Economic Activity of Public Bodies (Overseas Matters) Bill

Baroness Chapman of Darlington Excerpts

Wednesday 17th April 2024 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, I will try to be brief at this late hour. I spent my entire career studying and writing about foreign policy. The noble Lord, Lord Moylan, was kind enough when he made his speech some months ago to say that, when he joined the Foreign Office, he was told, “You’ve got to read William Wallace’s The Foreign Policy Process in Britain”, before he started work—so I know a little about it.

I emphasise there has always been, and remains, a difference between the approach to foreign policy in the security sense and defence sense—in which it is quite clear one has to have command, central control and therefore real concern about sovereignty—and to trade policy, international investment and procurement, which are usually controlled by a different department, often in competition with the Foreign Office, and in which subordinate entities of government, in most states, also have degrees of latitude. The German Länder pursue different international investment policies. I remarked earlier that the British Government are negotiating trade deals with Washington state, Texas and others within the United States. The idea that all foreign policy in the broadest sense, from immigration through to defence, has to be undertaken by central government is an extreme sovereigntist and unionist case, which I think should not hold.

[Baroness Chapman of Darlington (Lab)]

My Lords, I will be very brief. I do not want to repeat some of the excellent points made, but I do have an amendment in this group about requiring a legislative consent Motion. For us, this is primarily an issue of respect. It saddens us: from the internal market Act, relationships between the UK Government and the devolved Governments started to go really badly wrong. It seems to happen again and again. I remember a couple of weeks ago, in this Chamber, the noble Lord, Lord Moylan, referred to the Welsh Government’s desire to work to support the Welsh language as a fascist attitude. That has played on my mind ever since. Things have really deteriorated to such an extent that, in the personal relationships between politicians in the UK Government and the devolved Governments, which politicians used to take pride in putting some effort and work into, nobody seems to even try anymore. Bills such as this one come along where the Government do not seem to care whether it has any legislative consent and do not even try to persuade their colleagues in the devolved Administrations to see the benefits of a particular piece of legislation. That is very sad. I regret that deeply, and the Government really ought to do better.

This is primarily about freedom of expression for people who have been elected in their own right to represent their communities. It is wrong that Clause 4 prohibits statements. We will come on to that later, but they are to be gagged by the Bill, and that is to be regretted. It is a backwards step. We will debate that another day. I hope that noble Lords will understand just how offensive the restrictions in that clause are to elected Governments in Scotland, Wales and Northern Ireland.

As others have said, the Bill is disproportionate and unnecessary. The Minister and I have had exchanges about things raised by the noble Lord, Lord Foulkes, about the Scottish Government having offices in other nations, and he says that this is wrong because foreign policy is the UK Government’s domain, He is right about that—he does not speak for the Labour Party on these issues and is not right in the complete sense on the points that he makes on this. The Government agree and say that this is a terrible problem, that it is confusing for our partners overseas and that something should be done, but they are doing nothing about it. Instead, they feel that this is causing confusion in foreign policy. I just do not believe it. I do not believe that any other Government anywhere in the world is confused about our foreign policy because of some statement that the noble Baroness, Lady Noakes, says has been put in a drawer somewhere in Edinburgh, was passed 10 years ago, and is somehow causing such diplomatic confusion. I do not see any evidence of that whatsoever.

It is sad that the Government no longer even try to pretend that they want to work in partnership with devolved Governments. We can do so much better. The UK Government already have sanctions powers, and they are now seeking unnecessarily to fetter and gag devolved Governments. This shows a terrible lack of respect and I regret it very much.

[The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)]

My Lords, the amendments put forward by the noble Baronesses, Lady Bryan of Partick and Lady Chapman of Darlington, and the noble Lord, Lord Hain, seek to remove Wales, Scotland and Northern Ireland from the territorial application of this Bill. I am sorry that the noble Baroness, Lady Ritchie, and the noble and learned Lord, Lord Thomas, are not here tonight, as they usually are in these discussions.

I disagree with these amendments for two reasons. First, the intention of this Bill is to ensure that the UK speaks with one voice internationally. It will safeguard the integrity and singularity of the UK’s established foreign policy, which is set exclusively for the whole of the United Kingdom by the UK Government. My noble friend Lady Noakes explained that well—political and moral disapproval is the issue here—and she gave a Scottish example. The noble Lord, Lord Wallace, takes a different view.

I see it this way: international relations and foreign policy are reserved matters and remain the responsibility of the UK Government and the UK Parliament. Removing Scotland, Wales and Northern Ireland would be out of line with the devolution settlement and undermine one of the main aims of the Bill—one UK foreign policy decided by the UK Government. I appreciate the view of the noble Lord, Lord Hain, that decisions should be made as close to local level as possible. However, I do not believe that this would be appropriate for international relations, which is rightly reserved for the UK Government. The UK cannot effectively conduct a single foreign policy if each devolved Administration or indeed local authorities, as I think we were talking about, are conducting a separate policy.

The second reason I oppose these amendments is that the BDS campaigns, which risk undermining community cohesion, are a UK-wide problem. I will illustrate this briefly with some examples. In Wales, a 2014 motion passed by Gwynedd Council called for a trade embargo with Israel. In 2020, as the noble Baroness, Lady Noakes, pointed out, the Welsh Government informed the Welsh Parliament that they intended to issue advice to all Welsh public authorities that they may exclude from tendering any company that conducts business with the Occupied Territories, whether directly or via third parties. Only after intervention from UK Lawyers for Israel did the Welsh Government defer this decision.

In Scotland, in January 2009, West Dunbartonshire Council passed a motion agreeing to boycott all Israeli goods. That motion was reaffirmed in June 2010 and May 2011. In December 2010, Stirling Council passed a motion resolving to

“reassess its current procurement arrangements and ensure future agreements and contracts boycott all Israeli goods”.

In March 2013, Clackmannanshire Council passed a motion to

“resist, insofar as legislative considerations permit, any action that gives political or economic support to the State of Israel”.

In Northern Ireland in 2016, Derry and Strabane Council voted in favour of BDS. A motion was passed to investigate the most practical means of implementing the BDS campaign in the council. Finally, in Belfast in 2019, councillors attempted to bring forward a resolution to support BDS.

For these reasons—the need for a single UK foreign policy and the record of boycott campaigns across the UK—it is vital that the Bill’s provisions extend to each of the jurisdictions of the UK. This includes all public authorities, as defined in Section 6 of the Human Rights Act 1998. This includes Ministers in the Devolved Administrations. This may alter their executive competence, so the legislative consent process has been engaged, as the noble Baroness, Lady Chapman, explained. We have therefore sought legislative consent from the devolved legislatures to apply the bans in Clauses 1 and 4 to Ministers in Scotland, Wales and Northern Ireland.

International relations and foreign policy are reserved matters and remain the responsibility of the UK Government and the UK Parliament. The Bill legislates in this area.

The noble Baroness, Lady Bryan of Partick, emphasised that the devolved Administrations are required to act within the European Convention on Human Rights. The Bill will not compel public authorities to make a decision that would put them in breach of the convention, and it will not interfere with the rights of any public authority. One of the reasons why we chose the public authorities definition is that these bodies do not have convention rights, so the Bill is compliant with the convention, including the Article 10 right to freedom of expression.

