6 Lord Wolfson of Tredegar debates involving the Cabinet Office

Wed 20th Mar 2024
Economic Activity of Public Bodies (Overseas Matters) Bill
Lords Chamber

Committee stage & Committee stage: Minutes of Proceedings & Committee stage: Minutes of Proceedings part one & Committee stage & Committee stage & Committee stage: Minutes of Proceedings part one & Committee stage
Baroness Noakes Portrait Baroness Noakes (Con)
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My Lords, we should get this into perspective. I say to my noble friend Lord Deben and indeed to the noble Lord, Lord Hain, that this Bill is handling one particular aspect: fundamentally, boycotts and divestment decisions. There is a whole range of law in the Procurement Act, which we passed last year, which sets out the UK’s version of the procurement rules we used to take from the EU—they have been modernised for our own purposes, but they are still hugely complicated.

For a very long time, the Government’s own procurement advice to public bodies was that:

“Public procurement should never be used as a tool to boycott tenders from suppliers based in other countries, except where formal legal sanctions, embargoes and restrictions have been put in place by the UK Government”.


In many ways, this Bill provides a more liberal approach to that blanket proposition, which was in a government procurement policy note and which has been governing procurement for a long time. We need to see this Bill in context and in the light of the rather narrow area it is trying to deal with.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, unlike the noble Lord, Lord Hain, I think this is a rather good Bill, although I agree respectfully with him that these amendments, particularly those on international law, merit careful consideration by the Minister and the Government. I say that essentially for three reasons, and I can be brief.

First, the general approach in this country is that public bodies do not have their own interpretation of international law. It is the Government who assess international law obligations, because they are binding on the United Kingdom as a state.

That leads me to the second point, which might in part answer that made by my noble friend Lord Deben. The effect of the Bill as drafted is to introduce, by the back door, potentially vast swathes of international law into our domestic legislation. As I never tire of saying in this House, we have a dualist system: international law is not part of domestic law unless and until it is incorporated. So the answer to my noble friend’s point may well be this: if somebody were to say in a domestic court that a public authority was in breach of “the law” because it had not complied with some international law obligation that was not part of our domestic law, the public body’s obvious retort would be to say that it is not subject to that obligation.

The third point is a practical rather than legal one. My concern is that, in the real world, if the Bill is left as drafted it will in practice drive a coach and horses through what it really seeks to achieve, because the courts will be clogged up with arguments, even if they are entirely unmeritorious, as to the scope of international law. I agree with the noble Lord, Lord Verdirame, about Richard Hermer KC’s opinion: it is something of a curate’s egg, and I will perhaps come back to that in a later group. But I agree that, on this point, he is absolutely right to sound a note of warning and to highlight that the Bill as drafted risks undermining the Government’s ambitions for it.

I gently invite my noble friend the Minister to reconsider the Government’s approach to this international law question, which we can perhaps come back to at a future opportunity.

Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
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My Lords, I apologise to the Committee because I did not participate in previous days in Committee or at Second Reading, but as these groups touch on the areas that I speak on from these Benches—international trade and international relations—I want to ask the Minister for clarity on a couple of areas.

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Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
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I do not think that it is nitpicking. I would be considered a person when a body was making a decision based on what I called them to do. I know that I am not a decision-maker, nor am I a Minister of the Crown, nor am I an exempted officeholder, but I would be considered a person calling on bodies to act. If bodies choose to act on what I say, they are currently prohibited under this from acting.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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The central point the noble Lord is seeking to make is that he will not be neutered. He would not be neutered because this Bill does not prevent any person seeking to influence a decision-maker. What it will do is prevent the decision-maker acting on those considerations if they are contrary to the Bill. The noble Lord can say what he likes here, in the street or anywhere else. This is a totally futile point.

Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
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I am grateful that Hansard will record the contradictory nature of the noble Lord’s intervention on me, when it comes to the nonsensical nature of the point of seeking to influence groups. Let me turn to why—

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Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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My Lords, it is not my usual role, but I shall be a bit more conciliatory than other speakers. Although I see the Bill as very heavy-handed, almost draconian, and it should never have been brought to your Lordships’ House, at least we have an option now. As the noble Lord, Lord Collins, pointed out, the House can work together. The Minister herself said that she values this House’s expertise. We have not noticed that over the past few years, because virtually everything we suggest gets thrown out. Amendments 19 and 48 would make the Bill less heavy-handed and would mean that public authorities could make decisions of their own when they saw illegitimate human rights abuses. I do not see why anyone would want to reject that idea.

I say to the Government: bring your own amendments if you want to, but, in essence, repeat what we are trying to say here and, perhaps, make this Bill less awful.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I will come back to the text of the proposed amendment. I hope it is in order if I use my short intervention essentially to ask the noble Lord, Lord Collins of Highbury, a series of questions. Obviously, he need not reply now, but I just wish to understand how this amendment is meant to work. I will leave the broader points to one side for the moment, although I always want to ensure that the noble Lord, Lord Purvis of Tweed, with whom I often disagree, remains proudly unneutered in everything he wants to say, here and elsewhere.

As I understand Amendment 19 and the proposed clause, it seeks to enable a public authority to publish policy criteria. Those policy criteria, as we see in proposed new subsection (4B), relate to

“disinvestment in cases concerning contravention of human rights”.

The public authority’s criteria have to do two things. First, as the noble Lord said, they “must be applied consistently” to all countries and, secondly, they must be consistent with the guidance published by the Secretary of State, although we are not helped at all as to what that guidance would, might or should be. So let us assume—

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
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Can I interrupt the noble Lord? I was going to do it at the end, but it might help the Committee. The noble Baroness, Lady Noakes, said that this would create loopholes, and the important point I wanted to make is that there is nothing wrong with public bodies taking ethical investment and procurement decisions. The reason there is nothing wrong in that is that the Government advocate it. As my noble friend Lord Hain said, we have the Government’s current national action plan on the UN Guiding Principles on Business and Human Rights —and by the way, the Minister says in the introduction that the Government firmly believe that

“the promotion of business, and the respect for human rights, go hand in hand”.

So we are being consistent here, in this amendment, with current government policy.

My noble friend read it out; I will quickly repeat that, in current guidance, the recommendation of the Government is to

“continue to ensure that UK Government procurement rules allow for human rights-related matters to be reflected in the procurement of public goods, works and services, taking into account the 2014 EU Public Procurement Directives”—

the noble Baroness, Lady Noakes, mentioned this—

“and Crown Commercial Service guidance on compliance with wider international obligations when letting public contracts”.

