Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Wolfson of Tredegar Excerpts

Committee stage
Tuesday 7th May 2024 Lords Chamber

[Baroness Noakes (Con)]

My Lords, we should get this into perspective. I say to my noble friend Lord Deben and indeed to the noble Lord, Lord Hain, that this Bill is handling one particular aspect: fundamentally, boycotts and divestment decisions. There is a whole range of law in the Procurement Act, which we passed last year, which sets out the UK’s version of the procurement rules we used to take from the EU—they have been modernised for our own purposes, but they are still hugely complicated.

For a very long time, the Government’s own procurement advice to public bodies was that:

“Public procurement should never be used as a tool to boycott tenders from suppliers based in other countries, except where formal legal sanctions, embargoes and restrictions have been put in place by the UK Government”.


In many ways, this Bill provides a more liberal approach to that blanket proposition, which was in a government procurement policy note and which has been governing procurement for a long time. We need to see this Bill in context and in the light of the rather narrow area it is trying to deal with.

[Lord Wolfson of Tredegar (Con)]

My Lords, unlike the noble Lord, Lord Hain, I think this is a rather good Bill, although I agree respectfully with him that these amendments, particularly those on international law, merit careful consideration by the Minister and the Government. I say that essentially for three reasons, and I can be brief.

First, the general approach in this country is that public bodies do not have their own interpretation of international law. It is the Government who assess international law obligations, because they are binding on the United Kingdom as a state.

That leads me to the second point, which might in part answer that made by my noble friend Lord Deben. The effect of the Bill as drafted is to introduce, by the back door, potentially vast swathes of international law into our domestic legislation. As I never tire of saying in this House, we have a dualist system: international law is not part of domestic law unless and until it is incorporated. So the answer to my noble friend’s point may well be this: if somebody were to say in a domestic court that a public authority was in breach of “the law” because it had not complied with some international law obligation that was not part of our domestic law, the public body’s obvious retort would be to say that it is not subject to that obligation.

The third point is a practical rather than legal one. My concern is that, in the real world, if the Bill is left as drafted it will in practice drive a coach and horses through what it really seeks to achieve, because the courts will be clogged up with arguments, even if they are entirely unmeritorious, as to the scope of international law. I agree with the noble Lord, Lord Verdirame, about Richard Hermer KC’s opinion: it is something of a curate’s egg, and I will perhaps come back to that in a later group. But I agree that, on this point, he is absolutely right to sound a note of warning and to highlight that the Bill as drafted risks undermining the Government’s ambitions for it.

I gently invite my noble friend the Minister to reconsider the Government’s approach to this international law question, which we can perhaps come back to at a future opportunity.

[Lord Purvis of Tweed (LD)]

My Lords, I apologise to the Committee because I did not participate in previous days in Committee or at Second Reading, but as these groups touch on the areas that I speak on from these Benches—international trade and international relations—I want to ask the Minister for clarity on a couple of areas.

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[Lord Purvis of Tweed (LD)]

I do not think that it is nitpicking. I would be considered a person when a body was making a decision based on what I called them to do. I know that I am not a decision-maker, nor am I a Minister of the Crown, nor am I an exempted officeholder, but I would be considered a person calling on bodies to act. If bodies choose to act on what I say, they are currently prohibited under this from acting.

[Lord Wolfson of Tredegar (Con)]

The central point the noble Lord is seeking to make is that he will not be neutered. He would not be neutered because this Bill does not prevent any person seeking to influence a decision-maker. What it will do is prevent the decision-maker acting on those considerations if they are contrary to the Bill. The noble Lord can say what he likes here, in the street or anywhere else. This is a totally futile point.

[Lord Purvis of Tweed (LD)]

I am grateful that Hansard will record the contradictory nature of the noble Lord’s intervention on me, when it comes to the nonsensical nature of the point of seeking to influence groups. Let me turn to why—

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is not my usual role, but I shall be a bit more conciliatory than other speakers. Although I see the Bill as very heavy-handed, almost draconian, and it should never have been brought to your Lordships’ House, at least we have an option now. As the noble Lord, Lord Collins, pointed out, the House can work together. The Minister herself said that she values this House’s expertise. We have not noticed that over the past few years, because virtually everything we suggest gets thrown out. Amendments 19 and 48 would make the Bill less heavy-handed and would mean that public authorities could make decisions of their own when they saw illegitimate human rights abuses. I do not see why anyone would want to reject that idea.