In response to the noble Baroness, Lady Randerson, I would like to reassure her that the powers in the Bill can be used only to narrow the scope of the ban, as it would be set in primary legislation. They cannot be used to place broader obligations on the devolved Administrations than what was agreed by Parliament.

Economic Activity of Public Bodies (Overseas Matters) Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Wednesday 17th April 2024 Lords Chamber

If my noble friend the Minister is not happy with the amendments I have tabled in this group, I hope that she will consider alternative ways of providing certainty, because certainty is very important; I echo what the noble Lord, Lord Wallace of Saltaire, said on that. Also, I hope that she will look at excluding private sector companies from the ambit of this Bill because I do not believe that they were intended to be covered when the manifesto commitment was made.

[Baroness Chapman of Darlington (Lab)]

My Lords, I am grateful to the noble Lord, Lord Wallace, and the noble Baroness, Lady Noakes, for their amendments in this group. They are incredibly helpful. What we are trying to do here, as the noble Baroness, Lady Noakes, has just said, is elicit some certainty from the Government on behalf of those organisations which might find themselves drawn into the scope of this Bill. Even though they may not consider themselves to be public bodies ordinarily, they might find that they are when it comes to this Bill. We will come later to an argument about whether universities should be treated as public bodies and we feel, as we said at earlier stages, they should clearly not be. But that is not the only area where we feel that the Government have not thought sufficiently about what they are trying to do.

Amendment 11 from the noble Baroness, Lady Noakes, would, as she explained, apply the definition in the Freedom of Information Act. That would settle this to a large extent, in that we are clear about who is and who is not subject to that Act. It would be interesting to hear whether the Government are minded to welcome that suggestion because, from what the Minister has said on previous occasions, all the instances that she has referred to as justifying the need for the Bill would probably be covered. I am not sure why the Government do not just welcome that, to be honest; it does not answer all of our problems, but it would go some way towards that.

The introductory speech of the noble Lord, Lord Wallace, was incredibly helpful and his amendments likewise. He concluded by saying he suspects that the Bill is actually performative in nature and worries that the operability is not at the forefront of anybody’s mind in government. I have no idea how true that is, but I share his concern that it is the job of this House to make sure that we do not pass legislation that is unworkable and just causes confusion.

Our Amendment 14 is probing and I accept what the noble Baroness, Lady Noakes, had to say about it. But we are just trying various ways in this group—and in the next, too—to work out which organisations will be subject to these new rules. The example that has been helpfully provided to me by Universities UK was the one that led to the tabling of our Amendment 14.

If the Government get their way and universities are to be treated as public bodies for the purposes of this Bill, although I very much hope not for any other purpose, their activities that we could argue are clearly outside their publicly funded responsibilities—those conducted, perhaps, with private money or are contracted to private companies—would in no way be subject to the rules within the Bill. There is a reference that makes this clear in the Explanatory Notes, but the amendment that we have suggested would put that explanation into the Bill. As I said, it is to probe exactly what the situation would be because, at the moment, universities are not clear about that and it is important that we give them that certainty.

An example was suggested to me by Universities UK. It is hypothetical but not so outlandish that this situation is not happening very frequently. I declare an interest as chancellor of Teesside University. Here is the hypothetical example: university A is considering a proposal to set up a transnational education partnership in country X. This could involve a partnership with a commercial or state entity in country X and the university board must consider a range of proposals. According to the Higher Education Code of Governance, governing bodies should

“conduct their affairs in an open and transparent manner”.

It is a fundamental duty of university governing bodies to safeguard and promote the reputation of the institution. As the new partnership would involve a significant investment and carry both financial and reputational risks, the board of university A is therefore asked to take a decision on the proposals.

To support its deliberations, the board would receive a paper covering the following: the potential financial exposure and opportunity of each proposal; underlying social, demographic and economic data that underpins a market assessment; due diligence on potential partners, including reputational factors; and a summary of ethical and reputational concerns relating to country X. All aspects of the paper would be deliberated by the board. Following an extensive discussion of the financial and reputational impacts of the proposals, the board decides not to proceed with the partnership opportunity because, on balance, the risks are deemed to outweigh the opportunity.

Can the Minister explain whether, in this example, the transnational educational partnership described constitutes a private or public activity of a university? Would the fact that the board discussion included reference to reputational and ethical concerns of direct relevance to a higher education institution mean that members of the board could be subject to action under the provisions of the Bill?

How can boards fulfil their duty to safeguard and promote the reputation of their institution if they are not able to openly discuss and consider material facts that could impact on said reputation without fear of legal action, even if those considerations are not the sole basis for the eventual decision? How can boards fulfil their duty to conduct affairs in an open and transparent manner if the very fact of discussing issues of demonstrable and material relevance would be actionable under the provisions of the Bill?

I raise this example to tease out some of the grey areas that we might be forcing universities to consider and because I am worried about the chilling effect this may lead to. I do not think there is a situation in which a university would not consider the reputational impact of a partnership. But I can conceive of a situation where that consideration would not be as open and as widely shared as we have come to expect, in the way that we would like things to be done in this country.

In this group, we would like to understand the Minister’s response to the amendment from the noble Baroness, Lady Noakes, in particular, on whether there might be any other way of making clear who is subject to this. In relation to my Amendment 14, I would like to understand exactly how this will work for organisations—not just universities, but others as well—particularly in relation to the example I raised.

[The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)]

My Lords, I am grateful for the thoughtful contributions from across the Committee. On the first day of Committee, which also touched on the scope of this Bill, we heard from the noble Lords, Lord Collins and Lord Wallace, the noble Baroness, Lady Fox, and my noble friends Lady Noakes and Lord Johnson. We discussed the Bill’s application to hybrid public authorities. Today, we have heard in slightly different terms from the noble Lord, Lord Wallace, my noble friend Lady Noakes and, of course, from the noble Baroness, Lady Chapman. I will try and come back on her essay question if I can.

Obviously, we have carefully considered the points raised in these debates. I would like to expand on our view of the scope in relation to Amendments 10, 11, 12, 13 and 14. As noble Lords have said, the Bill will apply to public authorities, as defined in Section 6 of the Human Rights Act 1998. I would like to explain, in response to the concerns of the noble Lord, Lord Wallace of Saltaire, that “public body” is a general term with no single legal definition. The Bill’s Short Title provides a general indication of the subject matter of the Bill, and it is not unusual for the Short Title to use different terminology from the Bill’s substantive provisions.

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I thank the noble Lord, Lord Wallace of Saltaire, for his research on the distinction between a public body and a public authority. I am unsure which definition of public bodies he was referring to. There are many, but I hope I have been able to explain that the alternative preferred definition of public bodies would broaden the Bill and take it into the private sphere—that is the dilemma.

[Baroness Chapman of Darlington (Lab)]

I am grateful to the Minister, but I am completely unclear about what a public body is after listening to that. Could she explain what a public function is? That might help us.

[Baroness Neville-Rolfe (Con)]

That is a good point and a good question. The noble Baroness also gave a good example. I suggest that I take away the distinction regarding the public function and have a look at it, and that I come back on the long example she raised, which she said had been given to her by Universities UK, on 7 May when we are due to debate the university amendment in Committee.

