Volume 836: debated on Tuesday 20 February 2024
Second Reading
Relevant document: 4th Report from the Constitution Committee. Scottish, Welsh and Northern Ireland Legislative Consent sought; King’s consent sought.
Moved by Baroness Neville-Rolfe
My Lords, at a time of increasing global division, the effective communication of the United Kingdom’s foreign policy is vital. In order to achieve our objectives, the nation must speak clearly with one voice. It is for His Majesty’s Government alone to decide the UK’s foreign policy.
I acknowledge that the Bill is being debated at a troubling time. Although some noble Lords may disagree with the Government on certain aspects of this legislation, I hope that everyone in this House will be sensitive to the broader issues with which the Bill deals. It will give effect to an important manifesto commitment. It is vital that public bodies are not allowed to pursue policies, through their investment and procurement decisions, in order to try to legitimise a UK foreign policy that differs from that of HMG.
Some public bodies have tried to declare boycotts and divestment policies that are inconsistent with the foreign policy set by the Government. Local councils have passed motions in support of boycotts. Local government pension schemes are frequently under pressure to divest certain securities. Universities, too, have been pressurised by groups that want to impose their own views about foreign policy.
The campaign that has placed the most pressure on our public bodies is the BDS movement. It deliberately asks public bodies to treat Israel differently from any other country, and its founders have been clear in their opposition to the existence of Israel as a Jewish state. Not only is that at odds with the policy of this Government, which is to promote a two-state solution, but we have seen an increase in anti-Semitic events following on from the activities of the BDS movement. These concerns pre-date the 7 October attacks, but since then the Community Security Trust has recorded the highest-ever number of anti-Semitic incidents, alongside increasing pressure for public bodies to engage in BDS activity.
The provisions in this landmark Bill prohibit public bodies from imposing their own boycotts or divestment campaigns against foreign countries or territories. It is clearly wrong that individuals who have roles of authority in a subordinate public body can act in such ways. It is also wrong that those public bodies can act in a way that, at home, jeopardises community cohesion while sowing confusion among our international allies about UK government policy.
It is particularly noticeable that boycotts and divestment campaigns disproportionately target Israel, especially in recent months in the wake of Hamas’s despicable terror attack and the resulting conflict. These boycotts contribute to the depressing rise of anti-Semitism across the UK, as reported last week by the Community Security Trust, which recorded its highest-ever annual total of anti-Jewish hate across the UK.
This Bill was unamended in the other place. That reflects the care taken in the drafting of this legislation to ensure that it adequately prohibits BDS campaigns in public bodies, applies to the correct public bodies within its scope and provides appropriate enforcement powers. Noble Lords may wish to table amendments in Committee that can improve the Bill, and of course I am open to considering those.
I now turn to the Bill in greater detail. It will prohibit public bodies from implementing boycotts or divestment campaigns against foreign countries and territories that are inconsistent with the legal sanctions, embargoes and restrictions set by HMG. The Bill will apply to public bodies UK-wide. It provides for an enforcement regime with the power to issue compliance notices and to investigate and fine public bodies in breach of the ban.
The main provisions are as follows. The Bill will ban public bodies from considering the country or territory of origin of a product or service, in a way that indicates moral or political disapproval of foreign state conduct, when making a procurement or investment decision. It does not prevent public bodies taking such considerations into account where this is required by formal UK government legal sanctions, embargoes and restrictions. To capture the rare and legitimate occasions when territorial considerations are relevant to a procurement or investment decision, the Bill provides for a number of exceptions to its provisions. For example, the Bill will not prevent public bodies taking into account territorial considerations for reasons such as national security, labour-related misconduct, and legitimate business and financial considerations. It has been drafted to ensure that it does not have a chilling effect on investments or prevent fund managers being able to assess the political risk of investments.
The Bill will work in harmony with the Procurement Act and will support it in better tailoring the procurement framework to our country’s needs. This Bill will in no way hinder our ability, under that Act, to exclude suppliers where necessary, including where there is evidence that a supplier is involved in modern slavery practices. Public bodies covered by the Procurement Act can therefore be confident that they will be free to decide which suppliers are eligible to bid and which is the best bid to meet their requirements, taking into account all relevant factors. However, they must not base such decisions on territorial considerations in a way that indicates political or moral disapproval of foreign state conduct.
