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

Steve McCabe Excerpts

Committee stage
Tuesday 12th September 2023 Public Bill Committees

[Chris Stephens]

I am afraid we are not convinced by the Minister’s reply, and we will push some amendments to a vote. The amendments themselves refer to international law. Indeed, the Labour party’s amendment 14 defines genocide as having the same meaning as described under the International Criminal Court Act 2001, so that should allay some of the fears voiced by Government Members. For completeness and tidiness, I will push amendments 18, 20 and 21 to a vote and I will yield amendment 19—

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

I have an absolutely simple question. I do not know whether the hon. Member knows the answer, but I have been wondering about this. I do not think any of us here would object to the idea of having some genocide provision, and I am conscious that my colleagues have referred to the International Criminal Court. Does the hon. Member know whether the situation affecting the Uyghurs at the present time would be caught by that provision?

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to understand what the Scottish Government might choose to do in the context of independence if they had the power to have particular international procurement policies. That is epitomised by their current work on producing a series of papers that look at the detail of what an independent Scotland might look like. Will the Bill hamper those papers, Minister? Clause 4 is simply unworkable and should be removed from the Bill in its entirety.

[Steve McCabe]

I have to say that I agree with that last comment—I think clause 4 is unworkable, and it adds nothing to the Bill. It is a bit like clause 3(7). If anything, it undermines some of the intentions behind the Bill. Not surprisingly, it has been referred to as a gagging clause. It is virtually Kafkaesque, because it is coming a bit close to thought control. We are asked to accept that a person is not only prevented from doing something that contravenes clause 1 but that they are to be prevented from saying that, if it were perfectly legal to do so, they would want to do it. It would appear that they are not allowed to think that either. As I understand it, the Government say that the justification—this is an honourable aim—is that they are trying to protect community cohesion.

I ask hon. Members to pause for a second and work out how many people they know, and what institutions, would argue that community cohesion is being protected and safeguarded by these measures. The clause might prevent a person from saying that they intend to contravene clause 1 or that they would implement decisions that would, effectively, contravene clause 1 if it were legal to do, but it does not prevent them from saying a whole series of other abusive and offensive things about the state of Israel or anywhere else. In fact, it gives them a licence to say all those other things, and there is not a thing that can be done about it, provided they stay within the limits of existing law. I cannot see how this restriction is going to protect community cohesion. It is likely to have the opposite effect and to give those who do not share the Minister’s objectives on BDS a licence to look for ways to be abusive and offensive and still stay within the limits of the law.

I share the Minister’s desire to protect community cohesion and, as I have said, her overall objectives on the Bill, but I ask her to reflect on whether the proposals will really have the effect she seeks or whether it might be smarter to withdraw what is a pretty dysfunctional clause and go back to the drawing board to see whether there are more practical ways in which we could unite on protecting community cohesion.

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to follow the passionate and high-quality contributions from the hon. Member for Airdrie and Shotts and my hon. Friend the Member for Birmingham, Selly Oak. I rise to address the issue of whether clause 4 should stand part of the Bill, because the Opposition believe that it should not. As we have heard, this is the so-called gagging clause, and colleagues will remember the significant discomfort about this provision on both sides of the House on Second Reading. It takes the Bill far beyond the existing consensus on combatting BDS actions that target specific states and into the realms of placing serious restrictions on freedom of expression.

Having listened carefully throughout our proceedings, I still cannot understand why the Government are so attached to clause 4. The road it takes us down is not helpful, and it will only muddy the waters in terms of what the Government seek to do. Let us be clear what clause 4 does. As we have heard from colleagues, it prohibits public bodies—yes, the entity but, in reality, the people who make it up—from making a statement that they would breach clause 1, were they able to, as a result of moral or political disapproval of a foreign state’s conduct. It is one thing to say that they cannot do it; now, they cannot even say that they would wish to—they cannot even talk about it.

