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

Wayne David Excerpts

Committee stage
Thursday 7th September 2023 Public Bill Committees

[Wayne David (Caerphilly) (Lab)]

On a point of order, Sir George.

[The Chair]

I hope it is a point of order.

[Wayne David]

I hope so, too. I just want to ask your advice. Is it appropriate for a witness to this Committee to give evidence in the form of attacking another witness who does not have the opportunity to respond to those comments because he is not here? Surely a witness should be giving positive remarks about why something should be done, rather than criticising another witness.

[The Chair]

It is an interesting point, but it is not a point of order for the Chair. It is in the hands of the witnesses themselves to give their evidence in the way that they think most appropriate, and if that involves commenting on evidence that we have already heard, it is certainly acceptable for them to do so. You might not like it—

[Wayne David]

No, and I don’t think many people will.

[The Chair]

But it is the system. I am going to move swiftly on now. A number of Members have indicated that they want to take part. I call Alex Norris.

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[Chris Stephens]

Q In the advice you gave the Labour party, you said the Bill

“effectively equates the OPT with Israel itself and is very difficult to reconcile”

with Britain’s support for a two-state solution. Will you expand on those comments?

Richard Hermer: Yes, of course. The manner in which the Bill does that is it affords a unique protection to just one category, which is Israel, the occupied territories and the Golan Heights—one protection from being placed on the list of exceptions—whereas any other country in the world can be placed on the list of exceptions and therefore subject to adverse economic decisions by public bodies through the fiat of the Secretary of State or the Cabinet Minister. That power is denied to the Secretary of State or Minister in respect of anything to do with Israel, the occupied territories or the Golan Heights. It is accorded a special status, and that can only be changed by primary legislation. In that sense, it separates out Israel and the OPT from the rest of the world.

[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.

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[The Chair]

Thank you. We have a few minutes left if anybody has a further question.

[Wayne David]

Q Apart from the objections you have clearly set out in writing and orally, you make a number of comments about the poor drafting of the Bill. Could you give us a few examples of poor drafting that will lead to all sorts of unintended consequences and complications?

Richard Hermer: I think I set out quite a few in writing. First, clause 1 could be taken to mean something entirely different to that which I think the Government intended—to just focus on particular territorial disputes rather than, more generally, the human rights record of a company.

I am afraid that, again, I disagree with Mr Barrett about the dangers of the “reasonable observer”. In some areas of the law that is a common phrase. But here, if the Bill proceeds, it is a pretty binary question: have you offended the Act and taken into account considerations that you should not, or haven’t you? I do not understand what the test of reasonable observer adds beyond uncertainty and, potentially, injustice. On that analysis, you can have no intention to break the law, but a reasonable observer may nevertheless consider that you did. The vagueness there is potentially very troubling. There are also the other examples I have put out in writing.

Obviously, a great deal of oxygen has been taken up on BDS, and one can understand why that is. But I would stress—as I hope I have done in writing on two occasions—that the impact of the Bill extends across the whole panorama of human rights and this country’s engagement with human rights, not just one particular incident. It engages not simply what local authorities can do, but the full range of public bodies in this country.

[The Chair]

Thank you for the brevity of your responses, which enabled us to get a lot more questions in than I had anticipated in such a short session. It has been very helpful. Thank you very much.

Examination of witness

Melanie Phillips gave evidence.

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

Q I understood the Bill to be largely about the Conservative party meeting its manifesto promise to address BDS—in fact, the Prime Minister restated that recently. If that is the main purpose of the Bill—and I have to say I am in favour of that—do you think we need the exemption that means that Israel and the Palestinian territories are the only places that the Secretary of State cannot regulate for? Does it add anything extra to the Bill?

Melanie Phillips: I think there is no contradiction between the two. As you say, the Bill is the fulfilment of a manifesto commitment. The manifesto commitment is a broad one, and the Bill is a broad one, as you heard from your previous witnesses. There are exemptions of different kinds, and the particular exemption you are talking about, which singles out Israel, is done for a particular reason: in a Bill that deals generally with boycotts, there is one boycott that stands out as unique, which is the boycott movement against Israel. It has characteristics that do not apply to any other action taken against any other country, group or cause. In the view of the Government, and I agree with this view, it is a uniquely evil impulse, designed uniquely to destroy Israel as the Jewish state—as the Jewish homeland—and with malign potential repercussions on the Jewish community. Consequently, because it is a unique situation, it requires a specific exemption, as it is so bad that it cannot be ever thought that it could ever happen.

[Wayne David]

Q Could I say that I have regularly, over many, many years, read your excellent articles in The Times and indeed elsewhere. I understand that you feel very strongly about this issue, and I personally have gone on record many times as being implacably opposed to the BDS movement. However, one worry I have is that much of the mechanism in the Bill requires exemptions, and the Government have indicated that there will be some exemptions, but they have not mentioned China, and I do not think they will mention China. Yet there is tremendous concern among the Uyghurs, for example, as we have heard in this Committee, about the possible curtailment of action at a community level against China. Is that a concern you share?

Melanie Phillips: I am certainly concerned about China. And, by the way, thank you very much for the compliment—flattery will get you everywhere. I am concerned about China, and I would like and prefer our Government to take a stronger view about China—a stronger approach to China. But that is not really the point at issue here; the point at issue here is that it is for the Government to determine foreign policy—I may disagree with that policy, but it is for the Government to determine it. If local authorities or public bodies—bodies taking public money—go off on a frolic of their own and boycott China, Saudi Arabia or whoever, you have a kind of anarchy, and you cannot have that. To me, that is the issue.

As I understand it from what Ministers have said and from my reading of the Bill and these exemptions—obviously, you realise I am not a lawyer—the Bill allows public bodies who take a view that the procurement decision they are being asked to take would involve the use of Uyghur slave labour in China to use the exemptions to not go down that procurement road. But the exemptions are limited to a number of areas that the Government have deemed to be on the right side of the line when it comes to saying that it is for the Government of the day to determine foreign policy, which I think is a sensible rule for the Government of the country.

[Nicola Richards]

Q We have heard evidence that some believe the Bill could make division worse, but many others have argued that that would not be the case. Part of what the BDS movement calls for is for people to stop Palestinian organisations working with Israeli organisations. Do you think that is evidence, and is there any more evidence, that the Bill would not make community tensions worse and seeks to make them better?

Melanie Phillips: I do not think the Bill itself seeks to make tensions worse or better, but it is a fair question to ask whether it will have that effect both here and in Israel and the disputed territories. The fact is that people who advocate boycotts of Israel over its behaviour in those territories, which classically involve targeting companies that have a presence in them, believe that this is hurting Israel. Well, it does, but the people it really hurts are the Palestinian Arabs who work for these organisations and companies. They have said over many years that they wish that the west would not go down this road. It is a disaster for them when it goes down this road. They and their families depend for their livelihoods on these companies. Boycotts are performative from their point of view—they are performative virtue signalling, which not only does not address the political challenges and difficulties that they believe they have but actually takes away their livelihoods. So this hurts them, and it does nothing about community divisions in these areas, because a state of—whatever you like to call it—war, insurrection, permanent threat of terrorist violence and so on engulfs this area, and Israelis are being killed, or there are attacks intending to kill them, literally every day. This does not affect that at all. What it would do, in my view, as I have said already, is make the situation of British Jews worse—it would affect it very badly. It would increase community divisions here; it would increase suspicion, aggression and division between the Jewish community and the non-Jewish community here.