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

Alex Norris Excerpts

Committee stage
Thursday 14th September 2023 Public Bill Committees

Division 20

Ayes: 2

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Scottish National Party: 2

Noes: 9

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Conservative: 9

[Alex Norris (Nottingham North) (Lab/Co-op)]

I beg to move amendment 10, in clause 7, page 5, line 32, leave out subsection (8).

This amendment removes provisions stipulating that providing information in compliance with an information notice does not breach obligations of confidence or other restrictions on disclosure.

It is a pleasure to see you in the Chair, Dame Caroline.

Clause 7 sets out the significant powers to compel information that will be made available to the enforcement authorities detailed in clause 6. As we have heard, the enforcement authority will most often be the Secretary of State. The provisions in clause 7 provide enforcement authorities with the power to prepare and issue an information notice to request from a relevant public body information relating to a decision in respect of the Bill. The enforcement authority—usually the Secretary of State, as I say—can request any information likely to be useful for it to assess whether the provisions of the Bill have been contravened or are likely to be contravened.

Provision is also made in respect of clause 4, the gagging clause. Clause 7 means that the enforcement authority can request information if it is satisfied that a public body subject to the Bill is about to publish, may publish or has already published a statement prohibited by the Bill. The most egregious provision is subsection (8), which provides:

“A person providing information in compliance with an information notice does not breach—

(a) any obligation of confidence owed by the person in respect of the information, or

(b) any other restriction on the disclosure of information (however imposed).”

“However imposed” is a challenging phrase. It seems to grant the Secretary of State or other relevant bodies the power to issue notices that would not only require all information to be handed over, but override normally protected duties of confidentiality, safeguarding or legal privilege. That is very significant. We would argue that those powers of investigation go beyond the powers of the security services to compel information. There is no clarity or sense of what checks and balances there are. Even the security services, which do not have that degree of power, have oversight mechanisms such as the Intelligence and Security Committee of Parliament. Frankly, this seems to be a very strong power to reserve to the Security of State or, indeed, the Office for Students.

We have heard evidence from multiple witnesses who are concerned about these provisions. We did hear from others who are less concerned, but even if colleagues consider the case I have set out to be wrong or overstated, the ambiguity is obvious. At the very least, the Bill is not clear enough. It is important to say that the Government do not—if I have understood properly what the Minister told the Committee last week—want the provisions to supersede legal privilege. That is welcome, and I am keen to have similar commitments regarding safeguarding duties. If that is the case, amendment 10 promotes that.

I believe that the Government ought to accept our amendment, or at least propose an alternative in lieu. What is in the Bill seems overbearing; if not overbearing, it is definitely unclear. That, at least, must be resolved.

[Felicity Buchan]

Amendment 10 would remove clause 7(8), which stipulates that providing information in compliance with an information notice does not breach obligations of confidence or other restrictions on disclosure.

The intention behind clause 7 is to provide a power for enforcement authorities to issue information notices to require information from a relevant public body relating to a decision in respect of the Bill. As drafted, the clause sets out a necessary and proportionate power for enforcement authorities properly to investigate potential breaches of the ban.

I must be clear that the clause does not place an undue burden on public bodies in scope of the ban. Information may be requested only if the enforcement authority is satisfied that a person has made or will make a decision or statement in breach of the Bill and that the information is likely to be useful for the enforcement authority’s investigation. Subsection (8) provides standard wording in order to give assurance to the person complying with the information notice that they will not be breaching an obligation of confidence or any other restriction on disclosure. The Bill is by no means unique in including such drafting; the same caveat is provided for in the Agriculture Act 2020, the Building Safety Act 2022 and the Health and Care Act 2022, for example.

The hon. Member for Nottingham North has said that he is concerned that the subsection would override the privilege between lawyer and client. I can reassure him that it does not. Legal professional privilege is a fundamental common-law right, including for those public bodies captured by the Bill, and specific words would not be needed to override it. The information power therefore does not extend to legally privileged material; I can confirm that I will clarify that point explicitly in the Bill’s explanatory notes. I would also add that Richard Hermer KC has subsequently clarified, in written evidence to the Committee on this point, his view that it is likely that a court would not deem legal professional privilege to be overridden by the clause.