I say to the Government: bring your own amendments if you want to, but, in essence, repeat what we are trying to say here and, perhaps, make this Bill less awful.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will come back to the text of the proposed amendment. I hope it is in order if I use my short intervention essentially to ask the noble Lord, Lord Collins of Highbury, a series of questions. Obviously, he need not reply now, but I just wish to understand how this amendment is meant to work. I will leave the broader points to one side for the moment, although I always want to ensure that the noble Lord, Lord Purvis of Tweed, with whom I often disagree, remains proudly unneutered in everything he wants to say, here and elsewhere.

As I understand Amendment 19 and the proposed clause, it seeks to enable a public authority to publish policy criteria. Those policy criteria, as we see in proposed new subsection (4B), relate to

“disinvestment in cases concerning contravention of human rights”.

The public authority’s criteria have to do two things. First, as the noble Lord said, they “must be applied consistently” to all countries and, secondly, they must be consistent with the guidance published by the Secretary of State, although we are not helped at all as to what that guidance would, might or should be. So let us assume—

[Lord Collins of Highbury (Lab)]

Can I interrupt the noble Lord? I was going to do it at the end, but it might help the Committee. The noble Baroness, Lady Noakes, said that this would create loopholes, and the important point I wanted to make is that there is nothing wrong with public bodies taking ethical investment and procurement decisions. The reason there is nothing wrong in that is that the Government advocate it. As my noble friend Lord Hain said, we have the Government’s current national action plan on the UN Guiding Principles on Business and Human Rights —and by the way, the Minister says in the introduction that the Government firmly believe that

“the promotion of business, and the respect for human rights, go hand in hand”.

So we are being consistent here, in this amendment, with current government policy.

My noble friend read it out; I will quickly repeat that, in current guidance, the recommendation of the Government is to

“continue to ensure that UK Government procurement rules allow for human rights-related matters to be reflected in the procurement of public goods, works and services, taking into account the 2014 EU Public Procurement Directives”—

the noble Baroness, Lady Noakes, mentioned this—

“and Crown Commercial Service guidance on compliance with wider international obligations when letting public contracts”.

So I am not reinventing something; it is there. We have good policy; let us make sure it is reflected in this legislation.

[Lord Wolfson of Tredegar (Con)]

I am extremely grateful to the noble Lord for setting that out so clearly. It brings me to the question I hope he might be able to pick up later, so that I can really understand how this works. We have a public authority, which publishes a set of policy criteria relating to disinvestment in cases concerning contravention of human rights. As he has just set out—and certainly implied by what he just said—it would not be required, for example, to adopt the ECHR in full; it could highlight certain things.

What would happen if a local or public authority decided to say, “We are not going to disinvest or have a policy of disinvesting from countries which do not, for example, allow gay marriage; we will not have a policy of disinvesting from countries that discriminate against women, but we will have a policy, which we will apply consistently throughout the world, of disinvesting from countries that are in control of occupied or disputed territory”? Under the noble Lord’s approach, would that be permitted?

[Lord Shipley (LD)]

Will the noble Lord give way for a moment? This discussion is extremely important, because I do not interpret Amendment 19 as the noble Lord is interpreting it. He says that there could be a statement, and it would have to be applied consistently to all countries. But the amendment also says that it must be in accordance with guidance published by the Secretary of State. The noble Lord has not mentioned the fact that guidance to underpin what a local authority was doing would be in place.

[Lord Wolfson of Tredegar (Con)]

Forgive me, but I think I did mention the guidance right at the beginning of my remarks. Indeed, I made the point that I did not understand that the noble Lord, Lord Collins of Highbury, had identified what that guidance would, should or might contain—so I think we are on the same page.

[Lord Collins of Highbury (Lab)]

Sorry to interrupt, but I thought I did, at the beginning, when I moved the amendment. Sadly, the noble Baroness, Lady Deech, did not refer to my opening remarks when I moved it. I made it absolutely clear that there is a difference between a public body having an ethical investment and procurement policy and an organisation which, as some individuals are trying to do, seeks to target Israel alone, and have standards for Israel that are completely different from those for other countries. I made that absolutely clear.

