Economic Activity of Public Bodies (Overseas Matters) Bill (First sitting)

Luke Evans Excerpts

Committee stage
Tuesday 5th September 2023 Public Bill Committees

[Dr Luke Evans (Bosworth) (Con)]

Q Councillors Deering and Jamieson, this question is to both of you. Councillor Deering, you said the point around pensions should not be political. In your experience as councillors, how much of an increase have you seen in talk about, for example, previous slavery, the environmental side, Israel and Palestine, China and Russia? How much more of this debate is happening at a local council level, as opposed to 10 years ago? Was this debate happening then? Is it becoming more prevalent?

Councillor Deering: Well, I do not quite go back 10 years in local government, so I cannot quite answer for that period. I became a county councillor in 2017, I think, but I have been involved in the finance and performance side more or less ever since day one. I would say that the answer to your question is: a bit. Not only is there slightly more of this discussion because of general issues and political issues, but also in part because all councils are under financial pressure and every now and again there is a view expressed by someone—from wherever they might be on the political spectrum—that, “There seems to be an awful lot of money in the pension fund, and can’t that somehow be used?” Obviously that is inappropriate. In our council, everybody understands that, but it is a frustration that is expressed from time to time. Coming back to your question, yes, there is a little bit more of what you asked about, but maybe that is because there are an increasing number of events in the world that might lead to the thought being ventilated.

Councillor Jamieson: The modern world—with the increase in social media, the ability for electronic petitions and so forth—has meant that councils are subject to more petitioning and more demand from groups of the public. It is easier to put these things on the agenda than it was in the past, so I think it is inevitable that we are seeing more of whatever it is that we are talking about compared with 10 years ago; in fact, I can go back 14 years, so compared with 14 years ago.

[Kim Leadbeater]

Q I will pick up on a point that has kind of been covered already. Do you have anything further to add on the issue of freedom of speech, or any further concerns that this Bill will undermine local democracy by restricting what councils and councillors can say and do? You are very fortunate in your area if you have not been impacted by some of the more contentious issues that the Bill covers, but I have some concerns around freedom of speech for local representatives and undermining local government autonomy. Is there anything else you want to add?

Councillor Deering: Personally, I am a very big believer in freedom of speech, and just freedom. If I might make a huge point, it is one of the things that this country is pretty good at, actually. I am very strongly in favour of it and would not want to see it impinged, but we all need to find a way to work together and achieve objectives. I repeat that our institution is not particularly vexed about the issue that underlies your question; we can see it, but I do not know that we are vexed by it.

Councillor Jamieson: If I can come back to this—I am in danger of repeating myself—I do think it is important that there are some tweaks to the legislation. One is that writing the minutes of a meeting that reflect a view expressed in the meeting should not be a reason to be referred to the Pensions Regulator or for judicial review. Also, if the reference to a decision having been “influenced” was changed to “substantially influenced”, that would make life a lot easier.

I also have a big concern with judicial reviews. My biggest area of experience with judicial reviews is in the planning system, where they can be hugely expensive and time-consuming. I really do not like the fact that councils will be subject to judicial reviews, which will make vexatious JRs and so forth much easier. We are covered by the Pensions Regulator, and if the legislation were changed to say that it is the Pensions Regulator that makes the decision, and the Pensions Regulator could then be judicially reviewed if somebody felt it had not made its decision correctly, that would reduce the risk of vexatious JRs. That should also be linked to who can claim that they have been impacted. At the moment, pretty much anybody in the UK is in a household where there is a ratepayer; does that mean that anybody can mount a challenge just on the basis that they are potentially influenced or potentially a taxpayer?

The definition of who can mount a JR should be tightened, then, but ideally we should remove the ability to JR councils for the decisions. We should be monitored by the regulator and complaints should be made to the regulator, which should make that decision. If the regulator makes a decision and a member of the public is not happy with that decision, they should JR the regulator, not the council. I think that would make people feel a lot more comfortable about expressing their views and not having a vexatious JR or worrying about whether a minute in a meeting might contravene the rules or whatever.