[Baroness Chapman of Darlington (Lab)]

I sort of accept that, but while my example referred to universities we could equally apply it to other organisations as well. I would not want to see that consideration narrowed just to the issue of universities.

[Baroness Neville-Rolfe (Con)]

I agree with the noble Baroness; that is an entirely fair point. We agree that the Bill is complex when it comes to understanding. I want to make sure that, when I answer questions on things such as public functions, I am giving good information that is thought through and thoughtful. I have tried to explain today why we are using the Human Rights Act. That has advantages, which is why the Government have gone down that road.

I should respond to the point about cultural institutions that the noble Lord, Lord Wallace, raised. Some of them are in scope of the Bill in their public functions only, and I set out earlier a number of factors that courts would consider in deciding whether an act was a public act. The noble Lord also pointed out that the Bill contains the power to exclude bodies in its scope from the ban via regulations. The Government do not currently foresee the need to exclude such bodies, but this power will allow the Bill to evolve in line with government policy.

For all these reasons, I have tried to explain why we have presented the Bill in the way that we have. There is a lot of comfort to be taken from using the Human Rights Act, but I look forward to returning to some of the questions that have been asked. In the meantime, I ask noble Lords not to press their amendments.

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Moved by

[Baroness Chapman of Darlington]

14A: Clause 3, page 2, line 17, leave out subsections (2) and (3)
Member’s explanatory statement
This would remove the regulation making power for Ministers to add exceptions to the bill by secondary legislation. This is to probe when Ministers would expect to use this power.

[Baroness Chapman of Darlington (Lab)]

My Lords, my noble friend Lord Collins is not moving this amendment, but I will do my best as his understudy.

This group is slightly different from the first, but we will probably touch on a number of the same sorts of issues, as it is all about trying to get some clarity. I take what the Minister said about this being only about procurement and investment decisions. Even so, the question of what procurement and investment are in relation to the Bill is something else that we might need to tease out. If an organisation’s primary activity is in another country, as the noble Lord, Lord Boateng, referred to, would the act of withdrawing from that activity be seen as a boycott under the Bill? If the Minister is saying that it would not, that is incredibly helpful information that may well soothe some of the concerns that will be raised in our consideration of this group.

My noble friend Lord Collins and I have tabled the amendments in this group in an attempt to tease out from the Minister exactly what the Government have in mind. I do not think that the public response to the Bill has been quite what the Government may have hoped or anticipated it would be when they embarked on this endeavour. Most public sector organisations are far too busy battling to provide services—often in extremely difficult circumstances—to their patients, students or service users to be following the back and forth of this debate. That serves to re-emphasise the importance of our considerations, and of making sure we do not land them with something that is unworkable and does not achieve the objectives.

Many of us understand what the Government set out to do when they started all this, so with that in mind, we tabled the probing Amendment 14A to discover in what circumstances Ministers anticipate using the power that they are giving themselves, which allows them to change the scope of the application of the Bill through secondary legislation. We are interested to hear what the Minister has to say about why Clause 3(1) and (2) are needed, and how she thinks they will work in practice. These subsections refer to the powers which allow the Secretary of State to remove any of the exemptions that are listed in the Bill, such as the one on national security. I cannot imagine that ever happening, but there is a whole list of exemptions in there—we are very pleased to see some of them. But why is that power seen to be needed? We cannot imagine a circumstance in which any of those exemptions would need to be removed. It seems an odd power for Ministers to take for themselves.

These decisions matter in the scope of the Bill, and they can have a profound impact on our relationships with other nations and our diplomatic efforts around the world, sometimes in incredibly sensitive situations. I have seen no evidence of Foreign Office engagement with, or even support for, the Bill, and it would be a concern if these decisions were to be taken by SI. We all want government to work interdepartmentally and for all decisions to be consulted upon internally in the right way, but we understand that is not always the situation. This concern was expressed at Second Reading, so can the Minister assure us that before any delegated legislation is proposed, appropriate input will always be sought from the Foreign Office?

We have a whole bunch of amendments which are probing—tongue in cheek is too strong a phrase but we could not think of any other way to do it. This is how we do things: we table amendments, discuss them and through that we get a better understanding of what the Government are trying to do. We tabled a handful to make a point—we could have gone on, but we did not—and I will run through them.

Amendment 22 would exempt schools and early years providers from the scope of the Bill. This was tabled with a view to finding out whether the Government intend early years settings to be involved. It comes back to the issue of what is and what is not a public body. Is a private school a public body? Is an independent nursery funded by a government childcare programme a public body? Is a childminder being paid indirectly by the state a public body?

Similarly, Amendment 23 would exempt charities providing public functions. We have heard the example of housing provision, because some housing providers are also charities.

Amendment 24 exempts community interest companies. There are thousands of such bodies up and down the country, engaged in all kinds of activities. Many are responsible for delivering public services, be that in social care, education, the arts or prisoner rehabilitation—virtually every area of activity you can think of. How are they to regard the Bill? What steps should they be taking to educate themselves and find out how to make sure that they do not do anything to make themselves fall foul of the Bill?

Our Amendment 25 exempts sporting bodies. Do the Government really want to get into this issue of sporting boycotts and which athletes should be doing what, where? If a sporting body did not deem that there was to be a boycott, but individual athletes decided that they did not want to take part in a tournament, what would happen then? There is pressure and debate, inevitably, whether it is part of a BDS campaign or not—but how you define what that is, I do not really know. How would that be considered? How could those people make sure that they are not, in any way, falling foul of this legislation?

We have also tabled an amendment asking for a list of public bodies. I was trying to be helpful and to work out the best way of getting this clarity. To answer the earlier point from the noble Baroness, Lady Noakes, it could be a list that the Minister takes the power to be able to amend and add to, although I completely accept that any schedule containing a list would very quickly need to be updated. We would not want to put something in a Bill that would not stand the test of time, but these schedules are amended on a fairly regular basis.

I asked the government website for a list of public bodies, and there is one. It contains 601 organisations. I doubt it is a comprehensive list, but it contains the 24 ministerial departments, 20 non-ministerial departments, 421 agencies and other public bodies, 113 high-profile groups—they are interesting—19 public corporations, including the BBC, and the three devolved Administrations.

I looked through this list and there were some public bodies listed that I thought we needed to discuss a little bit further. What would happen with some of our defence-related organisations? There is an exemption for national security, but how would that be defined in relation to the Bill? Would that need to be something that would be tested in court? The Minister sighs: I can well understand why. There are defence training academies and there are organisations that deal with the media in relation to defence and make decisions about what adverts, and so on, can be used. These are all public bodies that have duties relating to our relationships with other nations, and they could conceivably be asked to make decisions that would fall foul of this legislation.

The Government have not really thought about the implications for some of these bodies. I accept that some of them are probably relatively low-profile, small in scale or inactive. However, our job is to make sure that we make this as future-proof and workable as we can. That is why we have tabled Amendment 54, which asks for a list, because if your name is on a list, at least you can be alerted to the fact that this is happening and you can take the necessary steps to comply.

