Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Warner Excerpts

Committee stage
Tuesday 14th May 2024 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, there is no one on the Liberal Democrat Benches tonight who is sufficiently expert in international law to intervene at length in this debate, so I will be very brief.

I read the discussions from the last evening we met—I apologise that I was unavoidably away—and I note the argument made that international law is not simply the law but a broad network of treaties, conventions and agreements to which the UK has become a party. Much of it was drafted in the formative years after the Second World War by British lawyers—Conservative British lawyers, under Conservative Governments—in which we played, as Ministers still like to say, a leading role. Some of us are now quite nervous that there are some elements within the current Conservative Party, some of whom are in government, who are not particularly committed to maintaining our established reputation as a staunch upholder of international law.

We on these Benches would suggest that the Government take back paragraphs 6 and 8 of the Schedule, take into account the criticisms that the noble Lord, Lord Verdirame, and others have made, and consider how we can ensure that these are strengthened and clearer, so that we can all agree that there is nothing in the Bill that encourages denigration of international law. All those involved in taking investment decisions should be quite clear that, in dealing with overseas investments, the framework of international law is one that should always be considered and accepted.

[Lord Warner (CB)]

My Lords, I intervene briefly, not because I am an expert on international law but because I have a great sense of déjà vu about the way this debate is opening up by comparison with the previous debate. The issue seems to be the creation of uncertainty about what the law means. That was the issue dominating the previous debate: that the trustees of pension schemes would be left in a state of uncertainty if we did not put clearer language in the Bill. This debate is starting to go through the same process but in another area, where there could be uncertainty about what people do in interpreting this legislation before they make their decisions. We are opening up issues that the Government need to attend to, to make sure that the Bill is clear to the people who will be required to implement it.

[Lord Collins of Highbury (Lab)]

My Lords, I put my name to Amendment 32 and I want to focus my main comments on it. The contribution from the noble Lord, Lord Verdirame, is a helpful one because he is focusing on strengthening this.

One of the problems, when we look at paragraph 8 and the implications of international conventions and the ILO, is that it is sometimes difficult to put it into concrete examples. The problem I had—and the noble Baroness, Lady Noakes, touched on this before—is when something goes into a territorial policy. I think of the debate we had on construction in Qatar and the British companies that were operating in building those sites, where the Qatari authorities were forced to have inspections by the ILO and forced to respond to a report that said their legal standards were not adequate. It could be that, at that time, a lot of investors, and perhaps even public authorities, would say that they should not be investing in companies that are adopting those sorts of laws—namely, those applied by the Qataris. Many textiles supply chains go into, for example, Bangladesh. The biggest fashion industry manufacturer is in Vietnam. The example of the Rana Plaza disaster, which we mentioned the last time we debated the Bill in Committee, required ILO intervention and British companies to say, “We will not invest”. Some of the most popular high street companies used strong leverage to get a change of policy by the Bangladesh Government. These are all legitimate concerns.

The fear is that this legislation will stop people making those sorts of decisions, or even expressing those sorts of opinions. It is that chilling effect again. Whoever replies to this debate—I thought it might be the noble Lord—should focus on the kind of concrete examples I have given, and give us an assurance that paragraph 8 includes all the things that my noble friend mentioned and that we will not have a situation where we are limited to very strict criminal things, which everyone accepts, such as slave labour and forced labour. There are lots of other examples. In the Rana Plaza example, people were forced to work in such dangerous conditions that hundreds lost their lives. Many of them were widows, leaving children to cope on their own.

It is important that we bring this debate back to some sort of reality. What are we talking about? What are the impacts of these sorts of things? We start off with a manifesto commitment on BDS, and now we are into the territory of saying that there will be a limit on what public bodies can do to ensure compliance with proper labour standards—things that this Government have been strongly advocating for.

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[Lord Wallace of Saltaire (LD)]

My Lords, I have been trying to think of the right reverend Prelate as a public body. He is certainly a public authority, but he is at most a hybrid public body. I am not quite sure what sort of hybrid he is in this respect.

My name is on Amendment 33 and the clause stand part notice. I make it clear that this entire clause should go. The exact phrase in the Conservative Party manifesto in 2019 was:

“We will ban public bodies from imposing their own direct or indirect boycotts, disinvestment or sanctions campaigns against foreign countries”.


There was nothing about what they say there, although I note that the department’s memorandum for us says:

“It is intended that the measures will be widely construed”.


This is widely construed to the degree of being ambiguous and imprecise, as so much of this badly drafted Bill clearly is.

Yesterday I ran into the noble Lord, Lord Frost, in the corridor and commented on his rather good article, which was in the Telegraph on Friday, on freedom of speech as fundamental to the Conservative Party. I then asked him what he thought about Clause 4 of this Bill. He looked at me in some confusion and said, “I thought that had been withdrawn already”. I wish that that thought was a precursor of the change.

