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

Wayne David Excerpts

Committee stage
Tuesday 5th September 2023 Public Bill Committees

[Felicity Buchan]

There will be the ability to exclude on modern slavery and labour misconduct grounds under the Procurement Bill and in this Bill, but perhaps, in the interest of time, I should allow colleagues to come in.

[Wayne David (Caerphilly) (Lab)]

Q We have a great deal of sympathy with what you have expressed to us this afternoon. One problem that many people have with the Bill is that although it was billed as a Bill to prevent BDS against Israel, it is not country-specific. It applies to all countries, including Myanmar and China, and will have a direct impact on the solidarity that is capable of being shown to the Uyghur minority. It is ironic, really, that although one of the impressive things we have seen over the last couple of years is the solidarity from the Jewish community in Britain with the Uyghur minority, we have this Bill that some would suggest actually prevents local authorities from expressing that collective, community, material solidarity with people who are oppressed in China. Do you think that is a fair characterisation of your concerns?

Rahima Mahmut: First, thank you for that question. I thank the Jewish community from the bottom of my heart for the support we have received—Stop Uyghur Genocide received its first fund from the Pears Foundation. As people who have experienced this absolute horror in the past, the Jewish community can relate and understand the pain.

When it comes to the legislation, I am not a lawyer. I only look at whether a piece of legislation will benefit my community. So far, from my own understanding of this Bill, I do not see that it will have any kind of positive outcome. As I have explained, this is because of the power that China has due to the economic dependency that this country and many others have on it, which is why we could not really mobilise Governments to recognise it and take any meaningful action. Therefore, I strongly oppose this Bill. This is not just me; I represent the Uyghur community, which also opposes this Bill. We do not want this Bill to one day prevent our campaign from being successful.

[Wayne David]

That was very clear, thank you.

[The Chair]

I am afraid that this will probably have to be the last question to the witness. I call Chris Stephens.

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[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.

[Wayne David]

Q Partly because our two professors are from Wales and Scotland, I want to ask about devolution. Most of would agree, I think, that foreign policy is exclusively a reserved matter, but we are not just talking about foreign policy now; we are talking about procurement responsibilities and public service pension schemes, the responsibility for which is, to a large extent, in different ways, devolved to the devolved Governments. I am mindful of a statement in the House of Commons Library brief that the Bill as it stands will modify

“the executive competence of devolved ministers”,

and because of that the devolved institutions will need to pass a legislative consent motion. That might be politically contentious; therefore, the Act might not automatically apply to the three parts of the United Kingdom we are talking about. Also, in Northern Ireland, public services pension schemes are exclusively in the hands of the Northern Ireland Assembly, which is not currently meeting. How will it agree a legislative competence order? Presumably, unless the Secretary of State takes powers that are not prescribed in the Bill, this legislation will not apply to Northern Ireland. Would you care to comment on that?

Professor Tomkins: With your permission, I will jump in on that. First, I have to say that the question of legislative consent has got a long way out of control. By that I mean this: absolutely, the United Kingdom Parliament should seek and obtain the legislative consent of the devolved Administrations and devolved Parliaments if the United Kingdom is seeking to legislate on matters which it has chosen to devolve to democratically elected legislatures away from Westminster, but that is not what is happening here—

[Wayne David]

Q The House of Commons Library disagrees with you.

Professor Tomkins: No it doesn’t.

[Wayne David]

I just read it out.

Professor Tomkins: No, what you said is that this legislation trespasses on executive competence of Ministers, not on legislative competence of the Scottish Parliament. There is not a single aspect of devolved competence on which this legislation touches or trespasses. I do not think there is any question of legislative consent—but it is an unfashionable view these days that this has got out of control in that the United Kingdom Parliament now thinks it needs to seek legislative consent on a whole range of issues that are not actually devolved to Scotland, Wales or Northern Ireland. In my view, on a proper understanding of the scope of the Sewel convention—that is to say, as Lord Sewel would have understood it when he introduced the convention in the House of Lords back in 1999—there is no question of legislative consent on this legislation.

[The Chair]

We do not have time for another question in the time allotted for this panel. Let me say on behalf of the Committee that we are grateful to our witnesses for their evidence.

Examination of Witness

Andrew Whitley gave evidence.

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[Felicity Buchan]

Q The Government’s view is that the settlements are illegal; however, we do not support boycotts and divestments against Israel because we do not think that they contribute towards peace in the middle east. Do you disagree?