Subsection (8) does not provide a right to extract the information, nor does it give a power to the Government; it simply provides the person who is disclosing information necessary to investigate a potential breach with protection against a claim for breach of confidence or any other restriction. I therefore ask the hon. Member to withdraw his amendment.

[Kim Leadbeater (Batley and Spen) (Lab)]

It is really important that legislation passed by the House be clear and unambiguous. As we have heard repeatedly in this Committee from a wide variety of sources, including witnesses who gave oral evidence and those who submitted written evidence, the Bill fails that test.

This subsection is another example of that. The open-ended reference to

“any other restriction on the disclosure of information”

makes no distinction, for example, between somebody expressing a view in a private and in a professional capacity. That cannot be right. Subsection (8) should be deleted.

[Alex Norris]

I am grateful to my hon. Friend the Member for Batley and Spen for her very effective contribution, with which I agree.

I hear what the Minister says about the intention behind the clause and about whether it is necessary and proportionate. I can probably agree with “necessary”, but there is still a divergence of views between us on “proportionate”. I also hear what the Minister says about commonality with other pieces of legislation. I am willing to accept that clause 7(8) is not a unique provision, but I do not think that that means that it is therefore the right provision. It could be badly drafted here and elsewhere too; that would not be without precedent.

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[The Chair]

With this it will be convenient to discuss the following:

Amendment 11, in clause 10, page 7, line 20, at end insert

“within 60 days of the passage of this Act.”

This amendment specifies that regulations prescribing a maximum monetary penalty must be made within 60 days of the Bill being passed

Amendment 12, in clause 10, page 7, line 21, leave out “may” and insert “must”.

This amendment, together with Amendment 13, would require the publication of regulations in matters to which the enforcement authority must, or must not, have regard in exercising its powers within 60 days of the passage of the Act.

Amendment 13, in clause 10, page 7, line 23, at end insert

“within 60 days of the passage of this Act.”

See explanatory statement to Amendment 12.

Clause 10 stand part.

[Alex Norris]

I rise to speak to amendments 11 to 13, which relate to clauses 9 and 10. Clause 10(1) states that:

“The Secretary of State must, by regulations, prescribe a maximum penalty for the purposes of section 9”.

Clause 9 states that an enforcement authority may impose a monetary penalty on someone if they do not comply with the provisions of the Bill. Similarly, clause 10(2) states that:

“The Secretary of State may, by regulations, make provision about matters to which the enforcement authority must, or must not, have regard in exercising its powers under section 9”,

which refers to the power to impose monetary penalties.

The regulations set by the Secretary of State will be highly consequential, because they will show how the sharper elements of the Bill, which we have already discussed, will interact with the rights and freedoms of individuals. They will outline the monetary penalty, but also what the enforcement authority—most often, the Secretary of State—will weigh in making a decision. As drafted the Bill does not specify when the Secretary of State must make these regulations and when they will take effect. That leaves a degree of ambiguity, and a gap where people will be waiting to see when the provisions start to bite.

The Minister previously talked about measures being necessary and proportionate. It is necessary to have an enforcement regime, and proportionate for the shoe to drop at some point; otherwise there is no point in having the legislation. Also, having made a significant number of points around Henry VIII provisions, and, at length, been quite displeased by some of them, even someone with my hard heart would say that it is proportionate for those to be set by regulations, because they will change over time.

The quid pro quo for that is what I have set out in amendments 11, 12 and 13, which remove some of the ambiguity and has the Government say when they intend to set the regulations. These probing amendments—I will not press them to a Division—set out what ought to happen within 60 days of Royal Assent, which would give a degree of clarity for those who are getting their decisions in order and understanding when the provisions are likely to fall. I think that is proportionate. If 60 days is too short or long a period, I hope the Minister will say when the Government intend to do this. I suspect they want to get on with it, but people ought to have that clarity.

[Felicity Buchan]

Amendment 11 would require the Secretary of State, via regulations, to set a maximum fine that can be imposed on public authorities in breach of the ban within 60 days of the Bill being passed. The suggestion by the hon. Member for Nottingham North to set a deadline of 60 days for the Secretary of State, while well intentioned, is inappropriate.