So I am not reinventing something; it is there. We have good policy; let us make sure it is reflected in this legislation.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I am extremely grateful to the noble Lord for setting that out so clearly. It brings me to the question I hope he might be able to pick up later, so that I can really understand how this works. We have a public authority, which publishes a set of policy criteria relating to disinvestment in cases concerning contravention of human rights. As he has just set out—and certainly implied by what he just said—it would not be required, for example, to adopt the ECHR in full; it could highlight certain things.

What would happen if a local or public authority decided to say, “We are not going to disinvest or have a policy of disinvesting from countries which do not, for example, allow gay marriage; we will not have a policy of disinvesting from countries that discriminate against women, but we will have a policy, which we will apply consistently throughout the world, of disinvesting from countries that are in control of occupied or disputed territory”? Under the noble Lord’s approach, would that be permitted?

Lord Shipley Portrait Lord Shipley (LD)
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Will the noble Lord give way for a moment? This discussion is extremely important, because I do not interpret Amendment 19 as the noble Lord is interpreting it. He says that there could be a statement, and it would have to be applied consistently to all countries. But the amendment also says that it must be in accordance with guidance published by the Secretary of State. The noble Lord has not mentioned the fact that guidance to underpin what a local authority was doing would be in place.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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Forgive me, but I think I did mention the guidance right at the beginning of my remarks. Indeed, I made the point that I did not understand that the noble Lord, Lord Collins of Highbury, had identified what that guidance would, should or might contain—so I think we are on the same page.

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
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Sorry to interrupt, but I thought I did, at the beginning, when I moved the amendment. Sadly, the noble Baroness, Lady Deech, did not refer to my opening remarks when I moved it. I made it absolutely clear that there is a difference between a public body having an ethical investment and procurement policy and an organisation which, as some individuals are trying to do, seeks to target Israel alone, and have standards for Israel that are completely different from those for other countries. I made that absolutely clear.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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To be absolutely clear, my question, which I hope the noble Lord will pick up when he responds, is this. My putative public authority has a consistent policy, which it applies consistently to all countries around the world, of not disinvesting merely because a foreign country does not allow gay marriage, or treats women in a discriminatory fashion, but of disinvesting when a foreign country is in control of occupied or disputed territory. Would that be permitted, or not permitted, under the noble Lord’s amendment? I look forward to his answer in due course.

Lord Mann Portrait Lord Mann (Non-Afl)
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My Lords, there are a couple of observations, one of which has been rather lost in the debate. The first one has not. I merely make the observation that I am increasingly concerned by the concept that the implementation of legislation could be at the discretion of the Foreign, Commonwealth and Development Office—whether it is run by Robin Cook, or the noble Lord, Lord Hain, or the noble Lord, Lord Cameron, or Ernie Bevin.

There are different flavours of Foreign Office, but my observation of the Foreign Office over the years is that it often manages to face two ways at the same time. Indeed, it might well regard that as a key part of the art of diplomacy. One can therefore read into Foreign Office policy almost anything one wants to do at any one time. The Foreign Office often makes quite a virtue of presenting a particular side to one group of people and another side to another group of people. However great those running the Foreign Office of the day might be, they are liable to change in the future. So I question whether that, as a basis for legislation, is sensible.

The key point I want to make is one that was made by the noble Lord, Lord Collins, as I understood him, at the beginning. Governments come and go. There will be a general election. Who knows who will be in power after that? There will be another one after that, in however many years—perhaps five years. Who knows —and who knows who that Government will be? There will be different flavours of government—but legislation, unless it is altered by Parliament, will remain.

The question of double standards in foreign policy is a fundamental part of the IHRA definition of anti-Semitism—a definition that was adopted first by the United Kingdom, in 2017, before any other country, but which has now been adopted by many countries. Pertinent to this debate is the fact that it has been adopted by virtually every political party represented at Westminster, including the Labour Party, the Conservative Party and the Liberal Democrats.

Within it, the concept of double standards against the State of Israel, judging the State of Israel in ways in which one would not judge any other state, is rather fundamental. It is there, I guess, particularly because of what people have said, for example, in the United Nations. I am not talking about the legitimacy or otherwise of any specific United Nations vote or decision, but what one can objectively demonstrate is that there has been a huge number of decisions relating to the State of Israel, far outweighing, usually, every other country in the world put together. That, I think, could rationally be argued as therefore being a double standard in approach—of unduly concentrating on one member state of the United Nations and not being equal handed. The IHRA definition is quite specific that that should not happen, which is not the same as to say that one should not be vehemently critical, if one chooses to be, of the State of Israel, its Government or its policies. Many people are, including many people in the Israeli Knesset. It does not state that that is in any way illegitimate or anti-Semitic, but it does say that double standards should not apply.

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Lord Shipley Portrait Lord Shipley (LD)
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My Lords, this has been an extremely helpful debate. As the noble Lord, Lord Mann, identified, there is a conundrum in the Bill. The Minister may wish to reflect on the discussion that has taken place. She said after the first group that she valued the expertise of this House and would go away and think about how the Government would respond. I took that to mean that they may make changes on Report, which is theoretically likely to come in about three weeks’ time, but may take longer.

I have concluded, having listened to so many opinions—I am not a signatory to Amendments 19 or 48, though I have huge sympathy with them—from my noble friend Lord Purvis of Tweed, the noble Lord, Lord Collins, the noble Baroness, Lady Jones, and others, that it would be useful if the Minister would consider trying to bring all those opinions together into one place to talk further. That is the only way in which progress on this Bill will be made.

I think that I heard the noble Baroness, Lady Noakes, say that you cannot have local authorities setting foreign policy. I do not think local authorities want to do so, are doing so or have any ambition to do so. However, they are concerned about human rights and doing the right thing in their procurement and investment policies. Nevertheless, the issue must be discussed.

I took Amendment 19 to mean simply that a statement of policy relating to human rights would need to be considered by those seeking procurement or making investments, and that the statement may not single out individual nations and would therefore have to be applied consistently, as has been confirmed. However, it would have to be in accordance with guidance published by the Secretary of State. I find the concerns we have been hearing against Amendment 19 unfounded. The only solution I can see to this is that the offer made at the outset by the noble Lord, Lord Collins, should be taken up by the Minister. It would be really helpful if that could happen, because otherwise the passage of the Bill on Report will get more and more difficult.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I invite the noble Lord to look at proposed new subsection (4D) because, with the greatest of respect, it is not correct to say that the policy would have to be “in accordance with” the Secretary of State’s guidance. The amendment says only that they must “have regard to” the Secretary of State’s guidance. This is not nitpicking; there is a really important distinction in law between having to follow guidance and merely having to have regard to it. That is one of the reasons why I was asking the noble Lord, Lord Collins of Highbury, those questions.