The Bill has been drafted so as not to interfere with any individuals’ or bodies’ rights under existing human rights legislation, including the European Convention on Human Rights. The Government are committed to protecting freedom of speech and are not restricting any person’s or private organisation’s right to free speech. This applies to all in their individual capacities as elected officials, and this distinction has been made clear in the Bill’s Explanatory Notes. The Bill will wing location of apply only to decisions by a public body related to its investment and procurement functions. It will not interfere with any person’s or private organisation’s rights to express a view or to protest. Accordingly, I have signed a statement of compatibility with the European Convention on Human Rights.
On the type of public bodies that are covered by the Bill, they include the devolved authorities, local authorities, local government pension schemes, universities, government departments and agencies, publicly funded schools, and cultural institutions, such as museums and theatres, which receive significant public funding. The Bill will apply to public bodies across the country. It will cover bodies in Scotland, Wales and Northern Ireland, including devolved bodies with wholly or mainly devolved functions, as well as those with wholly reserved functions. As foreign affairs is a reserved matter, we will not seek legislative consent from the devolved assemblies to apply the Bill’s provisions to devolved bodies.
Moving on to the countries and territories covered by the Bill’s provisions, I mentioned earlier that Israel is a frequent and disproportionate target of boycotts and divestment campaigns. To ensure that the Bill is effective at banning divisive behaviour, it will apply to all countries and territories, including Israel and the Occupied Palestinian Territories and occupied Golan Heights.
Another provision I wish to highlight is one that recognises the need for flexibility when there are fast-moving changes in the global landscape. The Bill includes a power to exclude a certain country or territory from the Bill’s provisions via secondary legislation. In fact, we intend to use this power to maximise our impact on Putin’s capacity to fund his war by exempting Russia and Belarus from the Bill to allow public bodies to continue to stop procurement from Russia and Belarus. This means that public bodies will be able to consider how, in line with UK foreign policy, they can further cut ties with companies backed by or linked to the Russian and Belarusian state regimes while minimising the impact on taxpayers and the delivery of public services.
At the same time, we have seen examples of public bodies making declarations to boycott and divest as far as the law allows. These are harmful even where the law does not allow boycotts and divestments and therefore such declarations ought not to be made. There is concern that recent declarations of anti-Israel boycotts, even when not implemented in practice, have driven and contributed to rising anti-Semitism. For example, in 2019, Leicester city councillors voted to boycott produce originating from the Israeli settlements in the Occupied Palestinian Territories. Similar resolutions were passed by Swansea city council in 2010 and Gwynedd Council in 2014. That is why the Bill will ban public bodies from publishing statements indicating that they intend to engage in activity prohibited by the Bill, even where there is no intention to implement.
I stress that the Bill will apply only to public bodies carrying out public activity. Therefore, it will not prohibit individuals such as elected officials from speaking in favour of a boycott or divestment policy. I understand that some are concerned about how elected officials gle showing location of could differentiate between individuals’ statements that are caught or not caught by the prohibition. I should explain that councillors could place their authority in breach of the ban only if they were making a statement of intent to boycott on behalf of their authority. The Bill will not restrict representatives, including council leaders, from expressing their support for a boycott in a debate or on their personal social media. The Government are entirely committed to protecting free speech, and it is not our policy to restrict what individuals can say. Accordingly, I have signed a statement of compatibility of the Bill with the European Convention on Human Rights.
To ensure that the Bill is effective, we have provided for an enforcement regime that will apply to all public bodies captured by the Bill, UK-wide. The regime gives Ministers and designated regulators the power to issue compliance notices and to investigate and fine public bodies where there is evidence that they have breached the ban. This will be at minimal cost to taxpayers, and we will work closely with regulators to ensure that it does not place any unnecessary burdens on them. We will make secondary legislation setting out factors to be considered or not to be considered in determining the appropriate fine. Public bodies that do not follow the law will also be open to judicial review.
This legislation honours the promise we made to the electorate. It will ensure consistency in the UK’s foreign policy agenda, support public bodies to remain focused on their core duties, and prevent divisive campaigns that target particular sectors of our society to the detriment of our wider community spirit and cohesion. I look forward to working across the House to deliver this important legislation. I beg to move.
