act.

[Lord Roborough (Con)]

My noble friend the Minister has signed the statement of the Bill’s compatibility and is comfortable with that. If the noble Lord, Lord Warner, would like to share his specific concerns further to this, I would be happy to look at them.

The Government remain strongly committed to the UK’s long and proud tradition of free speech and to the ECHR. My noble friend the Minister, on bringing this legislation to the House, confirmed that the provisions of the Bill are compatible with the convention rights.

Let me now turn to Amendment 19, tabled by the noble Lord, Lord Collins of Highbury. His Majesty’s Government appreciate the offer of co-operation and a meeting. We would certainly take him up on that very generous offer to hear out his concerns further. Amendment 19 would exempt decisions from the ban that have been made in accordance with a statement of policy relating to human rights produced by a public authority. The Secretary of State would be required to produce guidance on the content of such statements to which public authorities would be required to have regard—a significant word, as pointed out by my noble friend Lord Wolfson.

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Moved by

[Lord Warner]

20: Clause 3, page 3, line 7, leave out subsection (7)

[Lord Warner (CB)]

My Lords, despite the last debate, this amendment brings us to the heart of what I regard as a misguided Bill: Clause 3(7), which effectively provides the State of Israel with a considerable, unique protection, almost in perpetuity and certainly until new legislation is passed to overturn it. I will make three main points to justify the changes to this provision.

First, the primary justification for this extraordinary legislation is that boycotts, disinvestments and other such campaigns not only undermine UK foreign policy but lead to

“appalling antisemitic rhetoric and abuse”,

in the words of the departmental press notice launching this Bill. Yet, many groups in the Jewish diaspora have said that the Bill will not combat anti-Semitism. The Government’s claim that it will has been convincingly challenged by evidence produced for parliamentarians by the organisation Jews for Justice for Palestinians. Its evidence demonstrates that the rise in anti-Semitic incidents is

“correlated closely with spikes of violence in Israel and Palestine, particularly with the major Israeli army attacks on Palestinian areas, not with boycott and divestment advocacy”.

It was that formidable campaigner against anti-Semitism, Dame Margaret Hodge, who said in the Commons that this legislation would increase anti-Semitism.

Secondly, alongside drafting a Bill that is more likely to increase anti-Semitism than reduce it, the Government seem to have used wording in Clause 3(7) that is at odds with the UK’s stated foreign policy, because it includes “the Occupied Palestinian Territories” and “the Occupied Golan Heights” in the protection given to Israel. By treating these two areas as part of Israel, the passage of the Bill would seem to mean that the UK is legitimising Israel permanently retaining two large swathes of territory obtained by acts of war. As the noble Lord, Lord Hain, who is unfortunately not in his place, Amnesty International, and others have pointed out, this would mean that the Bill will violate UN Security Council Resolution 2334, which the UK voted for. The resolution declares Israeli settlements in the Palestinian territories occupied since 1967, including east Jerusalem, as legally invalid and a clear violation of international law.

Thirdly, the Government’s claim for this legislation is that it makes it clear internationally that it is the Government who determine UK foreign policy, not protestors or other levels of government. Most people in this country and overseas would assume, then, that when the Foreign Secretary utters on policy towards Israel he speaks for the Government—therefore, they can rely on him to set out the current policy. With this in mind, I draw the Committee’s attention to a piece in the Times on 22 March with the headline:

“Gaza aid held up by arbitrary Israeli denials, says Cameron”.


In that piece, the noble Lord, Lord Cameron, is quoted as telling the Commons Foreign Affairs Select Committee that it was,

“‘an enormous frustration’ that aid had been ‘routinely held up waiting for Israeli permissions’”.

To make sure that his views were fully understood, the noble Lord seems to have gone on to say that:

“Israel’s ‘arbitrary denials’ of aid being sent to Gaza is now the ‘main blocker’ to providing humanitarian assistance”.


All this on top of suggesting, in February, that the UK could unilaterally recognise a Palestinian state in the aftermath of a ceasefire.

The noble Lord, Lord Cameron, has accompanied his words with deeds, by imposing sanctions on extremist settlers in the Israeli-occupied West Bank who have violently attacked Palestinians. He went on to say:

“This behaviour is illegal and unacceptable … Too often, we see commitments made”—


by Israel—

“and undertakings given, but not followed through”.

I found the noble Lord’s views refreshingly frank, and rather similar to my own. However, I also found it difficult to reconcile them with the wording and timing of the Bill.

We are now in a rather bizarre situation. On the one hand, we have Michael Gove bringing forward a Bill to give unprecedented protection to the Israeli Government —I could, if I were unkind, say that Clause 3(7) could have been drafted by Mr Netanyahu and Likud. On the other hand, there is the Foreign Secretary laying into the same Government for blocking humanitarian aid to a territory in which thousands of women and children have been killed or displaced, and are starving, as a result of Israeli military action.

Any responsible public body decision-maker or international observer would be entitled to be confused about what the UK Government’s policy is toward the current Israeli Government. Should people heed Mr Gove’s Bill or the words and actions of the Foreign Secretary, who has actually seen what is going on in Israel and the occupied territories? What would the Minister’s advice be to any confused citizen? Perhaps she and her colleagues might want to further consider accepting my amendment. I beg to move.