Lord Shipley Portrait Lord Shipley (LD)
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I understand the noble Lord’s point. I am quoting from the Member’s explanatory statement which is part of Amendment 19 in the Third Marshalled List of Amendments.

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Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
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This has been an incredibly useful discussion and debate, but this is not a probing amendment. It is an attempt to bring two sides of the House together. I made it very clear in my opening remarks that we oppose the BDS campaigns we have seen. I do not accept them. They are very damaging. I think I made the point that they have sought to target Israel alone, hold it to different standards, question its right to exist—which is wrong—and equate the actions of the Israeli Government with Jewish people, in doing so creating the very hate that my noble friend raised.

To be honest, I feel as if I am in a Catch-22 situation. On the one hand, the noble Baroness, Lady Noakes, says that there are loopholes, but this is not a restrictive, confined piece of legislation, dealing with BDS campaigns specifically. It has much wider implications. Everyone keeps talking about public bodies making foreign policy. No one questions the right of the Government to make foreign policy. The Government’s duty is to speak for the whole country on foreign policy —no one doubts that—but the Government have placed a duty on public bodies to have ethical human rights considerations in their investment and procurement policies.

We will come on to it in other groups, and I know we keep raising these things, but the sad thing is that the Bill damages our foreign policy. It will implicate us in undermining the very resolutions that we have tabled and supported at the United Nations. That is why we are so concerned, and that is why this amendment, far from giving public bodies the responsibility to decide on foreign policy, agrees with this Government when they speak about—I will quote again, because I think it is really important—

“belief that the promotion of business, and the respect for human rights, go hand in hand”.

When it comes to the statement that a Secretary of State may produce as guidance, is it that public bodies “will have” or “must have” regard to it? I have had many debates on previous legislation about what that might mean, particularly over codes of practice, as the noble Baroness knows, so I am happy to enter into legal dialogue about what that means. It is not unusual to require public bodies to follow that sort of guidance, and we can come up with words for that.

The noble Lord, Lord Wolfson, asked questions about the Occupied Territories. We have an existing policy on the Occupied Territories, so if a public body says it will not invest in the Occupied Territories, that is in accordance with the guidance issued by this Government. If it says it is going to ban any investment in Israel, that would be in breach of the code or whatever guidance, because we are against singling out Israel.

Somebody mentioned gay rights. I have been a campaigner for global gay rights for many years, and one of the things I have resisted doing is advocating blanket boycotts because I know that, where we have investment and contacts, the leverage, guidance and engagement we can have can make a big difference. We have changed people’s attitudes through that. The problem with blanket boycotts is that they have the complete opposite effect.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I am grateful to the noble Lord for, I think, giving an answer to my question. My understanding, therefore, is that the answer to my question is yes. The public authority could make the distinction that I identified. In other words, under this amendment a public authority could refuse to trade with Israel on human rights grounds but could none the less trade with Saudi Arabia. That would, as I understand it, be the consequence of the argument. Have I understood correctly?

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
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No, the noble Lord is not right. That is not what I said. We have guidance about specific investment in the Occupied Territories. That is what the Government issue now. Why is that so confusing?

Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Wolfson of Tredegar Excerpts
Tuesday 7th May 2024

(2 weeks, 2 days ago)

Lords Chamber
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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, it is a pleasure to follow that speech, although I respectfully point out that groups such as Diaspora Alliance hold the same sway and weight in the Jewish community as, for example, Gays for Trump would in the homosexual community in America. You can always find a Jew or Jewish group who will say whatever you want; going back to the Talmud, we are a disputatious people. I would gently warn noble Lords against picking people in the Jewish community who happen to agree with what they say. The two main communal bodies, the Board of Deputies of British Jews and the Jewish Leadership Council have been forthright in support of the Bill.

Let me turn to Clause 3(7), which is what this amendment focuses on. As we know, the way in which the Bill works is that unless a country is added to the Schedule by the Secretary of State, a public body cannot discriminate against it on essentially political grounds—I paraphrase. Clause 3(7) provides more procedural protection to Israel and to the territories listed in it because its effect is that a future Secretary of State cannot add Israel or those territories to the Schedule—that can be done only by way of primary legislation, as the noble Baroness just pointed out.

The purpose of this amendment is obvious although I note that, perhaps wisely, its proposers were neither able nor willing to say so in terms in a Member’s explanatory statement. Its purpose is to strip Israel of that procedural protection to make it easier procedurally, and therefore also politically, for a future Secretary of State to give a green light to a boycott of Israel. That, in terms, is what this amendment is designed to do and what, if it became part of the Bill, it would do.

Two main arguments have been made in support of removing Clause 3(7) from the Bill—let me say a word or two about each. The first is that Clause 3(7) does not distinguish between Israel and the Occupied Palestinian Territories, as it is said the UK is required to do. There are two points in relation to that: first, what is the source of this supposed obligation?

I referred in an earlier group to the opinion from Richard Hermer KC. I declare an interest: he is a friend, but the fact that he is will not stop me saying that I think he has got it hopelessly wrong on this point. His opinion says that there is a

“wider international law obligation on all states to ensure that impediments to Palestinian self-determination are brought to an end”.

To support that proposition, he cites the 2004 ICJ advisory opinion on the separation wall. That, of course, is an advisory opinion and, in terms, is limited to the separation wall itself, which the ICJ refers to as an “impediment” to Palestinian self-determination

“resulting from the construction of the wall”.

We could mount a very good argument, and I would, that it is the construction of that wall which advances Palestinian self-determination because without it, there would still be suicide bombings and people blown up on buses and in cafes, but let us put that to one side.

Lord Hannay of Chiswick Portrait Lord Hannay of Chiswick (CB)
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I just want to correct the noble Lord. The judgment did not say that the wall was illegal; it said that it was placed illegally because it was placed in the Occupied Territories, not on the boundary between the State of Israel and the Occupied Territories.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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That is not the point I was making, but the noble Lord is absolutely right. My point was whether there is in that judgment some sort of obligation on us not to impede the construction of a Palestinian state. However, the noble Lord is absolutely right in his characterisation of that part of the advisory opinion.

The only obligation the judgment refers to, therefore, is an obligation not to recognise the Occupied Palestinian Territories as part of Israel. That is in the advisory opinion as an obligation. UK government policy does not do so, and this Bill does not do so either.