Economic Activity of Public Bodies (Overseas Matters) Bill (Second sitting)

Luke Evans Excerpts

Committee stage
Tuesday 5th September 2023 Public Bill Committees

[Dr Luke Evans (Bosworth) (Con)]

Q Professor Tomkins, you talked about the different comparisons out there. Which country has the best example of this type of legislation and why?

Professor Tomkins: The states in the United States that have pursued anti-BDS legislation have probably gone further than anybody else I am aware of, although perhaps there are jurisdictions that I am not aware of; my research has been restricted to the United States, France and the UK. There would be, I think, significant human rights implications for the United Kingdom, given its commitments under the ECHR, were the UK to pursue the sort of anti-BDS policy that we see in some of those states. I think some significant article 10 issues would arise in relation to that sort of policy. I cannot speak for the Government, but that might very well be why the UK Government have elected not to proceed with that sort of policy.

The approach that the French authorities have been taking is very different, again, from what the present Bill envisages. The French seem to have seen the issue much more as one of public order and freedom of assembly, and are going directly after those who engage in anti-BDS demonstrations and protests in France. What we have in front of us is a Bill that is much more carefully—certainly much more narrowly—targeted on the two specific areas where public authorities in the UK, unfortunately in my view, have engaged in anti-BDS campaigning targeted at Israel and the occupied territories with regard to investment and procurement decisions.

This is not a general “Let’s ban BDS” Bill, or even a specific one with regard to public authorities. It is specifically and carefully targeted at the two core areas where, historically in the UK, public bodies have engaged in anti-BDS activities with regard to Israel when it comes to procurement and investment. Because it is carefully targeted for the UK, my answer to your question is that for the UK this is the best Bill.

[Dr Evans]

Q That is very useful. Thank you.

I have a wider question for the whole panel. This is written in the negative, in the sense that it indicates political or moral disapproval for foreign states. Do the panel have any thoughts about writing it neutrally, so that neither the pro nor the anti side fit in? In other words, a public body should not get involved in these kinds of arguments at all. Is that a position you agree with, Professor Tettenborn?

Professor Tettenborn: That is a very good question. Speaking as a professor in an ivory tower, I would immediately agree with you; speaking as a practical man, I would say that you are making a rod for your back if you start imposing abstract legal obligations of neutrality. I think it makes enforcement far easier and life far more difficult for clever lawyers if you do what is done in this Bill: “Thou shalt not say that you disapprove of a particular regime.” I do not think there is a problem of local authorities saying, “We think Venezuela is the best thing since sliced bread, and we will do whatever.” The Bill does answer the mischief.

[Dr Evans]

Q That is very useful. Mr Hoar, what do you think? The civil servant is supposed to be neutral, for example. We have already discussed the realms of where this body goes and who is actually in charge. All the panellists stated that they were not sure where the role of Ministers went. For the likes of the NHS or the police, is there not an argument for saying that there should be neutrality when it comes to foreign policy that deals with issues such as those in front of us?

Francis Hoar: There is an argument, and you have made it, but I do not think that it is a good enough argument for legislating, because you need to be very careful when you are legislating in respect of what is enforceable. Adam has given some examples of quite extreme—I think very extreme—classically American approaches that go very far down the line in terms of enforcement in another direction, in respect of companies that have or do not have dealings with Israel. To require and enforce neutrality would go far further than is needed. The mischief that the Bill addresses is the divestment campaign, based on political objectives that are potentially contrary to UK foreign policy, and that is where it should lie.

I just want to put down a marker that—if you will allow me, Dame Caroline—I have something to say about legal professional privilege.

[The Chair]

Yes, but do keep an eye on the clock, because there are two more Members who have indicated that they want to ask a question, and we have only 10 more minutes.