It is crucial that the threshold for fines is carefully decided in consultation with enforcement authorities, including the Office for Students and The Pensions Regulator. Since that will also be done by the affirmative procedure, the measure will need to go through both Houses. It will need to go through the Joint Committee on Statutory Instruments, the Secondary Legislation Scrutiny Committee in the House of Lords, and it would need to be debated in both Houses. Clearly, it is a piece of legislation that the Government want to be implemented, so I give the Committee my word that we will do this as expeditiously as possible. It is wrong, however, to commit to 60 days.

The same arguments apply to amendments 12 and 13. We agree that expediency in setting out details of the enforcement regime is important, but we need to take into account proper consultation with the regulators and enforcement authorities, as well as due scrutiny in both Houses. For that reason, I ask the hon. Member for Nottingham North to withdraw the amendments—I know that he said they were probing amendments.

[Alex Norris]

I am grateful for that answer from the Minister. I am happy to withdraw the amendment on that basis. The point about consultation is important, so I hope that is a full consultation, both with potential enforcement authorities and those who speak for those that are going to fall under the provisions, such as the Local Government Association.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Clauses 10 and 11 ordered to stand part of the Bill.

Clause 12

Application of prohibitions

Question proposed, That the clause stand part of the Bill.

[Alex Norris]

Clause 12 adds back the local government pension scheme. We heard in evidence just how seriously the local government pension scheme takes its fiduciary duties. This is overreach. The case for the inclusion of the local government pension scheme is weak. Again, I think this will play out later down the line in further discussions in the other place. Its inclusion, which is significant and will add an extra burden and anxiety for people working hard to deliver important benefits for their members, is not really necessary, so I hope the Minister will reflect on that.

Question put and agreed to.

Clause 12 accordingly ordered to stand part of the Bill.

Clauses 13 to 16 ordered to stand part of the Bill.

Clause 17

General provision

12 noon

[The Chair]

Amendments 16 and 17 to clause 17 were debated in an earlier group. I have not selected those amendments for separate decision, because they are incompatible with an earlier decision, namely that clause 2 stand part of the Bill.

Amendment proposed: 1, in clause 17, page 10, line 39, at end insert—

“(1A) Section 1 does not apply to decisions made by—

(a) Scottish Ministers, unless a motion has been passed by the Scottish Parliament indicating its consent to this Act;

(b) Welsh Ministers, unless a motion has been passed by Senedd Cymru indicating its consent to this Act;

(c) a Northern Ireland department, unless a motion has been passed by the Northern Ireland Assembly indicating its consent to this Act.”—(Wayne David.)

Question put, That the amendment be made.

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[Felicity Buchan]

May I take this opportunity to thank the entire Committee? We have worked effectively and expeditiously. I also thank the two Chairs and the Clerks.

[Alex Norris]

Similarly, I want to put on record our thanks to you, Dame Caroline, and Sir George, to the top-class Clerks for all their help, to the civil servants for their work and to my colleagues. I draw special attention to my hon. Friend the Member for Wigan (Lisa Nandy), who was shadow Secretary of State on Second Reading, for her efforts and support while we have been getting our work together, and to the Minister for her collegiate work, both inside and outside this room. I also thank her colleagues.

[Chris Stephens]

May I first thank you, Dame Caroline, and Sir George for chairing these sittings? I also commend all Members. There has been much debate around the Bill, and many of us have regarded it as essential that we debate it in a tone that is appropriate but also robust. I think we have done that in this Committee. I would like to thank all hon. Members for the tone they have adopted and also for their good humour. That has been essential for the Bill, which has been fairly controversial.

We will obviously reflect on the changes we want to see in the stages to come. I do think there is going to be a challenge on the Government’s side, because a number of their Members are very critical of the Bill. The fact that no amendments have been agreed will be a test for them. I again thank you, Dame Caroline, and Sir George, as well as the Clerks, for all the help we have had.