Then we look at the other supposed source of this obligation: UN Security Council Resolution 2334, mentioned by the noble Lord, Lord Warner, in moving the amendment. That goes no further. That, in paragraph 5, “calls on states”. Let us just be clear: that is not an international law obligation. With the greatest respect to the noble Baroness, Lady Bennett of Manor Castle, who characterised that as a UK commitment, it is not. As other noble Lords will know much better than I do, the use of words such as “requires,” “obliges” and “calls on” are important distinctions—we will come later to what distinctions are—in UN Security Council resolutions. In any event, that only “calls on states” to distinguish between Israel and the Occupied Palestinian Territories, and not to lump them together.

Secondly, in so far as there is any legal obligation, which there is not, it would only be one to distinguish between Israel and the Occupied Palestinian Territories. Clause 3(7) does that. It does distinguish: you distinguish between things by treating them distinctly. You do not need to treat them differently. Those are two distinct, or different, things. This Bill is therefore entirely consistent with UK government policy and with UN Security Council Resolution 2334. That is a complete answer to the first point.

Let me go to the second point, which is the question about why Israel is treated differently. That is the main question underlying much of the debate on this clause. I have already explained that the differential treatment is procedural and not substantive; so why, asked the noble Lord, Lord Warner, in moving his amendment, is Israel treated differently in this Bill? I answered that question in my speech at Second Reading. The short answer—and I will not repeat it—is that Israel is constantly subjected to differential and discriminatory treatment, both by international bodies such as the UN and its rather unhappily named Human Rights Council, on which sit some of the world’s biggest abusers of human rights, and by some public authorities in this country. However, as the noble Lord, Lord Warner, has asked the question about why Israel is treated differently, let me answer it by reference to his oral contributions in your Lordships’ House.

Over the past 10 years, the noble Lord has—and I have benefited from them—contributed to many debates on many topics in your Lordships’ House. I thought I would have a look at some of his contributions relating to some of the countries set out in the list from the noble Lord, Lord Hain, in his Amendment 49. I know he is now no longer going to move that amendment, but it is a useful list because it sets out those countries that have poor, or worse, human rights records.

On the basis of my researches in Hansard, the current position is as follows. I am not going to go through them all, but here are some. The number of times in the last 10 years that the noble Lord, Lord Warner, has referred to Saudi Arabia is zero; Yemen, zero; Myanmar, zero; Sudan, zero; the Uighurs, zero; North Korea, zero; Congo, zero; Venezuela, zero; Iran, zero; China, one, in the context of a speech on the West Bank; Syria, one, in the context of a speech on Gaza; Ukraine, one, to ask why we do not treat Israel the same way we treat Russia; Israel and Palestine—nine.

Lord Warner Portrait Lord Warner (CB)
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I am a great believer in only talking about things you understand and have observed. What I have done is go very often to Gaza and the Occupied Territories and talk to some of the people who have been trying to intervene to help the cause of an independent Palestinian state. That has caused me to actually come back rather horrified as to what I have seen about the way the Israelis have treated some Palestinians. There has been a prolonged occupation of territory by successive Israeli Governments— territory that was won by war and is illegal internationally. There have been untold numbers of allegations of breaches of international law by the occupying forces of Israel, so all I have done in my humble way is to report these to His Majesty’s Government as part of cross-party groups that have been to those countries.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, all I am doing is highlighting that, when it comes to gross breaches of human rights around the world, Israel is treated differently, both in the manner that I have described and, if I may say so respectfully, by the noble Lord in his contributions to this House. When people stop treating Israel differently, Clause 3(7) will not be needed, but until then it is a necessary and essential part of this Bill.

I am disappointed to see His Majesty’s Opposition supporting the amendment. I echo the comments of my noble friend Lord Leigh about the regard that many of us have—certainly I do personally—for the noble Lord, Lord Collins of Highbury. He will understand that, when I say I am disappointed at the Opposition’s stance, I am not making a personal comment, but I am disappointed at the substantive position that they are taking.

Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
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The noble Lord knows that I listen attentively to what he says. Earlier he said that the Occupied Palestinian Territories were being afforded a protection under the Bill. He is aware that existing trading and investment relations are covered by a UK-Palestinian Authority bilateral agreement. Is he aware that the Palestinian Authority has asked for this protection?

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I am looking at the time. I am happy to continue this conversation elsewhere, but I will say this: I would be happy if Clause 3(7) encompassed not only Israel and the Occupied Palestinian Territories but the Palestinian Authority, because I do not want anybody using divestment or boycotts as a lever in the Middle East. We should all be working for peace, and we do not work for peace through BDS. I hope that the Opposition will reconsider their position but, in the meantime and with apologies to the House for overstaying my welcome a little, I support the Bill as drafted and therefore oppose the noble Lord’s amendment.

Baroness Altmann Portrait Baroness Altmann (Con)
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My Lords, I support the remarks of my noble friends Lady Noakes, Lord Leigh and Lord Wolfson. This amendment would be deleterious to the Palestinians themselves. I cite the example of SodaStream, which had to close down its factory in the Occupied Territories at a loss of 600 Palestinian jobs because of the BDS movement; it was a particular factor. I shall quote two people who worked there. Ali Jafar, a shift manager from a West Bank village, said:

“All the people who wanted to close”


it

“are mistaken … They didn’t take into consideration the families”.

Anas Abdul Wadud Ghayth, who had worked there for four years, said, as he wiped tears:

“We were one family. I am sad because I am leaving my friends who have worked here for a long time”.


I am not in favour of settlements. I certainly believe that Israel has offered many times, and would offer again, to get out of territory that is currently occupied in exchange for a genuine peace deal. It has tried and would try again. Currently, there is perhaps a different mindset among those leading the country, but that is not necessarily permanent. At the moment, these territories are part of Israel. They are not necessarily permanently part of Israel, and I believe that they would ultimately be given up or exchanged in return for a genuine peace deal.

Currently, however, it is occupying them and providing jobs for Palestinian people who want them and could not find gainful employment otherwise. That was confirmed when, for example, the SodaStream factory shut down. From a security perspective, if Israel were to give back to the Golan Heights, it would be signing its own death warrant. You will know that if you have been to that area and seen what is there. Equally, with the Occupied Territories on the West Bank, I believe there is potential for a two-state solution that recognises both sides’ right to exist, but Israel needs a partner that is willing to recognise its own right to exist. This Bill is designed to protect, in the meantime, both Israel and the jobs being created in those territories.