Francis Hoar: Thank you. On legal professional privilege, the answer is not quite as straightforward as has perhaps been represented. I think that the Government’s line is that the answer is in clause 7(9), which is to defer to the data protection legislation. The Data Protection Act 2018 has various provisions that restrict the requirement to provide legally professionally privileged information. For example, schedule 11 has a tailor-made restrictive provision:

“The listed provisions do not apply to personal data that consists of…information in respect of which a claim to legal professional privilege…could be maintained”.

I think legal professional privilege is extremely important; I entirely agree with Mr Norris about that. Obviously local authorities and other public bodies will be receiving advice on what could be quite complicated circumstances. I think it would be far more straightforward, though, to mirror that legislation in clause 7: you could just add a provision copied straight from paragraph 9 of schedule 11 to the 2018 Act. That is what I suggest that Parliament should do.

Professor Tettenborn: You will get exactly the same answer from me—he has taken the words out of my mouth.

[Dr Evans]

I have no further questions.

[Kim Leadbeater]

Q Almost reluctantly, I return to clause 4. I have been thinking about the practical repercussions of the Bill, and I have to say that my feeling this afternoon is that this is going to be pretty messy. If we are asking elected officials in council chambers up and down the country to say, “Now I am speaking in a personal capacity, and now I am speaking in my capacity as an elected official,” it feels like that would be very messy. Surely, as advocates of freedom of speech—as a number of members of the panel have said—that can only have a worrying effect in shutting down debate and discussion. That can only have an undemocratic outcome.

Professor Tettenborn: That is a very interesting point, if I may say so. There might be a simple way around it: we could have an extra subsection in clause 4 that said, “Nothing in this Act affects the right of any member of a public authority to speak in a private capacity.” Just saying it out loud provides a safe harbour; it means that people do not have to go to a lawyer to look up a law, or at least they do not have to go to so many lawyers. I think that might be helpful.

Professor Tomkins: I share everybody’s concern that we must take freedom of speech very seriously—I think that that is a very important set of concerns to raise—but there are two things to say.

First, what Professor Tettenborn has just described is already the state of the law. The way in which we approach rights under the Human Rights Act is that rights are stated generally, and any exceptions to those rights must be narrowly tailored and stated specifically. If there is doubt or ambiguity, it falls on the side of the right, not on the side of the exception. That is already, in broad terms, the legal position through the United Kingdom—as it should be, in my view. Adding extra words to clause 4 to deliver that effect will not have any effect, because it is already the legal position.

I remind the Committee that clause 4 is very narrow in scope: all it says is that somebody who is subject to section 1 may not say that they would have made a procurement decision or an investment decision different from the procurement decision or investment decision that they have made, by force of this legislation. It seems to me that all the members of this panel are of the view that that is perfectly compatible with article 10 of the ECHR, for all the reasons that we have rehearsed; and if it is compatible with article 10 of the ECHR, it is also compatible, I think, with our domestic standards with regard to free speech. For all those reasons, and notwithstanding the fact that I take free speech incredibly seriously, I genuinely do not think that there is a free speech issue with regard to this Bill.

Economic Activity of Public Bodies (Overseas Matters) Bill (Third sitting)

Luke Evans Excerpts

Committee stage
Thursday 7th September 2023 Public Bill Committees

[Dr Luke Evans (Bosworth) (Con)]

Q There has been much discussion with other witnesses about the need for clause 4. I have a question for Jonathan Turner: do you agree that clause 4 is necessary, and do you think it is compatible with article 10 of the European convention on human rights?

Jonathan Turner: Certainly parts of it are necessary. Otherwise, you have the Leicester City Council type of approach of saying, “We are supporting boycotts. We want goods from a particular territory to be boycotted as far as the law allows.”

That is deeply problematic. First, it has the same impact on community cohesion as any other BDS measure that targets a particular country and indirectly targets a particular ethnicity. Secondly, it creates a degree of confusion and difficulty for the staff who have to implement it: they have to work out what the law does allow in terms of boycotting, they have to find out what the facts are, they have to go to the lawyers, and there will be arguments about it. The whole thing becomes a mess and discourages them from accepting certain tenders. They are further discouraged by the fact that they might offend some of the councillors who were so vehement about passing the measure. It has a chilling effect on the public authority and the staff who are left dealing with it. That is what I see as the primary target of this provision.