Lastly, it was unfortunate that there was no evidence from a Palestine support group in our evidence sessions. I do not believe there was a conspiracy on that. I think it was perhaps more cock-up than conspiracy, but I hope it is something we will all learn from. We should have all views heard, and we might all want to take that point away and reflect on it.

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

Alex Norris Excerpts

Committee stage
Tuesday 12th September 2023 Public Bill Committees

[Steve McCabe]

I have to say that I agree with that last comment—I think clause 4 is unworkable, and it adds nothing to the Bill. It is a bit like clause 3(7). If anything, it undermines some of the intentions behind the Bill. Not surprisingly, it has been referred to as a gagging clause. It is virtually Kafkaesque, because it is coming a bit close to thought control. We are asked to accept that a person is not only prevented from doing something that contravenes clause 1 but that they are to be prevented from saying that, if it were perfectly legal to do so, they would want to do it. It would appear that they are not allowed to think that either. As I understand it, the Government say that the justification—this is an honourable aim—is that they are trying to protect community cohesion.

I ask hon. Members to pause for a second and work out how many people they know, and what institutions, would argue that community cohesion is being protected and safeguarded by these measures. The clause might prevent a person from saying that they intend to contravene clause 1 or that they would implement decisions that would, effectively, contravene clause 1 if it were legal to do, but it does not prevent them from saying a whole series of other abusive and offensive things about the state of Israel or anywhere else. In fact, it gives them a licence to say all those other things, and there is not a thing that can be done about it, provided they stay within the limits of existing law. I cannot see how this restriction is going to protect community cohesion. It is likely to have the opposite effect and to give those who do not share the Minister’s objectives on BDS a licence to look for ways to be abusive and offensive and still stay within the limits of the law.

I share the Minister’s desire to protect community cohesion and, as I have said, her overall objectives on the Bill, but I ask her to reflect on whether the proposals will really have the effect she seeks or whether it might be smarter to withdraw what is a pretty dysfunctional clause and go back to the drawing board to see whether there are more practical ways in which we could unite on protecting community cohesion.

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to follow the passionate and high-quality contributions from the hon. Member for Airdrie and Shotts and my hon. Friend the Member for Birmingham, Selly Oak. I rise to address the issue of whether clause 4 should stand part of the Bill, because the Opposition believe that it should not. As we have heard, this is the so-called gagging clause, and colleagues will remember the significant discomfort about this provision on both sides of the House on Second Reading. It takes the Bill far beyond the existing consensus on combatting BDS actions that target specific states and into the realms of placing serious restrictions on freedom of expression.

Having listened carefully throughout our proceedings, I still cannot understand why the Government are so attached to clause 4. The road it takes us down is not helpful, and it will only muddy the waters in terms of what the Government seek to do. Let us be clear what clause 4 does. As we have heard from colleagues, it prohibits public bodies—yes, the entity but, in reality, the people who make it up—from making a statement that they would breach clause 1, were they able to, as a result of moral or political disapproval of a foreign state’s conduct. It is one thing to say that they cannot do it; now, they cannot even say that they would wish to—they cannot even talk about it.

We have heard the Minister’s qualification, and I will turn to it shortly. However, we must assess what is on the face of the Bill, which is a really bizarre limit on freedom of expression and contrary to the British values on which we pride ourselves. I know that there are Conservative colleagues who pride themselves on being free speech champions—indeed, it is a big part of what they do in this place and online—and I say to them that this may well be their moment to prove that.

I pay tribute to my right hon. Friend the Member for Barking (Dame Margaret Hodge), who spoke so powerfully on Second Reading about her experiences fighting the British National party and about why this clause cannot stand. She said:

“arguments are never won by suppressing democratic debate”.—[Official Report, 3 July 2023; Vol. 735, c. 615.]

I agree. That is a lesson that politicians on both the left and the right are still wrestling with—certainly in the online space—and need to learn.

There is also a wider problem. This is part of a broader range of efforts by the Government to curtail free expression—a legislative programme that has whittled away at the civic space over many years. That includes the Trade Union Act 2016, the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014, the Public Order Act 2023 and more. The Bill adds to those as yet another unacceptable fetter on free expression. There is consensus to make progress on the Bill, but clause 4 is a particular sticking point.