We have heard the Minister’s qualification, and I will turn to it shortly. However, we must assess what is on the face of the Bill, which is a really bizarre limit on freedom of expression and contrary to the British values on which we pride ourselves. I know that there are Conservative colleagues who pride themselves on being free speech champions—indeed, it is a big part of what they do in this place and online—and I say to them that this may well be their moment to prove that.

I pay tribute to my right hon. Friend the Member for Barking (Dame Margaret Hodge), who spoke so powerfully on Second Reading about her experiences fighting the British National party and about why this clause cannot stand. She said:

“arguments are never won by suppressing democratic debate”.—[Official Report, 3 July 2023; Vol. 735, c. 615.]

I agree. That is a lesson that politicians on both the left and the right are still wrestling with—certainly in the online space—and need to learn.

There is also a wider problem. This is part of a broader range of efforts by the Government to curtail free expression—a legislative programme that has whittled away at the civic space over many years. That includes the Trade Union Act 2016, the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014, the Public Order Act 2023 and more. The Bill adds to those as yet another unacceptable fetter on free expression. There is consensus to make progress on the Bill, but clause 4 is a particular sticking point.

We have heard from the Minister, in the evidence sessions and today, some admirable attempts to clear this up. She has said that this is a very narrowly understood restriction and that individuals who may be a decision maker on one day can talk in a personal capacity on another, when they are not making the decisions. I think that fails on three fronts.

First, that is not what it says on the face of the Bill. Clause 4(1) states that a statement of intent to “contravene section 1”, were that permissible, is not allowed and, at line 15, the words “(in whatever terms)” are added. I cannot square “in whatever terms” with what the Minister has said. If someone was on a television programme, could they have a disclaimer and set aside the “in whatever terms” provision? I do not think those two things sit together, and I feel confident that an enforcement authority relying on judicial review for oversight would fall back on what is on the face of the Bill, rather than what we have heard.

Secondly, I would argue that a person who is a decision maker because they lead a local authority, is a cabinet member or is even, perhaps, a member of the council or a Mayor is always a decision maker. I do not think that they can just turn it off or on. I do not think that saying that is credible. I know that when people overreach in what they say on social media or in the media more generally, they might try to disassociate themselves from it in an attempt to shield their colleagues, but I do not think they get much shrift in that. Never mind when we get to the conflation where—we have current precedent—a leader of a council is a Member of Parliament. We also have recent and multiple examples, including one that lasted a significant period, where a Member of Parliament was also an elected Mayor. Are they fettered from talking about foreign policy in debates in this place? Can they take off those hats? I do not believe that they credibly can.

Finally, and this is the point made by my hon. Friend the Member for Birmingham, Selly Oak, we heard on Second Reading, and we have heard in Committee, that the purpose of the clause is to stop decision makers adding to or creating a situation where a community, particularly a minority one, is made unsafe. This is important, and the evidence from the Jewish Leadership Council and the Board of Deputies of British Jews brought that home. What the Minister has said in Committee, however, is that a decision maker could essentially say whatever they want, up to the point of advocating a boycott, and avoid that harm. As my hon. Friend says, it implies that a person can stand up and say anything they wish, in the most inflammatory terms, but that would not make people feel or be less safe. All that would do that would be the final phrase, “And I think we should boycott them.” I would say that the 200 words of inflammatory speech—of conspiracy theories and racist or hateful language—is where the harm is.

The clause does not add anything to the Bill, which leads us to our problem. We are being asked by the Government simultaneously to accept that the provision is broad enough to be impactful and to protect from harm, but narrow enough, as the Minister says, to apply in only a very small number of cases at a very small moment in time. I would say that those two things cannot be true together. The clause does not have to exist for the Bill to operate, which is why I believe we can safely vote against it without harming the overall goal.

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We have all probably been lobbied by universities, and some have told me that this would somehow infringe on freedom of speech and freedom of research. Not a bit of it. It is only when they are making decisions about buying goods or services from Israel, or other Government policies, that that would come into operation.