However, like my noble friends, I have the most enormous respect for the noble Lord, Lord Collins, who I think genuinely wants to find a way to work through this and a wording that will let us deal with this issue in a way that is acceptable to all sides. I have no problem with that, and I hope we might have some meeting of minds, through which we can move forwards and try to achieve the aims of the Bill without offending noble Lords, on all sides. I have enormous respect for the noble Lord, Lord Warner, as well, who I have worked with in the past. Whether or not we agree on this issue, I hope that noble Lords can see the points I am trying to make about the things I believe the Government are trying to achieve.

Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Wolfson of Tredegar Excerpts
Wednesday 17th April 2024

(1 month ago)

Lords Chamber
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Baroness Blackstone Portrait Baroness Blackstone (Lab)
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My Lords, can I ask the Minister whether it is the intention of this Bill to stop disinvestment in oil and gas companies associated with a particular country or territory?

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I will do something very controversial and invite the Committee to look at the terms of the amendment, coupled with the terms of the Bill. The speech of the noble Lord, Lord Hain, in introducing the amendment, rather oddly for an environmental-based amendment, seemed not to see the wood for the trees, but it paid very little attention to the actual terms of the Bill, so perhaps we could do that; I know this is controversial.

Let us start with the amendment, which seeks to prevent a future Secretary of State amending the Schedule, by way of regulations, to remove environmental misconduct. The predicate for that amendment must be that, as drafted, the Secretary of State does have the power, by way of regulation, to remove environmental misconduct from the Schedule, so let us look at Clause 3(2) to see what this Secretary of State can actually do. By way of regulation, under Clause 3(2)(a), he or she can

“add a description of decision to Part 1”.

That is not relevant because we are not dealing with Part 1 and we are not dealing with decisions. He or she can

“add a description of consideration to Part 2”.

That is also irrelevant because we are not dealing with adding anything; we are dealing with taking away, are we not? So let us look at Clause 3(2)(c): he or she could add

“or remove a description of decision or consideration”,

but only

“added under previous regulations under this subsection”.

What that means is that if Secretary of State A adds a new consideration—let us call it the Wolfson consideration —Secretary of State B can later remove the Wolfson consideration, but the Secretary of State cannot remove what is already there because that has not been added by way of a previous regulation.

Therefore, this amendment is wholly unnecessary, as was the speech of the noble Lord, Lord Hain. I do not know whether the noble Lord knows the point I have made but it is correct. I hope he will now withdraw the amendment and not bring it back, and certainly, if I may say with respect, not use a very technical amendment to this Bill to make points that are both factually and materially erroneous.

For present purposes, I stand by the legal point I have made as to the construction of the Bill. This amendment is wholly unnecessary because the predicate to it—that the Secretary of State could remove environmental regulation—is entirely misplaced.

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Lord Hain Portrait Lord Hain (Lab)
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I am happy to be interrupted on that point.

My point to the noble Lord, and to the whole House, is that this Bill is technically flawed. I refer to the explanatory statement that I put on the face of my amendment:

“This amendment seeks to ensure that the Secretary of State cannot remove environmental misconduct as an exception in the Schedule by regulations”—


in other words, by executive decision. This should not be possible, and it should remain in primary legislation. That was the purpose of my amendment.

That brings me on to what the noble Lord, Lord Wolfson, argued. He—and I commend him for this—technically disputed the basis for my amendment, which he is entitled to do. I disagree with his interpretation, and I do ask the noble Lord to reflect on this: what was factually erroneous about what I said in terms of the case I put on environmental destruction in Gaza and the West Bank?

The noble Baroness, Lady Altmann, for whom I have a great deal of respect and count as a friend, pointed out that Israel has planted a considerable number of trees, for which I commend Israel. My point is that there is terrible environmental destruction in Gaza and the West Bank now. Nobody can dispute that, and it has been going on for a long time, including the destruction and poisoning of the water supply for many Palestinian residents there.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I did not introduce a technical problem with his amendment. I sought to explain to the Committee, and to him, that the basis of his amendment—that is, that the Secretary of State could by regulation remove this exemption—was entirely flawed. Having mentioned this in passing as a technical response, he has now gone back to his favourite subject of attacking Israel. Is he going to provide a response to the fundamental problem that I raised with his amendment?

Lord Hain Portrait Lord Hain (Lab)
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I have already done that. On what he calls my favourite hobby of attacking Israel, as it happens, as I said in the foreign affairs debate, the whole strategy for resolving this terrible dispute is fundamentally flawed. The lessons should be learned from the Northern Ireland experience. Hamas will not be defeated militarily, however much I would like it to be. I made it clear that I am a friend of Israelis as well as Palestinians, but we are not revisiting all of that. On the criticisms, apart from the noble Lord’s criticism of the case that I have made, I invite people to engage on the substance, rather than bringing in arguments that I have never made in order to adopt a kind of diversionary tactic on this.

To conclude, the Bill is flawed and the Minister, speaking for the Government, should look again at this matter. If there is an issue with the wording of my amendment, then we can discuss that. Unless that is done, people will interpret the Government’s stance as showing that environmental protection is not being given the priority under the Bill that it should. Having said that, I beg leave to withdraw the amendment.

Lord Mann Portrait Lord Mann (Non-Afl)
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My Lords, I have an entry in the register of interests. I seek clarity from the Minister. I may not need it, but I would like to tease it out, to see whether my interpretation of these clauses is correct. My question is about the word “decision”, and what the statutory understanding of that word is. My understanding is clarified by Clause 2(2), which says:

“A ‘procurement decision’ is a decision about a contract for the supply of goods, services or works to the decision-maker.”


That seems to me absolutely clear. I want to clarify if that is also the Minister’s understanding of what a decision in this context is.

I ask that because of an example from the University of Essex student union, which has a policy passed 15 or 16 years ago, described as a BDS policy, which is specifically targeted against the state of Israel. On the student union website that policy is deemed to be an educational policy to stimulate discussion and debate. But the student union, in applying the policy, has chosen specifically to address the purchasing of kosher food products, including those from Israel, in the student union shop.

In the context of the amendments, and in terms of how the general public might understand this, as well as those more directly impacted in the public sector and elsewhere, it would be helpful to know whether I am right in my understanding that the University of Essex student union policy, which has not been turned into a procurement decision, as defined in Clause 2(2), would not be covered by the Bill, because it is merely an educational policy, as opposed to a procurement and economic activity decision. To know that would be helpful in understanding what the scope of the Bill is and is not, and what the legal situation will be when it is enacted, as I presume it will be.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I spoke on Second Reading, and I am grateful to my noble friend Lord Deben for taking the trouble to read my speech. I wait with anticipation to find out the, no doubt very few, points on which we disagree. That will perhaps be for another day, but I look forward to it.