We have heard from the Minister, in the evidence sessions and today, some admirable attempts to clear this up. She has said that this is a very narrowly understood restriction and that individuals who may be a decision maker on one day can talk in a personal capacity on another, when they are not making the decisions. I think that fails on three fronts.

First, that is not what it says on the face of the Bill. Clause 4(1) states that a statement of intent to “contravene section 1”, were that permissible, is not allowed and, at line 15, the words “(in whatever terms)” are added. I cannot square “in whatever terms” with what the Minister has said. If someone was on a television programme, could they have a disclaimer and set aside the “in whatever terms” provision? I do not think those two things sit together, and I feel confident that an enforcement authority relying on judicial review for oversight would fall back on what is on the face of the Bill, rather than what we have heard.

Secondly, I would argue that a person who is a decision maker because they lead a local authority, is a cabinet member or is even, perhaps, a member of the council or a Mayor is always a decision maker. I do not think that they can just turn it off or on. I do not think that saying that is credible. I know that when people overreach in what they say on social media or in the media more generally, they might try to disassociate themselves from it in an attempt to shield their colleagues, but I do not think they get much shrift in that. Never mind when we get to the conflation where—we have current precedent—a leader of a council is a Member of Parliament. We also have recent and multiple examples, including one that lasted a significant period, where a Member of Parliament was also an elected Mayor. Are they fettered from talking about foreign policy in debates in this place? Can they take off those hats? I do not believe that they credibly can.

Finally, and this is the point made by my hon. Friend the Member for Birmingham, Selly Oak, we heard on Second Reading, and we have heard in Committee, that the purpose of the clause is to stop decision makers adding to or creating a situation where a community, particularly a minority one, is made unsafe. This is important, and the evidence from the Jewish Leadership Council and the Board of Deputies of British Jews brought that home. What the Minister has said in Committee, however, is that a decision maker could essentially say whatever they want, up to the point of advocating a boycott, and avoid that harm. As my hon. Friend says, it implies that a person can stand up and say anything they wish, in the most inflammatory terms, but that would not make people feel or be less safe. All that would do that would be the final phrase, “And I think we should boycott them.” I would say that the 200 words of inflammatory speech—of conspiracy theories and racist or hateful language—is where the harm is.

The clause does not add anything to the Bill, which leads us to our problem. We are being asked by the Government simultaneously to accept that the provision is broad enough to be impactful and to protect from harm, but narrow enough, as the Minister says, to apply in only a very small number of cases at a very small moment in time. I would say that those two things cannot be true together. The clause does not have to exist for the Bill to operate, which is why I believe we can safely vote against it without harming the overall goal.

[Bob Blackman]

Can I just put a contrary argument about the logic and flow of the Bill as planned? First, we have to look at clause 1. We are talking about individuals who are making decisions about placing contracts and buying goods and services from organisations that are affected by foreign policy. That is the first decision. Only the people in that position are affected in this way.

I am not a lawyer, either, but this is how I read the situation. A person cannot say, “I am going to break the law.” We cannot have an individual making a decision standing up and saying that. It clearly would be a contravention of the Bill and would be quite logical, and that is why we have clause 4(1)(a). If the person was to say, “If it were lawful to do so, I would act in this way,” that would create problems in community cohesion. We have seen that in what Leicester wanted to do, which is a prime example of what could happen if this clause is not included. From what I have heard, saying that this is about people in a representative democracy, whatever their guise, muddies the waters. The BDS movement focuses on Israel, the occupied territories and the Golan Heights, and it is targeting public authorities of all types.

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[Alex Norris]

I am grateful to the Minister for the case that she is making. We agree with everything she said about that hateful speech, but the problem is that she just said, a minute before, that so long as a person essentially walks out of the council building, or says, “I am talking in an individual capacity”, despite being the leader of the council, they can say all those things and there is no protection under the clause. What meaningful advantage does the clause actually provide?

[Felicity Buchan]

This very much has the advantage of preventing Leicester City Council from making such a declaration. So anyone representing the views of Leicester City Council and saying, “I am standing here giving the views of Leicester City Council” is not allowed to do that.