If not, it becomes very confusing for decision-makers. As we discussed at Second Reading, these will often be volunteers or people who have not had the necessary training and who are not following the proceedings here. We really would not want to criminalise people inadvertently, when the Government are seeking to do something that is really quite narrow and, as the Minister has said, involves mostly local authorities and universities, which could be done in a completely different way.

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[Baroness Neville-Rolfe (Con)]

I am glad that we have focused on an individual example because, in my experience, this always helps us to clarify our own thinking. I think that, if the noble Lord, Lord Boateng, will allow me, I will take the orchestra example away, along with the example given by the noble Baroness, Lady Chapman, work out the right approach and get back to noble Lords, perhaps in discussions outside the Chamber.

We all want the same thing: to make sure that the Bill applies to the right bodies in the right way. That is what we are seeking to do, which is why we started with human rights legislation, which is often a popular start, for good reasons, to legislation. However, we have, as we do, scrutinised the detail of legislation today and have come up with some extremely good questions. It behoves us to go away. I am sure we can find good answers and use them to improve the Bill, which is, as I said when I introduced the Bill, what we are determined to do to get a good Bill that leaves this House in the right place and delivers on our manifesto commitment.

I turn now to Amendment 25, which seeks to probe whether a national governing body of sport that is in receipt of public funding would be in scope of the Bill. It raises some of the same questions and issues that we are going to consider. It is possible that a governing body of sport could be in scope of the Bill. If a sporting body is considered to be a public body under the Human Rights Act, on the basis that it exercises some public functions, the ban would apply only to the public functions exercised by that body, but a sporting body being in receipt of public funding would not in itself be enough for it to be considered a public authority. These bodies play a significant public role.

[Baroness Chapman of Darlington (Lab)]

We have got the public function thing again, which the Minister has referred to frequently. She has clarified that public funding is part of what will determine whether the sporting governing body is a public body, but she said that would be relevant only in the conduct of public functions. I am not clear on this, given that at the end of the previous group we were promised a response on what a public function is. I think the Minister said that she would follow up in writing, but she is relying on that term frequently in her response to this group of amendments, which I do not think is helpful, unless she can say something at this stage about what she considers a public function to be.

[Baroness Neville-Rolfe (Con)]

The noble Baroness is right that we need to use the term “public function” with care and to be entirely clear what it means, but the receipt of public funding is another legitimate issue that we need to understand—and understand the scale as well.

[Baroness Chapman of Darlington (Lab)]

As an example, if a young people’s badminton team were to be taking a tour of south-east Asia and felt it did not want to take part in events in certain regions of China and came under some pressure on this from parents or other groups, how would that be? You could say that enabling young people to engage in sport is perhaps a public function. I do not know. How would that be considered?

[Baroness Neville-Rolfe (Con)]

That example would not be procurement or investment, so it would be outside the scope of the Bill. However, the noble Baroness has raised the point. Sporting bodies can be within scope, as I explained, in procurement and investment decisions. The reason for this is that these bodies play a significant role in public life and it would send a very unhelpful signal if we were to single out governing bodies of sport as an exception to the Bill.

[Baroness Chapman of Darlington (Lab)]

I am sorry to keep on about this, but there is then a need to define procurement. In the example that I am, perhaps tenuously, relying on, there would surely be procurement of transport services, accommodation services, catering services and venues.

[Baroness Neville-Rolfe (Con)]

It seems to me that the issue here is boycotting a sporting event, and that is not a procurement or investment decision—but I have already undertaken to look carefully at these individual examples, because we all want to understand exactly what we are talking about and to come to the right outcome.

Amendment 24 would carve out community interest companies. While it is not inconceivable that a community interest company might perform a public function, neither the purpose nor the structure of a community interest company naturally lends itself to that. It is not, by and large, what the Bill is designed for.

Amendment 22 seeks to probe whether schools and early years providers, such as nurseries, are in scope of the Bill. I can confirm that all publicly funded schools will be captured by the ban when they are performing public functions, and some early years providers will also be public authorities on that definition. Other early years providers may be captured to the extent that they are performing a public function. However, I will take noble Lords’ concerns on that issue away, because I think it comes into the same category as the other two examples we will be looking at.

Privately funded independent schools—and I think this will probably apply to private universities—will be captured to the extent that they perform a public function. However, they are unlikely to perform functions of a public nature in scenarios where they are captured as hybrid public authorities, which we discussed on the previous group. The ban will ensure that publicly funded schools remain shared spaces for all, and the Bill will ensure that schools and early years providers can remain focused on their core duties, rather than being distracted by divisive campaigns promoted by BDS and others.

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[Baroness Neville-Rolfe (Con)]

I am grateful for that point, but I am not sure I entirely understand it, so perhaps I can offer to meet the noble Lord or to write to him and make sure that he gets an answer in good time.

[Baroness Chapman of Darlington (Lab)]

My Lords, I was not expecting this group to elicit quite the debate it did, but it was incredibly helpful and welcome in exposing what the noble Lord, Lord Warner, called “sloppy”. He makes a fair point. The Minister said that she did not like that phrase but, given that we have been unable to agree a definition of a “public function”, unable to elicit a proper definition of “procurement” and have not agreed what a “public body” is by any means, I have to agree with him.

This is not us being mendacious or deliberately creating problems for the Government, although you could argue that is a fair thing for the Opposition to want to do; that is not what we are doing here. Like the noble Lords, Lord Willetts and Lord Deben, we are trying to get to the real nub of how this Bill enables the Government to fulfil the commitments that we all accept they made in their manifesto. We understand that the Government want to stand by those commitments, but we are so concerned that the legislation before us could end up straying into so many more areas. I honestly do not think that when this went into the manifesto, anybody had sporting bodies or schools in mind, yet here we are with the Minister unable to answer some quite straightforward examples, including a very good one from my noble friend Lord Boateng. I regret that.

I agree with my noble friend Lord Collins that, when the Government Whip pops up to try and rescue the Minister from having to take too many more interventions, that is fair enough, those are now the rules, but this place is supposed to be able to spend a bit more time in Committee—

[Baroness Neville-Rolfe (Con)]

I think that is a little unfair. The noble Baroness knows that I am always ready to take interventions and have continued to do so. I am doing my best to do the job that this Chamber does so well. We have used the Human Rights Act definitions and this Chamber has decided that that causes problems. I am sure those are soluble.

[Baroness Chapman of Darlington (Lab)]

I absolutely did not mean any disrespect whatever to the Minister. She is completely right; she has never declined to take an intervention and has been very accessible on every occasion that I have needed her to be so outside this Chamber. The point I am making is that these considerations in Committee intentionally sometimes involve a lot of back and forth, because we are trying to get to the point—trying to understand, to improve and to do our jobs.

This has been a helpful debate. We leave with a few more questions even than we arrived with. I am sure we will come back to some of this in later stages but, for today, I beg leave to withdraw.

Amendment 14A withdrawn.

Cybersecurity and UK Democracy

Baroness Chapman of Darlington Excerpts

Tuesday 26th March 2024 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, I begin by making clear, as my right honourable friend Pat McFadden did in the other place, that we on these Benches support the Government in their efforts to counter attempts by China or any other state to interfere with our democratic processes in any way. This includes attempts to prevent elected representatives from going about their business, voicing their opinions or casting their votes.