Statements from Balfour Project Patrons
My Lords, this is another pernicious piece of legislation attacking the freedom to protest against injustice and oppression except when the Government approve. It is therefore a Bill of which Vladimir Putin would be proud as it prevents public authorities, such as local councils, local government pension funds or universities, making their own ethical choices about their spending or investment. I am sorry that this Conservative Party is on the wrong side of history, as indeed it was over the fight against the most institutionalised system of racism the world has ever seen, namely apartheid.
It is also abolishing the right of British citizens to make their own choices. Tory Ministers support boycotts against Putin’s Russia over his barbaric attacks on Ukraine but want to ban even those advocating boycotts of Israeli products from settlers in the West Bank who have stolen Palestinian land in flagrant breach of international law. Ministers have said that Russia and Belarus would be exempt, but what about public bodies wishing to take boycott action over China’s oppressive treatment of Uighur Muslims or the Myanmar junta’s genocidal banishment of Rohingya Muslims?
The Bill violates UN Security Council Resolution 2334, which the UK voted for and which declares Israeli settlements in the Palestinian territory occupied since 1967, including east Jerusalem, as legally invalid and a clear violation of international law. The Bill explicitly designates Israel for special protection and seems to encompass the illegally occupied territories within its definition of Israel. Surely local authorities should have the discretion to make ethical decisions in line with the preferences of their constituents and the freedom to align with international law and exercise due diligence in procurement.
The Conservatives, I am afraid, have previous form on authoritarian repression of such ethical boycotts. In 1988 Prime Minister Margaret Thatcher, having denounced him as a terrorist, imposed restrictions on political action by local councils in support of Nelson Mandela, by then into his 25th year in prison.
This Bill echoes a part of her Local Government Act 1988 preventing local authorities boycotting goods from apartheid South Africa as she attempted to shore up its economy. Local authorities such as Glasgow, Sheffield, Camden, Islwyn and a host of others decided not to buy apartheid goods. In 1981 Sheffield became the first to pledge to end all links to apartheid South Africa by withdrawing pension fund investments from companies with South African subsidiaries and barring its whites-only sports teams from playing on Sheffield’s sports fields. Others followed, including Cambridge, Newcastle, Glasgow and most inner London boroughs.
By 1985 more than 120 local councils had taken some form of action, from banning South African produce in their schools to granting the freedom of their city to Nelson Mandela, Glasgow City Council being the first. In London, Camden Council renamed the street where the Anti-Apartheid Movement had its office Mandela Street. Other cities, such as Leeds with its Mandela Gardens, bestowed honours on Nelson Mandela. The 1988 legislation did not work. By the time the Act came into effect, the apartheid regime was collapsing and the release of Nelson Mandela was looming.
The right to boycott is a principle that has had a massive impact for good. International pressure to cut links with the apartheid regime included disinvesting, not buying goods produced by it and not providing sporting or cultural cover for a regime that the United Nations had deemed a crime against humanity. Democratically elected local authorities should be able to use their resources in ways that do not sustain oppressive regimes where human rights are violated.
For 35 years a consumer boycott was at the heart of anti-apartheid campaigns in Britain. Hundreds of thousands of British people who never attended a meeting or demonstration showed their opposition to apartheid by refusing to buy goods from South Africa. I took part in action to plaster “Danger: Product of Apartheid” stickers on South African products in supermarkets.
The objective of local councils, joined by student unions, was to create apartheid-free zones. From the early 1970s, almost every university and college in Britain joined in. At more than half, students called on the university authorities to sell their shareholdings in British companies with South African interests and pressed for total disinvestment. Many student unions also banned South African goods from their bars and canteens, and their protests drove Barclays Bank off campuses, forcing it to close down its South African operations.
In 1964, the University of London Union made Nelson Mandela its honorary president. In the 1980s, many student unions named buildings in honour of Mandela and initiated moves to grant him an honorary degree. The British Anti-Apartheid Movement’s boycott campaign was hugely successful, lifted only in September gle showing location of 1993 after South Africa was irrevocably set on the path to democratic elections. Yet, and this is my key point, as Richard Hermer KC of Matrix Chambers stated clearly in paragraph 13 of his legal opinion on the Bill:
“Had legislation of this nature been in effect in the 1980s it would have rendered it unlawful to refuse to source goods from apartheid South Africa”.