Let me move on to exact circumstances. Under the clause, individuals, including councillors, are not prevented from making statements of their personal opinions freely in their own capacity. Councillors are not a public authority and, therefore, they will not be prevented from expressing their support for or voting in favour of a BDS motion. For example, representations made by councillors during a debate that indicate that they would be in favour of their local authority engaging in boycotts or a divestment campaign will not be captured by the clause. It will apply only to statements made on behalf of a local authority. Therefore, if a local authority published the minutes of a debate or a meeting in which a councillor said that they would be in favour of their local authority engaging in such campaigns, this would not be captured.

As I have promised, I will make that distinction clear in the Bill’s explanatory notes. We want this to be very clear. There is a real concern that recent declarations of anti-Israel boycotts, even when they are not implemented in practice, have driven and contributed to rising antisemitism.

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Enforcement authorities

[Alex Norris]

I beg to move amendment 8, in clause 6, page 4, line 28, at end insert—

“(3A) In relation to a decision or statement made by, or for the purposes of, a local authority, the enforcement authority is the Office for Local Government.”

This amendment changes the enforcement authority for local authorities from the Secretary of State or Treasury to the Office for Local Government.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 9, in clause 6, page 4, line 38, leave out subsection (6).

This amendment removes the provision allow the Secretary of State or Minister for the Cabinet Office to amend this section so as to change the enforcement authority in relation to a particular description of decision or statement.

Clause stand part.

[Alex Norris]

Clause 6 sets out the enforcement authorities for the Bill’s provisions. Subsection (2) sets out that the enforcement authority is the Secretary of State or the Treasury, unless otherwise stated. Subsection (4) states that for any decision or statement made by an English higher education provider, the enforcement authority will be the Office for Students. On the face of it, that seems a fairly benign set-up for enforcement, but it creates a distinction in how the Bill treats different public bodies, on which I would like to press the Minister.

On the one hand, the Bill is saying that enforcement against higher education providers will be given over to a third actor, the Office for Students. On the other hand, it is saying that local government will be policed by national Government instead. Amendment 8 tries to put those things on a more consistent footing and to say that there should be less variance in enforcement. The amendment puts forward the Office for Local Government as a more suitable authority for enforcement of the Bill’s provisions in relation to local government.

I hope that the Minister will cover this issue in her response, because I do not know why there is divergence. She can put me right if I am wrong, but I fear that this is a continuation of central Government’s heavy-handed manner with regard to local authorities. Part of the problem with our approach is that we get devolution when local leaders get the answer “right”, but not so much when central Government disagree with them. Adding clause 6 to the Bill unamended will continue the trend of the Government wishing to keep the reins on local government. Given that they have already chosen to use the Office for Students, surely aligning that with the Office for Local Government would make an awful lot more sense.

Amendment 9 is similar to my amendment 4 on Henry VIII powers. The Government are reserving the ability to change the enforcement authorities as they wish under subsection (6). Amendment 9 seeks to delete that provision and ensure that we can set out, through normal parliamentary processes, who will enforce the legislation. Local councils are not going to change that much, and public bodies generally are not going to change that much, but the Government need emergency powers to vary the enforcement agency. If the Government wish to do things a certain way, they should put that in the Bill, and if they wish to change it they should return to Parliament through primary processes.

[Felicity Buchan]

I urge the Committee to reject the amendments. Let me explain why.

Amendment 8 would establish the Office for Local Government as the enforcement authority in relation to a decision or statement made by local authorities, except where specified otherwise. We have carefully considered the most appropriate enforcement authorities across the sectors that are covered by the Bill; for example, the Pensions Regulator has an existing role in regulating the administration and governance of the local government pension scheme. Although we are expanding some powers, the enforcement authorities listed in the Bill already have an existing role in enforcement for those public authorities. That is not the case for the Office for Local Government, which the hon. Member for Nottingham North is proposing.