We pay tribute to the work of the intelligence and security services in protecting our democracy and the public more widely. However, we need to question the coherence of the Government’s approach to this issue so far. Surely it is necessary for the Government to have a consistent approach across government, as the cyber threat is not restricted to democratic processes. It extends to universities, electric vehicles, energy, aviation, the safety of Hong Kong nationals, and intellectual property. How confident is the Minister that the vigilance recommended today in relation to democracy, which many would say comes slowly rather than swiftly, is equally applied to other areas of activity? Does the Minister honestly think that the limited action outlined in the Statement is sufficient to deter China? Given what we now know, what further steps are the Government going to take, since the hacking and impersonation of parliamentarians is not the full extent of this and not at all the action of a friendly state?

The calculation of any state which wishes us harm or considers that it may be necessary to do us harm in the future has changed markedly in the last decade. That which previously would need to be achieved through violent means can now be done through cyberattack. The defeat mechanism now is different. Our energy supplies, communications, water, transportation and finances are all targets in a completely new way. Undermining our democracy is just another form of attack. Does the Minister accept that we currently lack a consistent approach across government? I ask this as noble Lords will no doubt be aware that the Foreign Secretary has been the subject of unhelpful speculation regarding his interests in China. It seems peculiar that information about this has been less than forthcoming.

The Intelligence and Security Committee issued a report on China last year. Paragraph 98 of that report said:

“Targets are not necessarily limited to serving politicians either. They can include former political figures, if they are sufficiently high profile. For example, it is possible that David Cameron’s role as Vice President of a £1bn China-UK investment fund”


was

“in some part engineered by the Chinese state to lend credibility to Chinese investment”.

As I understand it, in January 2023, prior to his appointment as Foreign Secretary, the noble Lord, Lord Cameron, went to Sri Lanka to drum up investment for Port City Colombo, which is a belt and road project launched by President Xi that many believe will become a military base for the Chinese navy. It would help to protect the reputations of the noble Lord and the UK Government if there could be some clarity on whom he met and what sort of conversations took place. Can the Minister assist in providing the necessary transparency and reassurance so that this matter can be put to bed? Can she tell us whether these matters have been investigated?

We have heard assurances from Ministers that the closed electoral register has not been hacked, but anyone taking broader interest in this issue will be aware that the danger is not just about a single cyberattack event, but rather that data is gathered in large quantities over time and can be used to train AI or be interrogated by AI with impacts that we do not yet understand. What are the Government going to do, across all departments and institutions, to protect against this threat? The threat is evolving, from spying and influencing to the disruption of elections and critical infrastructure. As the threat has changed, surely our response needs to change in turn.

[Lord Fox (LD)]

We welcome this Statement, which we hope is a significant step towards a more strategic, cross-party approach to this issue. I take the opportunity to acknowledge our friend the noble Lord, Lord Alton, who has earned the opprobrium of the Chinese Communist Party thanks to his tireless campaigning. He should accept this as a badge of honour, albeit one that comes with ominous concerns. Over the last 24 hours, the Foreign Secretary issued a statement and called Beijing’s actions “completely unacceptable”. He added that:

“Such action from China will not be tolerated”.


Given that this is what the Government believe, the response to date seems feeble. This feebleness was highlighted by many of the Minister’s colleagues in the Commons, and not just Sir Iain Duncan Smith. But perhaps the reason for this caution was voiced by an unnamed Cabinet Minister quoted in the press as saying that the Government do not want to start a trade war. However, in response, China has said that it “strongly condemns” the UK’s “egregious” move to sanction Chinese hackers, adding that it would

“take the necessary reaction, as a matter of course, to the U.K.’s moves”.

What is the Cabinet Office assessment of the risk to the UK economy? How are the UK Government preparing to resist any retaliation?

During yesterday’s Statement, Deputy Prime Minister Oliver Dowden noted that it is no surprise that China

“should seek to interfere in electoral processes”

in successful democratic countries. The Deputy Prime Minister may not have been surprised, but the integrated review—even its refresh—does not anticipate this level of attack. What we have today is inadequate, so I suggest that the Government use this to instigate a process of significant and proactive cross-party consensus that we can take forward and have a cross-sectoral plan for our relationship with China.

The hack of the Electoral Commission is very worrying; can the Minister explain why it took so long for it to be disclosed? According to the NCSC, this data is highly likely to be used by Chinese intelligence services for a range of purposes, including large-scale espionage and transnational repression of perceived dissidents and critics in the UK. How will the UK Government protect those here in the UK-Chinese community who may be subject to long-distance repression?

Yesterday the Opposition’s spokesperson, and their spokesperson here today, rightly highlighted China’s voracious appetite for data and its potential uses as computing power improves. Even if data cannot usefully be manipulated and weaponised, it is used as a very useful training tool for artificial intelligence models, as we just heard. I echo the question asked yesterday: what are the Government doing to protect complex and valuable public datasets from being stolen in this way? Two, for example, are health data and criminal records, but is not just our existing datasets we should worry about; the Chinese have the capability to build their own. For example, years after the decision to remove it, Huawei remains integral in our telecoms infrastructure. The Hikvision ban extends only to so-called sensitive sites, despite the fact that we have pushed hard to ensure that it extends to all public buildings.

This is just the tip of the data-gathering iceberg that exists already in this country. For example, last week, the Council on Geostrategy published a new policy paper highlighting the risks from Chinese cellular modules—so-called IoT modules. This raises an issue around the role of devices that sit inside almost every internet-enabled device, creating another whole cyber danger area. Then there are electric cars, which are little more than data hoovers, sending information back to China.

China has data and technology strategies that directly link to its strategic and security aims. They are decades ahead of our defences. We have to work together, and quickly, to develop the necessary responses. Despite the very good work that has been done by our own agencies to protect us, so much more is needed.

Cabinet Manual

Baroness Chapman of Darlington Excerpts

Monday 25th March 2024 Lords Chamber

[Baroness Neville-Rolfe (Con)]

As far as the manual is concerned, the Government, as I have said, are considering options on timing and content in the light of the debates that have been had. As far as good government is concerned, we try every day to ensure that we are delivering the right things for the people of Britain and that hard work is rewarded.

[Baroness Chapman of Darlington (Lab)]

My Lords, the Government made a specific promise about making sure that this was done by the end of the Parliament. With that in mind, and given the widespread view that this is an important piece of work that must be completed, will there be some chapters perhaps ready for view by our Constitution Committee very soon? We are all aware that the clock is now ticking.

Economic Activity of Public Bodies (Overseas Matters) Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Wednesday 20th March 2024 Lords Chamber

Moved by

[Baroness Chapman of Darlington]

7: Clause 1, page 1, leave out lines 20 to 22
Member’s explanatory statement
This amendment is to seek clarity on when an individual is considered to be the decision maker for the purposes of this bill.