On these amendments I can be brief, because the central point has already been made: that the proposed amendments, especially those in the name of the noble Lord, Lord Wallace of Saltaire, would add complexity and increase the likelihood of litigation; I declare the obvious interest in that respect. The amendments would therefore make the Bill not more precise but less.

I say that for three reasons. First, introducing words such as “primary or sole” is an invitation to litigation. My second short point—forgive the legal geekiness, but we are in Committee—is that a quick search of legislation.gov.uk indicates that that phrase does not appear anywhere else in legislation. “Sole or primary” does, so in case we go forward with this, I would invite the noble Lord to flip it round, so that we put the more general word “sole” first, followed by the word “primary”. That is not my main point, but as we are in Committee, which is the place for geeky legal points, I may have just made one.

Another amendment introduces the word “material”. That is a really problematic word in law, as are words such as “significant”, because we always have the debate about what the opposite of “material” is. Is it immaterial—that is, de minimis? In that case, that is not really, as I understand it, the force of the amendment. “Material” here really means “of substance”, and it is, I suggest, not a good word to use if one is seeking to get that point across.

However, my main point is that this part of the Bill is drafted clearly and that whether we add “primary or sole” or “material”, that would add complexity and invite more litigation.

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
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I was going to intervene on the noble Lord, but he finished his speech before I could. Maybe we will have an opportunity when the Minister responds to the debate, because the idea that the words “moral” and “political” are not vague stuns me. Who is to define “moral”? That is very difficult.

This is one of the rare occasions in the House when I can honestly agree with practically all the words of the noble Baroness, Lady Fox. I also agree with the words of the noble Lord, Lord Deben. I want to stress that with the amendments, especially those to Clause 1, it is necessary to probe what the words mean, and get a better understanding of them. Even if I do not personally feel committed to the amendments, it is important to use this stage to elicit from the Minister a better understanding of the intent of Clause 1.

I do not want to repeat what the noble Baroness said, but this is not about how we address BDS strategies. The impact of the clause is far wider and encompasses a whole host of things that the Government may not have really intended. Who knows? Clause 1 does not define “political” or “moral”. It is extremely wide-ranging and could cover any decision or consideration that suggests a negative view of an existing, previous or potential policy action or inaction, or other behaviour associated with a Government or any public authority in another country.

As the noble Lord, Lord Palmer of Childs Hill, said, the reasonable observer of the decision-making process test sets an extremely low bar for considering whether a decision was influenced by political or moral disapproval. It does not distinguish between minor or significant influence, and it does not clearly define a reasonable observer. I hope we can use the amendments in this group to probe substantially on these issues.

I say to the noble Baroness, Lady Noakes, that the consideration of financial, reputational, legal, environmental, social, governance and other risks in procurement and investment decisions are often complex and overlapping, and some considerations may be confidential. How are we going to sort all those things out if the Bill becomes law?

The legislation does not require the reasonable person to be someone who is familiar with the subject matter and decision-making processes. Clause 1(4) and 1(6) do not define a public authority in a foreign territory, so it could include state-run companies in some countries. This could result in additional uncertainty where the conduct of a public authority differs from the official policy of a foreign state, and that is a threat to actions in support of persecuted people across the world.

The sweeping approach to Clause 1 will undoubtedly have a chilling effect on public bodies being able to make ethical procurement and investment decisions and take actions that support upholding international law, democracy and human rights. I know I have an amendment later on, so I will not go into too much detail now.

As I mentioned at Second Reading, the Bill is incoherent and it waters down the Procurement Act 2023. That Act sets key objectives covered by procurement, including supporting public benefit, in Clause 12(1)(b), and acting and being seen to act with integrity, in Clause 12(1)(d). The Act also gave a mandate to commissioning authorities to award contracts based on the “most advantageous tender” submitted. That change of words moves away from the previous priority of the “most economically advantageous tender” under which the previous procurement regime existed. What was the intent of that change in language? The intent was to enable contracting authorities to give more weight to award criteria such as decent work and wider social values. Again, we are coming to other amendments, particularly about the environment.

This wide definition, which is covered in Clause 1, is the fundamental problem with the Bill. The Explanatory Notes state:

“Clause 1 prohibits relevant public authorities from having regard to a territorial consideration in a way that indicates moral or political disapproval of a country or territory’s foreign state conduct, when making decisions … This clause is designed to catch both open participation in boycotts”,


which the noble Baroness, Lady Fox, talked about,

“or divestment campaigns, and more subtle ways of singling out countries or territories that could produce similar results”.

As I say, this sweeping approach will have a chilling effect and will impact on public authorities in upholding international law.

A point I want to focus on is that the UK Government have committed to implementing international standards, including the UN guiding principles on business and human rights—the UNGPs—as well as the commitment made in terms of the environment in the Paris agreement. Carrying out effective due diligence is central to public bodies, as state institutions, being able to fulfil their human rights obligations, implement UNGPs and make ethical procurement and investment decisions. However, because the terminology, such as “political and moral disapproval”, is undefined, this will create problems for public authorities when carrying out their due diligence. That is what will be needed in the due diligence process to avoid falling foul of this legislation, when clarity is so lacking.

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Lord Johnson of Marylebone Portrait Lord Johnson of Marylebone (Con)
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My Lords, while I am sympathetic to the intentions of Amendment 8, tabled by the noble Lord, Lord Mann, I wonder if it is ultimately going to be necessary, given that the Higher Education and Research Act 2017 gives the Office for Students powers to take action whenever an institution is in breach of the public interest principles it is required to uphold.

One of those principles relates specifically to academic freedom and the issues to which the noble Lord was referring with respect to Israel. All academic staff at an English higher education provider have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing the jobs or privileges they may have at that provider. I think that essentially covers the points he was making in respect of academics being prevented from pursuing partnerships or research with universities in Israel or with Israeli academics. We have these provisions in law and the Office for Students has all the powers at its disposal to enforce them. So I am not sure that Amendment 8 is entirely necessary, although I understand why he tabled it.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I associate myself with the words of my noble friend Lord Pickles about the work done over many years by the noble Lord, Lord Mann, for the Government in an unpaid capacity. That work is well regarded and very much appreciated in the Jewish community and, I am sure, well beyond it too.

Turning to Amendment 9, while I understand its focus and purpose, I am not sure that it is necessary in the Bill. In particular, although this is not my area of law, I wonder whether the thrust of the amendment would not actually be covered by existing provisions under the Equality Act. I do not know whether the Minister or her department has thought of that, but, if this were to go forward, that might be another way of dealing with this issue.