As to whether it conflicts with human rights requirements: no, it does not. It only binds public authorities. It does not stop individual members saying, “I support BDS. I don’t like what such and such a state is doing.” It only stops a public authority saying that. Public authorities, as we know from the House of Lords decision in the Aston Cantlow case, do not have human rights under the European convention on human rights and the Human Rights Act. I think that is why they have chosen to do this by reference to section 6 of the Human Rights Act and its definition of “public authority”.

[The Chair]

Mr Barrett, is there anything you want to add?

Steven Barrett: No, because I cannot answer the necessary question because I think that would be a personal and political opinion. I can say that it is lawful and that I agree that it would not breach article 10.

--- Later in debate ---

[The Chair]

Does anyone have anything to add to that? No? Okay. I will come next to Dr Luke Evans.

[Dr Evans]

Q All of you were very clear to set out your position on BDS for the individual—namely, that you think it is right. I think everyone here would agree that it is an individual choice. The Bill is about public bodies and their position on BDS. Does your organisation support the idea that public bodies should be able to choose to carry out BDS—yes or no? I will just go down the panel for answers.

Yasmine Ahmed: What is very clear is that our organisation says that public bodies have to discharge their responsibilities under business and human rights of the UNGPs, and they have a responsibility to comply with international law. That is the very point that we are trying to make here. Let us set aside BDS, because what the Government are doing with this Bill is stifling the ability of public bodies to discharge the Government’s own responsibilities and obligations under the UNGPs and under international law. That is what this Bill is doing. That is the effect of the Bill and that is the problem with the Bill.

I wholly agree with Peter’s position on BDS, as does Human Rights Watch, and the right of individuals and the importance of people being able to advocate for the rights of Palestinians as they advocate for the rights of other individuals, but that is not what we are talking about here, because the effect of this Bill—actually, the crunch of this Bill—is that it stops the Government complying with their own responsibilities and international obligations.

[Dr Evans]

Q Very quickly, to come back on that point, do you think that foreign policy is the remit of local authorities or national Government?

Yasmine Ahmed: What I think, as I have said, is that when a public body is making financial decisions on procurement investment, it should take account—it has to take account—of the human rights and environmental implications of what it is doing. That is the answer.

[Dr Evans]

It is an answer to a separate question.

[The Chair]

Q I am sorry, but you have had two questions. Very briefly, because we are running very short of time, I wonder if the other two witnesses want to add any brief point to that.

Peter Frankental: I will just add that a decision by a public body not to procure with a tenderer should not necessarily be seen in terms of BDS. It is not necessarily a boycott; it is a means of effecting due diligence. If it is done in a way that is proportionate and on a case-by-case basis, as the vast majority would be, I would not see a problem with it.

I will just add something from the Government’s impact assessment of the Bill. It is made absolutely clear in the impact assessment that there is no definitive evidence linking public procurement and investment to discrimination on grounds of race, religion or belief. That is set out in three paragraphs of the impact assessment—paragraphs 60, 61 and 64. So, the main premise behind this Bill, that it is necessary to prevent public bodies from engaging in antisemitism, is not compellingly evidenced, according to the Government’s impact assessment.

Only one procurement case is given, that of Leicester City Council, which took a decision not to procure with Israeli settlements. That was challenged in the courts on grounds of a breach of the public sector’s equality duty, and the Court of Appeal found that Leicester City Council had not breached its equality duty, was not being antisemitic and was mindful of community cohesion, and that its decision not to procure from settlements was based on a respected body of international opinion, including the UN, the EU and the UK’s own policy on not recognising the settlements as legal. It is perfectly possible for public bodies to take these decisions without that being seen within the sweeping form of BDS.

--- Later in debate ---

[Wayne David]

Q Following on from that very point, your two papers make the point very strongly that the Bill contradicts, or at least strongly questions, the British commitment to international law. Could you expand slightly on that because, as we all know, the British Government are firmly committed to international law? Are you suggesting that this questions at least the Government’s commitment to international law?