[Lord Wolfson of Tredegar (Con)]

To be absolutely clear, my question, which I hope the noble Lord will pick up when he responds, is this. My putative public authority has a consistent policy, which it applies consistently to all countries around the world, of not disinvesting merely because a foreign country does not allow gay marriage, or treats women in a discriminatory fashion, but of disinvesting when a foreign country is in control of occupied or disputed territory. Would that be permitted, or not permitted, under the noble Lord’s amendment? I look forward to his answer in due course.

[Lord Mann (Non-Afl)]

My Lords, there are a couple of observations, one of which has been rather lost in the debate. The first one has not. I merely make the observation that I am increasingly concerned by the concept that the implementation of legislation could be at the discretion of the Foreign, Commonwealth and Development Office—whether it is run by Robin Cook, or the noble Lord, Lord Hain, or the noble Lord, Lord Cameron, or Ernie Bevin.

There are different flavours of Foreign Office, but my observation of the Foreign Office over the years is that it often manages to face two ways at the same time. Indeed, it might well regard that as a key part of the art of diplomacy. One can therefore read into Foreign Office policy almost anything one wants to do at any one time. The Foreign Office often makes quite a virtue of presenting a particular side to one group of people and another side to another group of people. However great those running the Foreign Office of the day might be, they are liable to change in the future. So I question whether that, as a basis for legislation, is sensible.

The key point I want to make is one that was made by the noble Lord, Lord Collins, as I understood him, at the beginning. Governments come and go. There will be a general election. Who knows who will be in power after that? There will be another one after that, in however many years—perhaps five years. Who knows —and who knows who that Government will be? There will be different flavours of government—but legislation, unless it is altered by Parliament, will remain.

The question of double standards in foreign policy is a fundamental part of the IHRA definition of anti-Semitism—a definition that was adopted first by the United Kingdom, in 2017, before any other country, but which has now been adopted by many countries. Pertinent to this debate is the fact that it has been adopted by virtually every political party represented at Westminster, including the Labour Party, the Conservative Party and the Liberal Democrats.

Within it, the concept of double standards against the State of Israel, judging the State of Israel in ways in which one would not judge any other state, is rather fundamental. It is there, I guess, particularly because of what people have said, for example, in the United Nations. I am not talking about the legitimacy or otherwise of any specific United Nations vote or decision, but what one can objectively demonstrate is that there has been a huge number of decisions relating to the State of Israel, far outweighing, usually, every other country in the world put together. That, I think, could rationally be argued as therefore being a double standard in approach—of unduly concentrating on one member state of the United Nations and not being equal handed. The IHRA definition is quite specific that that should not happen, which is not the same as to say that one should not be vehemently critical, if one chooses to be, of the State of Israel, its Government or its policies. Many people are, including many people in the Israeli Knesset. It does not state that that is in any way illegitimate or anti-Semitic, but it does say that double standards should not apply.

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[Lord Shipley (LD)]

My Lords, this has been an extremely helpful debate. As the noble Lord, Lord Mann, identified, there is a conundrum in the Bill. The Minister may wish to reflect on the discussion that has taken place. She said after the first group that she valued the expertise of this House and would go away and think about how the Government would respond. I took that to mean that they may make changes on Report, which is theoretically likely to come in about three weeks’ time, but may take longer.

I have concluded, having listened to so many opinions—I am not a signatory to Amendments 19 or 48, though I have huge sympathy with them—from my noble friend Lord Purvis of Tweed, the noble Lord, Lord Collins, the noble Baroness, Lady Jones, and others, that it would be useful if the Minister would consider trying to bring all those opinions together into one place to talk further. That is the only way in which progress on this Bill will be made.

I think that I heard the noble Baroness, Lady Noakes, say that you cannot have local authorities setting foreign policy. I do not think local authorities want to do so, are doing so or have any ambition to do so. However, they are concerned about human rights and doing the right thing in their procurement and investment policies. Nevertheless, the issue must be discussed.