Andrew Whitley: I would not advocate for boycotts against Israel.

[Wayne David]

Q Andrew, you will have heard the last question in the last session, which touched on foreign policy. I made a statement that foreign policy is a non-devolved matter, but human rights is an issue that belongs to central Government, local government and devolved Government—it belongs to all citizens in a sense. Is that your view as well, and if it is, would you care to elaborate to say why you have fundamental concerns about this piece of legislation?

Andrew Whitley: Human rights are universal, and they need to be applied even-handedly and in a systematic fashion; there can be no quarrel or disagreement over that. Any attempt to try to make distinctions over how human rights should apply in one territory or another undermines the authority of those who are attempting to enforce them, and it makes a mockery of the application of human rights if they are applied selectively. I believe it is the responsibility of all citizens, as well as public bodies, to be able to apply ethical, moral human rights considerations in their decisions, and those can apply to political matters and they can apply to other matters. Human rights also cover the provision of shelter, the provision of water supplies or adequate education; these are all basic fundamental human rights. I think it is the responsibility of all bodies in this country to take human rights considerations into account and to apply them in a consistent manner.

[Ms Qaisar]

Q Thank you so much for joining us today, Andrew. You have spoken about the historical influence of Britain, so I am interested to learn a little bit about what impact you think the Bill will have on the UK’s relationship with the occupied territories, and with Palestinians across all four nations here who wish to exercise their freedom of expression so that the Israeli Government can be held to account for their actions?

Andrew Whitley: I think the impact of the Bill will be to hearten the most extreme nationalistic, racist Government that have ever been in place in Israel. I think that it will cheer Bibi Netanyahu and his Ministers and will provoke divisions within Israel. I should put it on the record here that a large number of sensible, middle-of-the-road Israelis are deeply troubled by the situation in the occupied territories and by their own Government’s actions, including the expansion of the settlements. We should be supporting those people, not the extremist Government, who are inflaming hatred in the country. As far as the Palestinians are concerned, I regret to say this, but I am afraid they will see the passage of this Bill as yet another act of betrayal on the part of Britain.

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[The Chair]

I am mindful of the fact that we have to conclude this part of the session at 4 pm.

[Wayne David]

Q My question follows on from what you have just said, Andrew. The Government say they are committed to a two-state solution. We as the Opposition, and I think the British Parliament, are strongly in favour of that. However, there is great deal of concern about the conflation of Israel and the occupied territories and the Golan Heights. I believe I am correct in saying that this is the first time that has ever happened in a piece of British legislation. It does, perhaps not legally, but it certainly sends out the message that somehow the Government’s commitment to a two-state solution is not as firm as they say it is. Do you think that is the case?

Andrew Whitley: The lip service to a two-state solution continues, but I think there is a great deal of make-believe—or perhaps deliberate pretence—on the part of those who say that a two-state solution is still viable. It is looking increasingly impractical. If I can quote the words from the UN resolution—I was a senior UN official in the region for many years—the UN calls for “a sovereign, contiguous” Palestinian state. That is not the case at the moment and it is highly unlikely to be the case. The difficulty is in facing up to the alternatives, which are considered unpalatable. Members of the Elders delegation, Ban Ki-moon and Mary Robinson, who visited two months ago said that, to date, we are living in “a one-state reality”—not a one-state solution, but a one-state reality. That is what needs to be addressed.

It may be that the Government are privately edging away from their commitment while maintaining the rhetoric of support for a two-state solution. There are certainly hard choices to be made. However, from my personal perspective as someone who has followed the spread of these settlements for 40 years and seen the number of settlers grow from 50,000 to 700,000 in that period, it is increasingly difficult to see that it will actually transpire in that way.

[The Chair]

Order. I am afraid that that brings us to the end of the time allotted for the Committee to ask questions. May I thank our witness on behalf of the Committee? We will now move on to the next and final panel.

Examination of Witnesses

Mark Beacon and Rozanne Foyer gave evidence.

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[Ms Qaisar]

Q Thank you. Roz, do you have anything to add to that?

Rozanne Foyer: Trade unions have been using these policies, as I said, for quite some time in a range of situations. I think that we would want to be able to continue to operate in that way. It is an important part of our democracy that our members and citizens are able to influence public bodies and elected officials at all sorts of levels. It is very important. One of the things for which trade union members in Scotland campaigned for a long time was a Scottish Parliament, and another big concern for us is the way that devolution to that Parliament is being potentially undermined by this piece of legislation. That is another area where we have some key concerns about this Bill.