Shame on this Government for introducing this shameless Bill. I trust that your Lordships’ House will dismember it through amendments and stand up for human rights worldwide.
My Lords, I expect that the name of Field-Marshal Julius Jakob Freiherr von Haynau does not elicit the sort of interest that once it did in your Lordships’ House. He was, none the less, a staple of O-level history when that subject would have elicited the admiration of the Secretary of State for Levelling Up. Field Marshall von Haynau was an effective but severe Habsburg military commander during the revolutionary years of 1848 and 1849. His imperial standing, however, did not prevent him being chased down Borough High Street in my diocese in 1850—where my diocesan headquarters now is, very near the cathedral—by two draymen from the nearby brewery of Barclay Perkins to remonstrate with him about his military conduct in Italy and Hungary.
I mention this once-famous incident to illustrate that there have always been strong currents of feelings about issues, including those abroad. Some of these fall into what one might call the dissenting tradition. As a Church of England Bishop, I recognise that I am an heir to a different tradition, but surely our history has taught us that consensus has been built up around what is obviously true and lived out with integrity, rather than by suppression.
There is a royal prerogative in foreign affairs, as there is around peace and war. His Majesty’s Government treat with states and, where necessary, apply sanctions, but not all and every entity is derivative of the Executive. Surely if Edmund Burke has taught governing parties anything, he has taught them that few, if any, of these things should be taken into account in ways which are harmful to the nation.
As the Government’s own impact assessment on the Bill demonstrates, we address business other than that which is directly before us. It is for bodies which have a mandate separate from His Majesty’s Government to determine how, within the law, we obtain the best outcome with the assets we have, and to do so while being accountable to the people we serve. For example, Section 17 of the Local Government Act 1988 already prohibits local authorities from making procurement decisions on non-commercial grounds.
I recall from when I served on the staff of St Paul’s Cathedral, and later as a parish priest in Tower Hamlets, the declarations of the nearby borough that it was a nuclear-free Hackney. I am not sure what that achieved but it was a matter for them. More significant is that some of the action in respect of apartheid South Africa would not, as we have heard, have been possible had such a Bill been in force then. There was, let us remember, sharp controversy about disinvestment in South Africa, but it was at the level of argument, not statutory prohibition.
The right reverend Prelate the Bishop of Manchester, who hopes to be present for later stages of the Bill, has raised with me a concern which I think has merit: that public funding means that a number of religious foundations in education will be caught by the prohibition on saying anything about these matters. Perhaps the Minister would be prepared to confirm that this is not the intention of the Bill and, if so, what can be done to mitigate the possibility.
From these Benches, we have not called for a boycott or disinvestment, or sanctions against Israel, but we find a number of things alarming in the implications for our liberties and freedoms. One is blanket prohibitions about statements, even on matters such as Uighurs in China. One may argue that the Secretary of State may permit such things, but why should this require the permission of the Secretary of State? The other is that there can be no justification for singling out a particular country in the Bill, as many noble Lords have already said, to put it beyond exception in the regulation-making power in the operation of any resulting statute. It is also deeply worrying that territory illegally occupied by the same state is treated identically in the Bill, as if it is the sovereign territory of that state. This is not in accordance with the repeated statements from the Foreign, Commonwealth and Development Office on the need for lasting peace on the basis of a just, negotiated settlement.
I endorse what the Minister said about the need to eradicate anti-Semitism, but have the Government heard the concerns of bona fide Jewish bodies? For instance, a motion passed unanimously at the recent conference of the Union of Jewish Students, which represents 9,000 Jewish students, stated that
“the UK government’s recently proposed BDS Sanctions Bill weakens the ability of British Jewish students to approach the conversation about Israel in a nuanced manner”.
The motion went on:
“UJS reaffirms its support for the democratic right to non-violently protest and opposes the government’s proposed Boycott Bill which is a curtailment of that right, as well as presenting a risk to British Jewish communities and a setback to Israeli-Palestinian peace”.
It seems clear that, rather than there being a concern that local authorities operate a separate foreign policy from that of His Majesty’s Government, we should query why the Department for Levelling Up, Housing and Communities is pursuing policy objectives for the Occupied Palestinian Territories that are at variance from those of the Government as a whole.