[Steve McCabe]

The hon. Gentleman and I share a lot of common ground on various foreign affairs issues. I have been reflecting on what he is saying. He and I both take the view that the Islamic Revolutionary Guard Corps should be banned, and we would like to see the Government act urgently on that. In the absence of a ban, if we were to go one step further and think of other ways in which we might be able to impact on the IRGC, would it be outrageous to say, “If it were legal to do so, I would do this and this”? Why would that be a breach?

[Bob Blackman]

I could call the hon. Gentleman my hon. Friend because we co-operate on many issues. As representatives we can speak out and ask for a change in the law, but it is not right for us to lobby organisations, individuals and public bodies to break the law. That is what is covered in the clauses. With respect, I think the wording could be cleverer or better. I am one of those individuals who passionately believes in free speech. I passionately believe that people in a democracy and elsewhere should be allowed to say what they believe. I share the sentiments expressed on Second Reading by the right hon. Member for Barking (Dame Margaret Hodge), who has fought the British National party. Whenever we see extreme views with which we all disagree, we need to expose them in public and defeat them in an argument, rather than push them underground. My clear concern is that people could undermine community cohesion inadvertently. They probably would not mean to do so. There is no issue with making statements and having debates in councils, Parliament and the Scottish Parliament. The issue is one of breaching the law in terms of procurement, including of goods and services.

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[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.

[Steve McCabe]

Will the Minister give way?

[Felicity Buchan]

I am going to go into the detail on some points, and then I will take questions.

This clause does not impact an individual’s freedom to express a view. It is clear that declarations of boycotts and divestments are divisive and undermine community cohesion. These types of policies have no place in public bodies. We have seen examples of public bodies making declarations to boycott and divest as far as the law allows. Recent cases of declarations of anti-Israel boycotts that are not intended to be implemented, such as in Leicester, Swansea and Gwynedd councils, have been strongly opposed by Jewish groups. Such declarations are harmful even where the law does not allow boycotts and divestments. Therefore, such declarations cannot be made under the clause.

We heard repeatedly in evidence that a declaration stating, “We would boycott were it legal to do so,” is enough to trigger community friction and antisemitism issues. For instance, in 2014, Leicester City Council passed a motion targeting the activity of the Israeli state with a boycott

“insofar as legal considerations allow”.

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[Felicity Buchan]

This very much has the advantage of preventing Leicester City Council from making such a declaration. So anyone representing the views of Leicester City Council and saying, “I am standing here giving the views of Leicester City Council” is not allowed to do that.

Let me move on to exact circumstances. Under the clause, individuals, including councillors, are not prevented from making statements of their personal opinions freely in their own capacity. Councillors are not a public authority and, therefore, they will not be prevented from expressing their support for or voting in favour of a BDS motion. For example, representations made by councillors during a debate that indicate that they would be in favour of their local authority engaging in boycotts or a divestment campaign will not be captured by the clause. It will apply only to statements made on behalf of a local authority. Therefore, if a local authority published the minutes of a debate or a meeting in which a councillor said that they would be in favour of their local authority engaging in such campaigns, this would not be captured.

As I have promised, I will make that distinction clear in the Bill’s explanatory notes. We want this to be very clear. There is a real concern that recent declarations of anti-Israel boycotts, even when they are not implemented in practice, have driven and contributed to rising antisemitism.

[Steve McCabe]

I want to return to the example that the Minister cited relating to a personal or public persona. She said that if Felicity Buchan said something in a personal capacity, that would be fine, but if she said it as a professor or representative of an organisation, that would not. If Felicity Buchan were an extremely well-known, recognisable public figure, which she may well be one day, is it considerable that her personal persona would be divisible from her public persona in any credible way that courts or the wider public would recognise?

[Felicity Buchan]

The Bill is not distinguishing between personas, individual or public. It is a sentiment that I am giving as an individual, as opposed to doing so as leader of my council or head of my university, representing my university. It is about the distinction between the individual and the public body.

I am coming to the end of my remarks. We will put that distinction into very clear guidance in the explanatory notes.