Richard Hermer: Yes. I am mindful that we have only 15 minutes, probably now 10. Can I just give you a brief framework, because I think I have to disagree with the outline that Mr Barrett gave you? International law has always been key to this country, and very broadly speaking it operates on two levels. The first is on the international plane. That is our obligation to comply with international law at the international level. Secondly, in so far as it has been incorporated into English domestic law, the Government have to comply with it on a domestic level.

It is the international law level that I flagged up first in my written advice. As a country, we have always played a leading role in upholding and, indeed, creating international law. Both main parties have a proud history of that. It has fallen into slight disrepute in more recent times as we have had some legislation that expressly seeks to avoid our international law obligations, but generally speaking, that is something we can be proud of. There are two aspects in which that is relevant: first, because the Government have contended that this does comply with our international law obligations, and secondly, because the Committee will no doubt wish to ascertain whether it in fact does or there is a risk that it does not. I hope that answers your question, Mr David.

[Dr Evans]

Q We heard from a witness in the session the other day about comparisons. His position was that the Bill is relatively somewhere in the middle compared with somewhere like France or some of the states in the US. Given your experience, what is your thought on how this fits into the international comparisons?

Richard Hermer: There are some examples of American states passing what I would describe as more extreme versions of this. France is interesting because the Strasbourg court has looked at France on two occasions and the most recent one upheld that its laws were incompatible with article 10. There is not much else out there by way of example. Israel has its own laws on BDS. I am not sure where that takes us. Ultimately, Parliament has to look at this Bill on its face. How it stands up in comparison does not tell us anything about international law—it might help with the context, but beyond that, I am not sure that it would necessarily help the Committee.

[Ms Qaisar]

Q Thank you for joining us today. Clause 4 has been referred to as a gagging clause by some. Why can it be seen as so problematic?

Richard Hermer: I am firmly of the view that it is incompatible with article 10 of the European convention on human rights, which is incorporated into our law via the Human Rights Act. I have listened carefully to the views of others, not least the way that it has been explained by the Minister, and I respectfully disagree.

There are two elements to this. First, who does it bind? There is no dispute that it does not bind a public authority per se, but it would undoubtedly bind a leader of a council or a vice-chancellor of a university—that is, the full array of public authorities or bodies acting as a quasi-public authority. Certainly, it is incapable of engaging the free speech of those individuals. Secondly, there is an analogue to the free speech of the individual in article 10, which is also the right of the public to have information. This engages article 10 in both those ways.

Once we have engagement of article 10, it then falls to the Government to justify it under article 10(2) I have set out in my first opinion the text of article 10(2). There are a number of hurdles that a Government would have to pass. We should also remember that this is not just in the context of BDS; this is in the context of any country and any conflict. I set that out in paragraph 34 of the opinion that the Labour party published. In order to establish that there was no breach of article 10, it would need to be shown that the restrictions were necessary

“in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

It is almost impossible to see how there could be a justification here. As matters stand, this would be deemed incompatible with the Human Rights Act.

Economic Activity of Public Bodies (Overseas Matters) Bill (Fifth sitting)

Luke Evans Excerpts

Committee stage
Tuesday 12th September 2023 Public Bill Committees

[Felicity Buchan]

I will go into detail on it. Give me one minute and I will go through all those scenarios.

[Dr Luke Evans (Bosworth) (Con)]

As Members of Parliament, we are always having to declare our interests if we think there is going to be a conflict. I asked a question yesterday about veterans’ health. I am the honorary president of the Royal British Legion. When discussing such topics, particularly when in front of the media, we know exactly where there could be a conflict of interest and therefore make the determination that it should be declared. We should therefore allow the legislation to stay as it is, because the distinction is clear between speaking on behalf of a public body and speaking as an individual elected to represent a point of view.

[Felicity Buchan]

I agree. That is the distinction between representing a public body and speaking as an individual, even if someone is an elected councillor.