[Wayne David]

I apologise if the speakers have already touched on this; I did not pick up everything that was said from Scotland. Mark, you have written a very detailed paper, and I thank you for it. One of the very important points you make in that paper is the fact that public bodies in Wales and Scotland are already obliged to follow ethical practices with regard to employment, for example, and need to take into account human rights considerations. My concern is that the Government have perhaps not fully appreciated that fact. This legislation, which will apply—so they tell us—to all parts of the United Kingdom, does not take into account what already exists, and it might inadvertently cut across or undermine existing regulations. Is that your view? If it is, can you say a bit more?

Mark Beacon: Yes, we share those concerns. Some positive work is taking place in Wales around procurement, primarily focusing on labour rights but branching out into other areas. Again, there is some positive work in Scotland and, I believe, in Northern Ireland. We are deeply concerned about the impact that the Bill will have on that work in devolved nations, particularly considering that both investment and procurement are devolved responsibilities. When we look at areas such as labour rights, which are obviously fundamental to us, and at exceptions in the schedule, they are very narrowly defined. They are primarily focused on areas around modern slavery and so forth, and there are references to the minimum wage as well, but they do not go anywhere near meeting the International Labour Organisation core conventions. Areas such as child labour, equal remuneration, the right to collective bargaining, freedom of association and so forth are not referred to at all in there, so it will undermine that work.

Rozanne Foyer: We have a range of devolved policies in Scotland that relate to our Fair Work First approach to commissioning and contracting. We do not have devolved employment law, but we have an extensive range of guidance and benchmarks that we expect all contractors who want to get public money to adhere to. The Scottish Government also has a vision for trade that sets out fair work indicators as well. Although we cannot implement laws, because employment law is not devolved, we fully use our right to implement and use the money as leverage. I believe that is a very legitimate way to create a landscape of better employment rights and good practice, both domestically and internationally, and that work would be severely undermined by the current proposals.

In terms of the other area I think could be really undermined, we must remember that in Scotland we have a Parliament where just over half of the representatives—the majority of representatives—support full independence. It would be legitimate and in the public interest for citizens and members of the public to know and 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. It is very disturbing to me that clause 4 of the Bill might well prevent that sort of debate or announcement from taking place. At the moment, the Scottish Government are producing a series of papers that look at the detail of what an independent Scotland might look like. The STUC does not have a policy on independence, but you can bet your bottom dollar that we are looking very closely at what the potential proposals might be and thinking about how they might impact our members. I would not like the Bill to preclude the Scottish Government from making us aware of what their intentions might be.

[Chris Stephens]

Q I refer to the declaration that I made this morning: I am a member of Unison, as Mark knows, and I think I am not the only one. You touched on this in answer to my colleague Wayne David’s question, but do you believe that the exceptions that this Bill allows to consider elements of human rights, labour rights and environmental misconduct would grant public bodies and their representatives enough leeway to effectively make ethical decisions?

Mark Beacon: Absolutely not. It is phenomenally weak in terms of the exceptions. If we start with international law, there is a requirement in it that basically violates the UK’s obligations under international law rather than considering, for example, that the activity of a company might be contributing to a violation of international law, so that section is extremely weak. There is a total absence of any reference to human rights within the exceptions there, which is of deep concern, particularly as you do not have labour rights without human rights. Then, for the reasons I have mentioned, the section on labour rights is extremely weak—not meeting those ILO core conventions, which are the absolute basic minimum enabling rights for workers.

The Committee might want to look at areas around procurement and the activities of organisations like Electronics Watch, which I believe Crown Commercial Services is affiliated to, that look at areas like electronics and mining and how you can get better practice in procurement in those areas. On environmental concerns, again, we are concerned that there is that double threshold there: not only must it be environmental misconduct, but it has to violate the law as well. There are plenty of exceptions to that, such as in issues around the pollution of watercourses or around logging or deforestation, where the conduct or policy of a public authority permits that to go on.

Rozanne Foyer: I will not say too much on this. I think that the points were very well made there. The ILO conventions missing is the most disturbing feature here for any sort of credible nod to good employment standards. The fact that they are not there is incredibly disturbing. It is not going to help us take forward environmental agendas. It is not going to help us take forward ethical or human rights agendas or labour rights agendas on an international basis. It is a travesty if we cannot use all of our public bodies to help us push that agenda forward.