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.