On a narrower point, the amendment is also widely drawn. It would seem to cover, for example, a decision to use one halal supplier or one kosher supplier rather than a different halal or kosher supplier. I think that cannot be within the intention of the amendment, although I think it would be caught by it.

I am conscious of the time, but I will end on a slightly different point. The focus of this amendment is that food is sometimes used to drive a wedge between communities. This might be a strange thing for me to say, but I want to pay tribute to Zarah Sultana MP, with whom I probably agree on absolutely nothing but who, with Charlotte Nichols MP, ran a long-standing campaign in Parliament to have kosher and halal food available here. They found a supplier called 1070, which has both kosher and halal certification to provide that food. As a result, I have had conversations over food with people who I might not otherwise have had those conversations with and I found those discussions extremely helpful. I use this, probably very wrongly, to suggest to the authorities that this kosher and halal food be continued, so that we can not only eat together but discuss and speak together as well.

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
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My Lords, I too associate myself with the comments of the noble Lord, Lord Pickles, because the noble Lord, Lord Mann, has done incredibly important work in tackling anti-Semitism and ensuring that we remove it from all of our civil life. I pay tribute to him.

I will not delay the House too long, but the important thing with these two amendments is expectations. This is the problem with the Bill. While I want to avoid going back, we have made a plea—my noble friend Lady Chapman made it at Second Reading—that we want to co-operate with the Government to implement their manifesto commitment. I am afraid that this Bill goes well beyond that and brings into question other issues.

The noble Lord, Lord Mann, is absolutely right to put these sorts of amendments down, because they address the concerns of the community. People often think when we are talking about this Bill that we are talking about consumer boycotts and consumer choice. No, we are not. It is about decisions over investment and procurement, but those decisions can involve the sorts of things that the noble Lord, Lord Mann, is talking about—and we heard an example from the noble Lord just now.

How we manage expectations is really important. I suspect that, when we go into other groups, we will hear lots of concerns about issues that go well beyond the scope of the Bill. So I hope the Minister understands why the noble Lord, Lord Mann, has put these amendments in. They are to probe, but also to say that there is a problem, there is an issue and the Bill does not solve it.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, it is always a pleasure to follow the noble Baroness, Lady Kennedy of The Shaws, even, or perhaps especially, when we disagree.

I want to focus on Clause 3(7), which provides in effect that a future Minister seeking to permit public bodies to boycott Israel would have to do so by way of primary legislation and not secondary legislation. The question has been asked: why is Israel treated differently by being singled out in the Bill? The short answer is that Israel is already treated differently and singled out—by international institutions and by too many public bodies here in the UK. That differential treatment and singling out has real effects, not only on the State of Israel but—and this is my focus—on civil society in the UK.

This Bill puts Israel into a special category because Israel is put by others, both internationally and nationally, into a special category. I will look first at this internationally. Last year, the United Nations General Assembly condemned Israel 14 times. The rest of the world put together: seven. Since 2015, the score stands at Israel 140, the whole of the rest of the world put together, 68. The UN Human Rights Council has a standing agenda item, item 7, which is focused on Israel —and only on Israel. This is the same UN Human Rights Council that, just two days after the 7 October massacre, held a minute’s silence to mourn, to quote from its own website,

“the loss of innocent lives in the occupied Palestinian territory and elsewhere”.

“Elsewhere”? For 2,000 years, the Jewish people had nowhere. Now, according to the United Nations Human Rights Council, they have an “elsewhere”. All of this is not because Israel is wicked, let alone uniquely wicked. It is because, internationally, Israel is treated differently and singled out.

Secondly, Israel is also treated differently and singled out by public bodies here in the UK. In 2020, the Welsh Government brought out a new national procurement note singling out Israel—and only Israel—for potential sanctions. A decade earlier, West Dunbartonshire Council adopted a policy of boycotting Israeli—and only Israeli—goods, including even books printed in Israel. So the sermons of Jesus printed in totalitarian China were permitted, but they were banned if they were printed in the place where he actually delivered them.

A number of English councils implemented BDS against Israeli—and only Israeli—products, including Leicester in 2014 and Lancaster in 2021. In 2014, Birmingham City Council threatened not to renew a contract with Veolia because of its activity in the West Bank. Perhaps the now insolvent Birmingham City Council should have focused rather less on the West Bank and more on its own bank.

My third point is that it is not only the fact that Israel is treated differently. Anti-Israel resolutions and boycotts have a different and dramatic effect on civil society. The correlation is clear and unambiguous. When Israel is targeted, it ends up with attacks on Jews. I am not saying that all anti-Zionism is anti-Semitism—although a lot of it is, especially when Israel, and only Israel, is singled out for condemnation and boycott. You can support Israel but oppose its present Government, as do many of my friends in Israel. The Opposition Benches in this House demonstrate that you can critique a Government but support the state.

But let us be clear: when you chant “From the river to the sea”, you are not critiquing the Israeli Government; you are calling for the destruction of Israel. We are increasingly seeing anti-Israel rhetoric blurring into demonising and attacking Jews. “Zionists” is being used as a code word for Jews.

It is a code word, because who are these Zionists? The overwhelming majority of Jews, both in the UK and around the world, are Zionists because of our history, ancient and modern. We have prayed for, and facing, the land of Israel for thousands of years. We know the cost in Jewish lives from not having a State of Israel and the price paid in lives for having that state. Many of us have family there, in what is now the world’s largest Jewish community. When Israel is singled out, the inevitable effect is that Jews, regardless of their passports or politics, are also singled out in commerce, culture and education.

In commerce, when Sainsbury’s removed kosher food from its shelves after giving in to anti-Israel protesters, it was Jews who could not buy food—a scene repeated in the Republic of Ireland only last week.

In culture, two weeks ago, a Jewish member of the audience at the Soho Theatre was sworn at by Paul Currie, an anti-Semite masquerading as a comic, because he would not stand in respect when a Palestinian flag was unveiled on stage. Much of the rest of the audience joined in the chanting against him. Another London theatre cancelled an event hosted by a UK Jewish charity raising money for Israeli students, because the staff refused to come into work.

In education, the Jewish chaplain at Leeds University is now in hiding with his family, because he has been targeted by protesters, who also daubed anti-Israel slogans on the Jewish society building. When students marched through Birmingham University with a banner reading “Zionists off our campus”, what they meant, in practice, was “No Jews here”. The vast majority of Jewish students, like the overwhelming majority of the Jewish community, believe in an independent Jewish state. That is what Zionism is. If, like His Majesty’s Government, you support a two-state solution, which calls for a safe and secure Israel alongside a Palestinian state, you are a Zionist too.