[Baroness Chapman of Darlington (Lab)]

My Lords, it might be helpful to explain that most, if not all, the amendments we have tabled reflect the fact that we find this quite a difficult Bill to amend in a way that would make it work because, as many noble Lords have already said, it is very wide-ranging and quite vague in many of its terms. Our amendments are mostly intended to elicit not a response from the Minister to the amendments as such, but an explanation of the Bill’s intention, so that we are clear, or as clear as we can be, about exactly how the Bill is intended to be interpreted. This group of amendments is more about who the Government wish to catch with the measures in the Bill, and how it will work. Through these amendments, we want to tease out how the Government will decide who will be subject to enforcement action.

Amendment 7 would remove lines 20 to 22 in Clause 1:

“and those references to the decision-maker include, in a case where the decision-maker is not an individual”—

I assume that that means a local authority, a university or some other public body—

“the individuals who in fact make the decision for the decision-maker”.

I am not sure whether the Government want, in Clause 1, to include members of a governing body or councillors serving on a particular committee—we will come on later to definitions of public bodies. Often, people serve in these capacities as volunteers or as inexpert lay members. Are the Government really trying to say that they want those individuals to be held to account in a way that, in other parts of the Bill, they seem to be suggesting the body itself is to be affected? We need to be clear in our own minds which it is.

We would like to understand in what circumstances individuals will be given notices and then fines. I know we will come on to this later, but we do not know the extent of these fines. Will the fines be applied differently to individuals, compared to a council or a university? Pragmatically, we would expect them to be, but how will they be treated differently if they are to be subject to enforcement action? How will the enforcement agency decide? Is there to be discretion as to whether it is holding an individual responsible as the decision-maker, or is the organisation the decision-maker? How will it assess that? Will it look at the individual behaviour of particularly influential senior managers, members of staff or elected representatives? Would the chancellor of a university, for example, be held to account, or the wider organisation; and how will that judgment be made? The Explanatory Notes do not help us with this question in relation to Clause 1. That is why we have also tabled Amendment 55, which asks the Secretary of State to publish guidance on the circumstances in which an individual is the decision-maker under the Bill, and the circumstances in which they are not.

I am not a lawyer, so perhaps the noble Lord, Lord Wolfson, would like to help us out here. When does this corporate liability, if I can put it that way, become an individual liability? The LGA has helpfully given examples of this question arising. I do not know whether noble Lords have had a chance to look at the pre-legislative scrutiny that took place in the Commons. The LGA was very clear about lots of things in its oral evidence, including that some councillors who serve on pensions committees are not particularly expert in managing these funds, but they are very well supported and advised by their officers, and they take their duties very seriously. Even where, say, a newly elected councillor arrives with some grand intention or attempts to argue for some kind of divestment decision, actually, their fiduciary duties, it is pointed out to them, override such concerns, and that does tend to become the view of the committee.

The LGA, because of its experience of how these things work in practice, said in its evidence that any enforcement action should be directed towards the administering authority and not the individual councillors. Can the Minister explain how an enforcement authority will decide whether individual or corporate responsibility applies for a particular decision? The LGA talks about this in relation to judicial review as well, which we will come on to later. The LGA feels that the subject of the judicial review should not be the decision-making authority but rather the enforcement authority, so that it is its decision that is challenged. If it decides not to issue a notice, that can be challenged, but the risk does not reside with the individual councillors.

--- Later in debate ---

[Baroness Chapman of Darlington (Lab)]

What the Minister is saying is genuinely quite helpful, but I am just trying to apply this to my experience of the real world. If a councillor, say, were to make a statement or cause something to happen at a conference or something like that, the council would be held responsible as a public authority for the actions of that individual. The trouble with that, in a way, is that that would then influence the advice, guidance and training that is given to elected individuals, and then you would get the chilling effect that we are all so concerned about. Just to make sure, have I actually understood that correctly? Is that what the Minister was explaining to us?

[Baroness Neville-Rolfe (Con)]

I think that sounds right but, if I may, I will clarify if I got that wrong. To some extent, it is important in Committee that we actually understand what is happening. That is what, in the spirit of the noble Baroness’s question, I am trying to do. Even if a decision were delegated to individuals in a public authority, such as a commissioning board in a local authority, I think it is clear that the fine would be imposed on the public authority, not the individual.

I should briefly address why universities need to be in the scope of the legislation in response to my noble friend Lord Johnson, the noble Lord, Lord Hannay, and the noble Baroness, Lady Fox. We will come back to this on later amendments. It is an area of particular interest to a lot of noble Lords, not least because of the huge contributions people in this House make to the university sector.

However, the fact is that universities are a frequent target of the BDS movement, and some student unions —to come back to that point—have passed motions pressurising their universities to divest from Israeli companies. The Bill will ensure that universities cannot implement such policies in response to pressure from their student unions, as that would be divisive and could potentially contribute to rising anti-Semitism on university campuses, which is a concern.

[Baroness Chapman of Darlington (Lab)]

The Minister raised it—can she give us one example of where a university has ever succumbed to such pressure from its student union?

--- Later in debate ---

[Baroness Neville-Rolfe (Con)]

I think I used the word “pressure”. Certainly, I was reading “pressure”, but perhaps I blurred the wording and said “pressurised”. I could equally have used “influenced” or some other word. I was trying to explain what we were getting at on the education side of things.

I have a couple of examples of student union pressure, which I mentioned earlier. Warwick student union held an all-student vote in 2020 to pressure the University of Warwick to fully divest from all unethical industries and release all investments. That included divesting from companies in support of a boycott of Israel, and divesting from international companies that are complicit in violations of Palestinian rights. There was also the example of Sussex University, which I mentioned a little earlier.

[Baroness Chapman of Darlington (Lab)]

The thing is, though, as we are teasing out, is it not right that the Bill would not stop Warwick University student union from passing a motion in that regard? It would stop the university from acting on it, but no university has ever acted on these things. That is why we are all scratching our heads a little about what we are going to get from the Bill. It was a manifesto commitment—we understand that—but it is not our fault if the Government cannot turn their manifesto commitment into a usable piece of legislation.

[Baroness Fox of Buckley (Non-Afl)]

On the Warwick University point, for clarification, the other important thing that happened there was that Warwick University academics refused to sit on a panel discussing the issue of Israel, and so on. That was led by academics. It would not be affected by the Bill. The Minister can say, “Oh, that’s okay, it won’t be affected by this Bill” but that has had a much more damaging impact on the debate around Israel in Warwick University than anything that a few people at the student union did and that the university authorities did not act upon. What the university did not do was support those Jewish students and the organisation that organised that debate, and it let the academics carry on. The question of what the Bill will and will not do, and who will be held responsible, is what we are trying to clarify in this Committee.

--- Later in debate ---

[Baroness Neville-Rolfe (Con)]

I thank all noble Lords, including the noble Baroness, Lady Deech, for their interventions. I observe that, obviously, the Bill will make this boycotting activity by student unions almost pointless. But I say to the speakers that this is a group about decision-makers, and we are ranging widely into the debate about the exact involvement of universities, although that has been helpful in informing the next stage of this Committee.

Returning to decision-makers, perhaps I could just say in conclusion that I trust that this addresses some of the concerns of noble Lords and the noble Baroness. My officials will provide further clarification in the Bill’s Explanatory Notes, as requested by the noble Lord, Lord Wallace of Saltaire. I hope, in the light of the explanations I have given, the noble Baroness will feel able to withdraw her amendment.