I have found it difficult to find arguments in support of the clause. I looked through the Commons Public Bill Committee stage, where evidence was taken from the legal adviser to the Free Speech Union, who said:

“My position is that clause 4 really needs to go in its entirety … there is no need—I think it is not necessary either politically or perhaps even legally—to prohibit statements. The mischief that is to be prohibited is the threatened act … This Bill very clearly targets expressions of political and moral conscience, which is to say the form of expression that is most highly protected by article 10””.—[Official Report, Commons, Economic Activity of Public Bodies (Overseas Matters) Bill Committee, 5/9/23; cols. 38-39.]


of the European Convention on Human Rights. It is not just the European Convention; we go back to the Atlantic charter, the fundamental basis on which the post-war international order rested, drafted by British diplomats, and in which the four freedoms include freedom of speech and freedom of belief.

I note that, in the Commons stages, one Conservative MP, David Jones, said:

“This is a Conservative Government. Conservatives believe in and value free speech … This is a deeply un-Conservative measure and I believe that the amendment”—


to Clause 4—

“is right and that the provision should go”.—[Official Report, Commons, 25/10/23; col. 915.]

The Committee should take that seriously. In the Commons debates, another Conservative MP referred to this clause and the ones that follow as introducing the concept of “thought crime”.

The Constitution Committee of this House’s very critical report says:

“The protection of free speech is a fundamental right. In our view, clauses 4(1)(a) and 4(1)(b) unduly limit freedom of speech … The House may wish to consider whether clause 4 should be removed from the Bill”.


I dare to suggest to the Minister that this House will reject this clause and that, when the Bill returns to the Commons, it is quite possible that a number of Conservative MPs who do believe in conservative values of free speech will find it convenient not to be there when the Commons vote again. Therefore, it would be wise for the Government to consider their position and, I suggest, withdraw this clause.

[Lord Warner (CB)]

My Lords, the noble Baroness, Lady Chapman, was kind about my previous speech and almost enticed me to get up and go over some of this ground again. When I spoke on Amendment 19, I was concerned about the statement of compliance with the Human Rights Act that the Minister had signed in the Bill. I probably took my eye off the ball a little by going for that rather than Clause 4 directly. But I said that the reason for the non-compliance was the presence of Clause 4 in the Bill, which was clearly in breach of Article 10 of the ECHR. I asked the Minister to cite the Government’s legal advice that justified that statement of compliance. I was given the usual answer from Government Front Benches, that the Government do not reveal their legal advice.

After that event, I turned my attention, as the noble Lord, Lord Wallace, did, to the Constitution Committee’s report, which is an interesting document. Paragraph 5 says, in bold type, that this clause is in contravention of the ECHR. It does not mince its words; it says it clearly and unequivocally. It is worth looking at the make-up of the Constitution Committee. It has 12 members, five of whom are distinguished lawyers. It has a former Lord Chief Justice, a former Lord Chancellor and three eminent King’s Counsels. It also has a former Conservative Leader of this House: the noble Lord, Lord Strathclyde. The Minister was reticent about quoting the Government’s legal advice, but I am not at all reticent about citing the source of my legal advice: the Constitution Committee.

I can see no grounds why this Government should continue with this gagging clause when a very eminent set of lawyers on the Constitution Committee has said, in words of one syllable, that this is a breach of Article 10 of the ECHR. I will not go back over the ground about the statement of compliance—the issue is clear cut. It is that we remove this gagging clause, which is an impediment to free speech.

[Lord Beith (LD)]

My Lords, I support the amendment that we are discussing, which would remove Clause 4(1)(b), and will speak also to the clause stand part issue that is grouped with it. I declare that I am a member of the Constitution Committee, about which the noble Lord was so complimentary a moment ago. I have also had a long involvement with Liberal Democrat Friends of Israel, and I understand where the pressure for legislation of this kind is coming from, and the concerns that have given rise to it, including some very aggressive campaigns that have occasionally veered towards anti-Semitism and contributed to a real sense of insecurity, leading to a demand for legislation of this kind.

When consideration was being given to a ban on boycotts, I do not think that anybody expected that this was going to include the sort of provisions that we are debating now—provisions to prevent people talking about a situation that has given rise to something as significant as a potential ban on boycotts. That is what this part of the Bill does—this prohibition of statements

“indicating (in whatever terms) … that the person intends to act in a way that would contravene section 1, or … that the person would intend to act in such a way were it lawful to do so”.

That really is the most preposterous set of words I have come across in any piece of legislation that I have looked at in my entire time in either House of Parliament. It is quite extraordinary and preposterous.