I took Amendment 19 to mean simply that a statement of policy relating to human rights would need to be considered by those seeking procurement or making investments, and that the statement may not single out individual nations and would therefore have to be applied consistently, as has been confirmed. However, it would have to be in accordance with guidance published by the Secretary of State. I find the concerns we have been hearing against Amendment 19 unfounded. The only solution I can see to this is that the offer made at the outset by the noble Lord, Lord Collins, should be taken up by the Minister. It would be really helpful if that could happen, because otherwise the passage of the Bill on Report will get more and more difficult.

[Lord Wolfson of Tredegar (Con)]

I invite the noble Lord to look at proposed new subsection (4D) because, with the greatest of respect, it is not correct to say that the policy would have to be “in accordance with” the Secretary of State’s guidance. The amendment says only that they must “have regard to” the Secretary of State’s guidance. This is not nitpicking; there is a really important distinction in law between having to follow guidance and merely having to have regard to it. That is one of the reasons why I was asking the noble Lord, Lord Collins of Highbury, those questions.

[Lord Shipley (LD)]

I understand the noble Lord’s point. I am quoting from the Member’s explanatory statement which is part of Amendment 19 in the Third Marshalled List of Amendments.

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[Lord Collins of Highbury (Lab)]

This has been an incredibly useful discussion and debate, but this is not a probing amendment. It is an attempt to bring two sides of the House together. I made it very clear in my opening remarks that we oppose the BDS campaigns we have seen. I do not accept them. They are very damaging. I think I made the point that they have sought to target Israel alone, hold it to different standards, question its right to exist—which is wrong—and equate the actions of the Israeli Government with Jewish people, in doing so creating the very hate that my noble friend raised.

To be honest, I feel as if I am in a Catch-22 situation. On the one hand, the noble Baroness, Lady Noakes, says that there are loopholes, but this is not a restrictive, confined piece of legislation, dealing with BDS campaigns specifically. It has much wider implications. Everyone keeps talking about public bodies making foreign policy. No one questions the right of the Government to make foreign policy. The Government’s duty is to speak for the whole country on foreign policy —no one doubts that—but the Government have placed a duty on public bodies to have ethical human rights considerations in their investment and procurement policies.

We will come on to it in other groups, and I know we keep raising these things, but the sad thing is that the Bill damages our foreign policy. It will implicate us in undermining the very resolutions that we have tabled and supported at the United Nations. That is why we are so concerned, and that is why this amendment, far from giving public bodies the responsibility to decide on foreign policy, agrees with this Government when they speak about—I will quote again, because I think it is really important—

“belief that the promotion of business, and the respect for human rights, go hand in hand”.

When it comes to the statement that a Secretary of State may produce as guidance, is it that public bodies “will have” or “must have” regard to it? I have had many debates on previous legislation about what that might mean, particularly over codes of practice, as the noble Baroness knows, so I am happy to enter into legal dialogue about what that means. It is not unusual to require public bodies to follow that sort of guidance, and we can come up with words for that.

The noble Lord, Lord Wolfson, asked questions about the Occupied Territories. We have an existing policy on the Occupied Territories, so if a public body says it will not invest in the Occupied Territories, that is in accordance with the guidance issued by this Government. If it says it is going to ban any investment in Israel, that would be in breach of the code or whatever guidance, because we are against singling out Israel.

Somebody mentioned gay rights. I have been a campaigner for global gay rights for many years, and one of the things I have resisted doing is advocating blanket boycotts because I know that, where we have investment and contacts, the leverage, guidance and engagement we can have can make a big difference. We have changed people’s attitudes through that. The problem with blanket boycotts is that they have the complete opposite effect.

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord for, I think, giving an answer to my question. My understanding, therefore, is that the answer to my question is yes. The public authority could make the distinction that I identified. In other words, under this amendment a public authority could refuse to trade with Israel on human rights grounds but could none the less trade with Saudi Arabia. That would, as I understand it, be the consequence of the argument. Have I understood correctly?

[Lord Collins of Highbury (Lab)]

No, the noble Lord is not right. That is not what I said. We have guidance about specific investment in the Occupied Territories. That is what the Government issue now. Why is that so confusing?