[Baroness Chapman of Darlington (Lab)]

My Lords, that was probably a bit more helpful than I had anticipated, in that it fleshed out some of our really quite fundamental concerns. The noble Baroness, Lady Deech, made a very powerful case for why action is needed to prevent some of the antagonism and fear, and those activities that have happened on campuses and elsewhere that we all want to prevent. But this Bill does not do it: it deals only with boycott and divestment decisions. It probably brings into scope people and decision-makers that the Government did not have in mind.

The idea that people who want to campaign on these issues will suddenly stop doing so as a consequence of the legislation is fanciful because, as the noble Lord, Lord Mann, said in his Second Reading speech, they will just change the target from public authorities to others. It will not deal with some of the unpleasantness and the atmosphere on campus. That will not be assisted in any way, and the way the Bill is drafted might actually make things worse. It will not deal with campaigns to prevent certain events or not to have certain speakers. Those things are completely outside the scope of the Bill. We are focusing on universities to make this point, but similar things could be said about local government.

I am very happy to withdraw my amendment, but I think we are going to end up with this discussion on most of the groups, because the Bill is so unsatisfactory and does not actually fulfil the aims that the Government say they wish to achieve. I beg leave to withdraw my amendment.

Amendment 7 withdrawn.

Covid-19: Lockdown Costs and Benefits

Baroness Chapman of Darlington Excerpts

Wednesday 13th March 2024 Lords Chamber

[Baroness Neville-Rolfe (Con)]

I thank the noble Lord for his wise observations. I would observe that the health of the economy and the health of the population tend to go in tandem, and that was one of the things that we noted during the pandemic. However, I come back to my point that the inquiry needs to look at these things for us. We need to learn the lessons and look at evidence objectively.

[Baroness Chapman of Darlington (Lab)]

My Lords, throughout the pandemic, the great British public stepped up, stuck to the rules and did everything asked of them, from staying indoors to volunteering at vaccine centres. There is plenty to be learned about what worked and what did not, not least when it comes to government procurement. While the Minister is in this reflective mood, can she tell us what is to stop the same wasteful approach to emergency contracting rules that we saw during the pandemic, with friends and donors of the Tory party given fast-track VIP access while decent, skilled, local businesses were denied the same opportunity?

[Baroness Neville-Rolfe (Con)]

I cannot accept that conclusion. Due diligence was carried out on all companies that were referred to the Department of Health and Social Care, and companies were subject to the same checks. However, module 5 of the inquiry will look at procurement. The noble Baroness and I worked on changes to the Procurement Act, not least to bring in a higher degree of transparency and to make sure that we have more competition in procurement, which I am sure will be helpful in a future pandemic.

Scottish Government: Devolved Competences

Baroness Chapman of Darlington Excerpts

Wednesday 13th March 2024 Lords Chamber

[Baroness Neville-Rolfe (Con)]

I can only agree with my noble friend, but I think it is a matter for Scottish taxpayers. I look forward with interest to the coming months and years. We need to try to work well together and be clear about the rules, but they were perhaps not perfect at the start.

[Baroness Chapman of Darlington (Lab)]

My Lords, of course the Minister is right that it will be the people of Scotland who have the final say on the performance of the Scottish Government and their choice of priorities, and they will have the final say on the Government here in Westminster, too. But does the Minister understand that there has been—how can I put this?—something of a failure to respect devolved Administrations at various times by this Government? Does she also accept that the current system of joint ministerial committees has struggled to be as effective as it should be because of that, and that is one of the reasons that we have got to where we have with this issue?

[Baroness Neville-Rolfe (Con)]

I actually think that the joint committees are important and give a sort of discipline to business. Where I am with the noble Baroness is that it is actually important, on specific bits of policy, to work together with the devolved Administrations. Certainly, in the areas that I deal with, I really try to do that—with things like borders, for example; the country is borderless, so it is very important. We can always do better, but there are differences of view, and sometimes that complexity makes it hard, such as with statistics, which I was giving evidence on yesterday.

Ministers: Legal Costs

Baroness Chapman of Darlington Excerpts

Tuesday 12th March 2024 Lords Chamber

[Baroness Neville-Rolfe (Con)]

The Secretary of State has explained her actions fully. I refer noble Lords to her statement. The important thing is that legal advice was taken, and subsequently there was a full and final settlement of the dispute. The Secretary of State made it clear that she should have sent the letter in confidence to UKRI and apologised for that. The basic principle is that it is very important that Ministers can seek advice on work that they carry out as part of their official duties, otherwise there would be a chilling effect on public life. This has been important to all Administrations.

[Baroness Chapman of Darlington (Lab)]

My Lords, if the chilling effect were to extend to preventing Ministers posting things on social media at midnight, we might all be able to live with that. The Minister said that the indemnity covered the activities of her fellow Minister while fulfilling her duties, so can she advise the House which of her ministerial responsibilities the Secretary of State’s comments attacking two academics were fulfilling? Will she also explain why the taxpayer should foot the bill for a blatant abuse of position and power by the Secretary of State that further undermines the standing of the very UK research institution that her department is supposed to be promoting?

[Baroness Neville-Rolfe (Con)]

The Secretary of State is responsible for the non-departmental public body UK Research and Innovation. She was operating in that context. Her intentions were always to do the right thing. It is very important that Ministers can do this. Of course, insurance is available to MPs, which is provided by the House at the taxpayers’ expense, in cases where professional indemnity insurance covers defamation. The House of Lords Commission is due this week to discuss the provision of professional indemnity insurance to Peers. Of course, there is indemnity insurance in the private sector because directors have to act in good faith and in the wider interest.

UK Population Growth

Baroness Chapman of Darlington Excerpts

Monday 4th March 2024 Lords Chamber

[Baroness Neville-Rolfe (Con)]

The figure for June 2023 was actually down to 672,000 people, but my noble friend is right to point to the problem of underemployment. The focus of the Secretary of State for Work and Pensions in changing the benefits system and helping people into work is to improve skills so that everybody in this country who can possibly do a job has one, because that is very much related to contentment and happiness—certainly in my own experience. It is a very important area of work that this Government have truly underlined.

[Baroness Chapman of Darlington (Lab)]

My Lords, as we have heard, the UK population is increasing, but it is also ageing, with a declining proportion of the population now of working age. There were just over 600,000 live births in England and Wales in 2022, which was a 3.1% decrease from the previous year and the lowest number for 20 years. That means that the current UK fertility rate is about 1.5 children per woman, the lowest since records began in 1939. Does the Minister agree with Professor Jonathan Portes from King’s College, who said that

“the impact of the housing crisis on young couples, sharp cuts to financial support for low income families, and access to childcare are all likely factors”?

[Baroness Neville-Rolfe (Con)]

The interesting thing about the fertility figure, which the noble Baroness rightly mentioned, is that it is partly about people delaying when they have children and partly linked to the factors that she mentioned, including housing. So a priority for us is attacking housing by making more housing available for young people, which is very difficult. The fertility rates are themselves a problem, but not one that is confined to the UK; I used to work a lot in Korea, where fertility rates are horrifically low.