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[Lord Warner (CB)]

I have listened with interest to the noble Baroness. Can she explain why the rather talented and experienced Constitution Committee took a totally different view from her and was so concerned about Clause 4? Why is she saying that, in effect, it has got this wrong—that it should not be saying that Clause 4 should be removed from the Bill but should welcome it as delivering the requirements of the Bill? I am rather puzzled.

[Baroness Noakes (Con)]

I have never been a member of the Constitution Committee—I am certainly not a current member—so I simply cannot answer that question. I do not know why it has reached the conclusions that it has, but I believe that they are not in accordance with the impact of Clause 4 as drafted.

When dealing with stopping people doing things and making judgments about whether doing so is right, a balance always needs to be struck. In this case, the Government have tilted the scales in favour of social cohesion. People may think that that is the wrong decision and that allowing elected officials to speak on behalf of an authority in the way that they want to is a price worth paying. I believe that, because of the limited nature of Clause 4 as drafted, it strikes the right sort of balance in this case.

We must remember that this Bill does not stop elected officials speaking in their own capacity, nor does it stop bishops doing so—not that that would ever be an easy thing to do. Individuals in public life can have a big impact on social cohesion, but they are not debarred by this Bill from giving their own views on BDS activities, even though they would have such an impact. In that sense, this Bill is a modest change to the status quo on public statements. It is certainly not as far reaching as people have tried to make out. I would like to get a little balance in this debate.

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[Lord Warner (CB)]

I refer the noble Baroness to Clause 1(7)(b), not just Clause 1(7)(a), which says

“any person seeking to persuade the decision-maker to act in a certain way”.

That sounds to me rather like an individual.

[Baroness Noakes (Con)]

Indeed, but a person who is subject to Clause 1 is a decision-maker. The noble Lord has just referred to the person giving advice or the person seeking to persuade the decision-maker, but that person is not a decision-maker for the purposes of Clause 1, and therefore not for the purposes of Clause 4.

[Lord Warner (CB)]

With all due respect, Clause 4 applies to Clause 1(7)(b), which refers to an individual. We must perhaps ask the Minister to advise us on whether that is true.

[Baroness Noakes (Con)]

We discussed this very point on our first day in Committee, and I think I have stated the correct position on the interpretation of the Bill.

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[Baroness Neville-Rolfe (Con)]

I think that it is necessary to make these points within the framework of the Bill.

I will move on and explain Clause 4, which, in its entirety, is an instrumental part of the Bill. It prohibits public bodies from publishing statements indicating that they intend to engage in activity prohibited by the Bill. That includes statements indicating that the public body would have acted differently if the legislation had not been in place.

I will deal directly with some points that I feel are misconceptions. The clause will not affect the statements of individuals, unless they are speaking as or on behalf of a public authority. The noble Baroness, Lady Chapman, is not speaking for a public authority in her colourful example; I assure her that she would not be in breach of the ban if she were making a statement of intent to boycott. Even when an individual is speaking on behalf of a public authority, the ban applies only to the public authority itself and there is no personal liability for the individual. Thos includes councillors, to answer the question raised by the noble Lord, Lord Davies of Brixton. For that reason, I reiterate—

[Lord Warner (CB)]

I am very sorry, but I must ask the Minister to address the question about Clause 1(7)(b). If she reads that clause, she will see that it could cover any individual who seeks to influence a decision-maker. That could include, in my interpretation, a journalist writing a campaign statement in a newspaper, asking whichever council it is to take action.

[Baroness Neville-Rolfe (Con)]

I will come on to decision-makers.

I reiterate that it is important that the Bill does not breach Article 10 of the ECHR on the right to freedom of speech, and I have already reiterated the Government’s support for free speech. The reason the Bill is compatible with the ECHR is that public authorities do not enjoy human rights, as the purpose of the convention is to protect individuals from undue interference by the state, of which public authorities form a part.

I gave a full reply to the committee in my letter of 15 March, and we have already added extra provisions to the Explanatory Notes, some quoted by the noble Lord, Lord Beith, to make it clear how the sorts of concerns expressed this evening may be mistaken. He provided an example where a local authority debated a motion to boycott that was ultimately not passed, and asked whether the public authority would be in breach of the ban if it explained that the reason it did not support the motion is that it would be illegal under the Bill. In this scenario, it is the individual councillors who said that this is the reason they did not support the motion in the vote. The public authority has not adopted the motion. Its statement merely summarises the individual councillors’ reasoning. It is therefore not an expression of the public authority’s intention to boycott. Even in the case where the councillor was speaking on behalf of that public authority, such a statement would be in breach of the Bill only if it clearly indicated that the public authority intended to engage in a boycott in the exercise of its public functions or would engage in such a boycott if that were lawful.