All this is a problem for Jews, but it is a tragedy for everyone else. A society that permits anti-Semitism is a society suffering from a terminal illness. That is an iron rule of history: anti-Semitism destroys any society that harbours it.

Baroness Kennedy of Shaws Portrait Baroness Kennedy of The Shaws (Lab)
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I just want to read the noble Lord a quotation from the Israeli National Security Minister, Itamar Ben-Gvir. He says that to encourage the exodus of Gaza’s inhabitants and the influx of Israeli settlers to the Gaza Strip would be a “correct, just, moral … solution”. When it comes to people speaking in language that is exclusionary and discriminatory against the other side, I am afraid that some of it comes very strongly from extreme right-wing Jewish settlers.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I loathe Itamar Ben-Gvir and his rhetoric and want to see that sort of rhetoric out of Israel and out of everywhere. But let us be real: when people opposed apartheid, they were opposing a policy of the South African Government. What BDS wants is not to change the policy of Israel, but to change the existence of Israel by destroying it.

The Bill singles out Israel because Israel is always singled out. It is quite right, therefore, that, if a future Minister wants to change that policy to allow people to boycott Israel and give succour to the world’s oldest hatred, he or she should have to account for their actions at the Dispatch Box.

I have no doubt that improvements can be made to the Bill. I look forward to working with many others in doing so, especially on the international law point, but, for the reasons that I have given, I give the Bill my full support.

Standards of Behaviour and Honesty in Political Life

Lord Wolfson of Tredegar Excerpts
Thursday 23rd June 2022

(1 year, 11 months ago)

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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I am grateful to the noble Lord, Lord Morse, for introducing this debate about standards of behaviour and honesty in political life. It is a pleasure to follow someone who has worked so hard to maintain those standards in public life. However, I note that, in the terms of the Motion, we are talking about political life and not public life. That seems to me correct. We do not, and cannot reasonably, expect from our politicians the standards of behaviour we would expect from, for example, our faith leaders. I am not a faith leader, nor do I really consider myself a politician. I am a lawyer, and it is from that vantage point that I approach this important topic.

One of the fundamental principles that underpins standards of behaviour and honesty in political life is that of the rule of law. Noble Lords may be aware of a letter I sent to my right honourable friend the Prime Minister earlier this year on this topic, which gained, let me say, some degree of publicity. In that letter, I noted that the rule of law means that everyone in the state, and the state itself, is subject to the rule of law. This is an ancient principle; it appears not only in the work of Dicey in the 19th century and Locke in the 17th century, but even as far back as the writings of Aristotle, who wrote:

“It is more proper that law should govern, than any one of the citizens”.


Although the rule of law is therefore a central feature of our constitution and plays an essential role in maintaining the highest standards of behaviour and honesty in political life, noble Lords may be surprised to learn that the judicial oath does not refer to the rule of law at all. Judges swear

“to do right by all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”,

but there is no reference to the rule of law itself. In fact, that is not really surprising, because the rule of law is not a law but a constitutional principle. I suggest, given the terms of this debate, that it is a principle that underpins high standards of behaviour and honesty in political life.

While judges do not take an oath which refers to the rule of law, there is someone who does, and that is the Lord Chancellor. I should state clearly that what I am about to say is said from a position of principle, and is not directed at any individual Lord Chancellor, let alone the current officeholder. I worked closely with Sir Robert Buckland, the previous Lord Chancellor, and the Deputy Prime Minister, who now holds the office. Both are lawyers for whom I have a great deal of respect. My focus is on the position of Lord Chancellor and our current constitutional settlement.

The Lord Chancellor takes an oath with three distinct parts. The first references respect for the rule of law; the second underpins the independence of the judiciary; and the third deals with the provision of resources for the efficient and effective support of the courts. Those three parts are of course interlinked. The rule of law becomes fragile to the point of invisibility if the independence of the judiciary is not respected and, when necessary, defended—and that may mean defended in public and in unambiguous terms. The rule of law will become mere words without any content if the resources made available are inadequate to enable the courts to fulfil their function.

A lot changed with the Constitutional Reform Act 2005, which declared in Section 1 that nothing in the Act adversely affected the existing constitutional principle of the rule of law. So far as constitutional theory is concerned, I am prepared to accept that. But I regret that the same Act, which denuded the position of Lord Chancellor of significant parts of its historic and political authority, did adversely affect the practical and day-to-day implementation of the principle of the rule of law. I do not want to tread on the toes of the Constitution Committee, which is looking at the position of the Lord Chancellor and the law officers. Suffice it to say, as the committee puts it on its own website, the 2005 Act “fundamentally altered” the role of the Lord Chancellor—and, I would suggest, not for the better.

Historically, the Lord Chancellor wore three hats: he was the head of the judiciary and presided over the appellate committee of this House, which was the Supreme Court until it crossed Parliament Square. He was a member of the Cabinet, and headed a department dealing with the courts, legal aid and constitutional affairs. He was also a Member of this House, and sat, if I may put this somewhat anachronistically, as the Speaker. I am prepared to accept that reform was needed. In this day and age, I do not think you can really have a member of the Cabinet as a sitting judge. But it is undeniable that the reforms in the 2005 Act led to a diminution in the role of Lord Chancellor. The creation of the role of Justice Secretary two years later, in 2007, while understandable, further undermined that office. This is compounded by the statutory requirements for the person who holds the position of Lord Chancellor, who need not be a lawyer at all, never mind a senior lawyer.

The undeniable consequence, it seems, is that the role of Lord Chancellor has changed from being an office which would conclude a career—a destination job, if I may put it that way, or a grand terminus—to being little more than an intermediate station stop, a resting point before the political journey continues on to greater things. I do not suggest that we can return to the status quo ante. That metaphorical train, unlike many real trains today, has left the station. But I do not think that we have gained from a system in which you can be Lord Chancellor on Monday, but then be promoted—and it will be seen by many as a promotion—to be Secretary of State at Defra or DCMS on Wednesday. I have nothing against Defra or DCMS, but the fact is that the Secretary of State at neither department takes an oath to respect the rule of law, and it is the rule of law which underpins standards of honesty and behaviour in public life.

I would like us to consider returning to a system in which the Lord Chancellor is again one of the great things in our constitutional settlement. The role could encompass responsibility for the rule of law, the judiciary, our constitutional settlement, devolution, human right and international law—all things, in other words, which are part of the rule of law in its broadest sense and underpin our constitution. An enhanced and reinvigorated role for the Lord Chancellor would for those reasons be a helpful and important step in maintaining what we all want: the very highest standards of behaviour and honesty in political life.