Economic Activity of Public Bodies (Overseas Matters) Bill

Baroness Chapman of Darlington Excerpts

2nd reading
Tuesday 20th February 2024 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, I think the best way to approach a Bill such as this is for me to be completely straightforward with the House. We on these Benches oppose this Bill. We do not support boycott, divestment and sanctions campaigns towards Israel—they wrongly single out one nation and are counterproductive to peace—but the Bill is deeply flawed. It contains draconian powers and fails in its central purpose, which surely ought to be to prevent anti-Semitism.

The Bill prohibits public bodies from making procurement and investment decisions based on their “political or moral disapproval” of a foreign state’s conduct. The Government say that this is an attempt to ensure that all UK public bodies speak, as the Minister said, “with one voice” on international issues. However, the Government seem to think that there are councils, universities, NHS trusts and nursery schools with their own foreign policies, and that this is somehow confusing to our international allies. In fact, the impact assessment points to just three local government pension funds in Scotland that have disinvested from an Israeli bank since 2018. None of them say that this was a political decision or should be taken to represent any kind of political or moral disapproval, so can the Minister explain how the Bill would have impacted on those decisions? Would trustees be interviewed by enforcement authorities, for example?

The naivety of the Bill is to believe that trustees of pension schemes have, until now, been making investment decisions—which have a profound impact on their funds—in response to local boycott, divestment and sanctions campaigns. There is just no evidence for this. The risk is that the Bill will serve only to heighten tensions. I am afraid it plays into the hands of those who spout incomprehensible conspiracy theories and will have unintended consequences. I repeat that Labour has consistently opposed boycott, divestment and sanctions against the State of Israel. We know, and accept, that some campaigners have used the cover of BDS to whip up hate towards Jewish people, to hold Israel to different standards, to question its right to exist and to equate the actions of the Israeli Government with the Jewish people. We know that this happens and it is utterly wrong, but do we really think that the Bill will eradicate anti-Semitism? My fear is that it will make things worse, and it could not be happening at a more sensitive time.

The Bill treats the Occupied Palestinian Territories as though they are, in effect, the same as the State of Israel. This runs counter to decades of British diplomacy under Labour, Conservative and coalition Governments. In 2016, the UN Security Council passed Resolution 2334, requiring every UN member to distinguish between the territory of the State of Israel and the Palestinian territories occupied since 1967. The resolution says that illegal settlements have “no legal validity”, constitute

“a flagrant violation under international law”,

and are

“a major obstacle to the achievement of the two-State solution”.

Not only was the UK involved in drafting this resolution, but the Government’s advice to UK businesses investing in the region makes this distinction clear. Can the Minister tell us what the Foreign Secretary had to say about this Bill? Can she tell us who drafted it? It is so strange that a Bill is being presented that so blatantly contradicts an internationally agreed and long-standing position of this Government.

Then there is the issue of freedom of speech. Not so long ago, we spent days in this House on a Bill to protect the right of individuals to express their views. This Bill does not do anything to legislate against the expression of anti-Semitism, but it does curtail the right to freedom of expression. Clause 4 is clear: decision-makers cannot express political or moral views that might be seen to relate in any way to procurement decisions. This is unenforceable. Councillors are elected officials. They have every right to express their views on moral and political issues—some might say that is their job. They do not, of course, have a right to whip up anti-Semitism and where that happens it must be dealt with, but the Bill will criminalise community representatives expressing views in a free and open way that has been a fundamental underpinning of our democracy for hundreds of years.

I listened to what the Minister said to try to persuade us that this is not the case. I am afraid she is being completely unrealistic and naive. Why does she say, on the one hand, that a council leader can express a view calling for a boycott on their social media or about another council, yet they would fall foul of this legislation should they express that opinion in a different context? What will the likely advice be from a borough’s solicitor to a council leader or a cabinet member who seeks to express such views? I will tell you: it will be to keep their mouth shut. Is that what the Government really want?

The Minister says that the Bill applies only when a councillor acts on behalf of a council. What does that mean? It is naive in the extreme. I do not know whether she has served as a councillor; I have, and I do not see how the Bill’s provisions, as currently written, are going to work. Suppose a council leader attends a local government conference and expresses a view on human rights, modern slavery, tobacco production, the arms industry, animal welfare or the environment in relation to another country. They will be advised not to express that view or to tone it down. That is not the kind of democracy that I think we want to create.

As for universities being within the Bill’s scope, they are not even classified as public bodies by the ONS, and nor should they be. Why are they included? Which university has actually acted—not made a statement but acted—as a result of a BDS campaign? Perhaps the Minister can tell us. We have just legislated to place a duty on universities to uphold freedom of speech and academic freedom. When does an academic speak in an individual capacity and when do they speak as a representative of their institution? This matters. I just do not think that Ministers can properly answer that question—not when they have an enforcement body with an annual budget of £120,000 to £200,000. I suggest that the Minister might need to look at increasing that, because there are likely to be considerably more complaints and vexatious referrals to that body than the one or two incidents referred to in the impact assessment.

This really does matter, and the issue must be properly answered. If not, there will be the most profound, chilling effect. What would happen if a professor expressed at an event a view relating to China, for example—and was paid for by the university as its representative—at the same time as a procurement or investment decision was being made by that institution? It is not clear from the Bill how that would be investigated.

I accept that there have been some BDS campaigns on some campuses where the atmosphere experienced by Jewish students has been damaged by those campaigns. I completely accept that, and it is right that we do what needs to be done to protect those students. However, the Union of Jewish Students is against this Bill. We need to find a better way to tackle this issue. Universities are not public bodies but are included in the scope of the Bill; however, where is the comprehensive list of public bodies we need in order to consider whether any other institutions might be inappropriately included? I have seen a list, but it is nowhere near comprehensive. It is a very odd list, containing some very surprising institutions such as small children’s charities and the like. This makes you wonder whether the Bill is as well thought through as it ought to be.

One final point is the lack of support from the devolved Governments. The Minister says that the Government have no intention of seeking any kind of legislative consent. That is of course the Government’s right—but is it good politics? Is it good for our democracy for the Government to proceed in this way? What conversations has the Minister even had with her counterparts in the devolved Administrations? Can she confirm that the devolved Governments will be subject to the constraints of this Bill? That being the case, can she understand why this would be a problem for them as democratically elected, accountable bodies in their own right? What have they said to her about what they think of the Bill?

Noble Lords will perhaps remember that we on these Benches supported an alternative approach, during the passage of the Procurement Bill. The approach the Government are taking in this Bill is not, therefore, the only option. Public bodies should be able to take ethical decisions, but these should be based on consistent principles applied equally to all countries. However, the Government rejected that amendment, which would have been a far better way to go about dealing with BDS than this Bill is. Why are the Government hell-bent on taking this approach? I think it is because they want to make political capital out of a very serious issue. This is a sad state for a Government to find themselves in—desperate, in fact. The Front Bench in the other place offered four times during the earlier stages of the Bill to sit down with the Government and formulate a more effective approach. That offer remains open. I only hope that the Minister and the Government are listening.