The Office for Local Government is not envisaged as an enforcement authority for anything. It is intended to provide data and analysis about the performance of local government and to support its improvement, but it is not envisaged to have a role in regulating local government’s activities. It would therefore not be appropriate for it to have an enforcement role against local authorities in this context. Furthermore, Oflog is an office of the Department for Levelling Up, Housing and Communities and, as such, does not have a statutory basis. The effect of amendment 8 would therefore be to keep responsibility with the Secretary of State.

Amendment 9 would remove the power given to the Secretary of State or the Minister for the Cabinet Office to change the enforcement authorities in relation to a decision or statement captured by the Bill. The Bill will provide a power for the Secretary of State and other enforcement authorities to issue compliance notices, and to investigate and fine public bodies, where there is a breach of the ban. Public bodies subject to the ban will also be susceptible to judicial review if they break this law.

We have carefully considered the most appropriate enforcement authorities across some of the sectors covered by the Bill, such as the Pensions Regulator. For higher education providers on the register of the Office for Students, the Office for Students should be the responsible enforcement authority. As the Bill is drafted, the Secretary of State or the Treasury should be the enforcement authority for all other public bodies subject to clauses 1 and 4. Ministers of the Crown are not subject to the additional enforcement regime but are subject to judicial review.

In time, the most appropriate regulators for each of the sectors covered by the Bill may change. The Bill provides the necessary flexibility, via the power given to the Secretary of State or the Minister for the Cabinet Office, to update the respective enforcement authorities if they change. For those reasons, I ask the hon. Member for Nottingham North to withdraw his amendments.

[Alex Norris]

I am grateful for the Minister’s reply. I do not intend to press either amendment to a Division, but I will make a couple of points in response.

The Minister mentions that Oflog may not sit elegantly with the Office for Students, because the Office for Students has an existing role doing this type of activity, whereas Oflog does not. However, Oflog was only established in June, so of course it does not have a similar record or similar experience, but that is a person-made thing that could be changed. The Minister also says that Oflog was not envisaged as an enforcement authority, but I cannot believe that the Office for Students was ever really envisaged to be an enforcement authority either.

Similarly, the default enforcement authority in the Bill is the Secretary of State. I do not think that many people go to the ballot box imagining the capacities of different Secretaries of State to kick doors in; I hope not, anyway, because they certainly would not cast a ballot for me. I am therefore not wholly convinced that that is a brilliant argument against the amendment.

I also cannot accept the final point that the most appropriate agency may change in time. If that were the case as a result of the disestablishment of the Office for Students, say, that would itself require primary legislation, and the enforcement agency would be changed routinely as part of that. I do not think that Ministers should have the ability to change enforcement agencies on a whim—because one agency does not give the answers they want, for example—but I think there is a real risk of that. However, I do not think that that is enough to divide the Committee at this point, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Jacob Young.)

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

Alex Norris Excerpts

Committee stage
Tuesday 12th September 2023 Public Bill Committees

[Ms Qaisar]

Essentially, I want to talk about the impact that a local government can have when people at a localised level can outline how they feel about human rights records. This Government should take heed of that, because at that time it was Thatcher’s Government who imposed sanctions on apartheid South Africa and maintained close links with political leaders in apartheid South Africa.

I have tabled a number of amendments to clause 1. I have spoken at length about amendment 22. Amendment 31 is intended to probe the use of a subjective rather than objective test to establish whether a decision maker has contravened clause 1. In reality, there are so many amendments that could be made to clause 1. That is not just my view; we heard it from numerous witnesses during our evidence sessions last week and from multiple organisations that have submitted written evidence. The Minister should really go back and start from scratch.

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to see you in the Chair, Sir George, and to speak to amendment 3, which stands in my name.

We have now moved to the short but important process of line-by-line scrutiny of the Bill, which is itself short but important, with just 17 clauses and a schedule. In the high-quality Second Reading debate, we saw the significant strength of feeling among Members across the House. Frankly, there was not an even party political divide, which always makes things a bit more interesting. I suspect that colleagues’ mailbags, like mine, have been full of strong views from their constituents.

On Second Reading, the Opposition tabled a reasoned amendment setting out our significant concerns about the Bill, which very much start with clause 1. It is a long-standing Opposition position that we do not support boycott, divestment and sanctions-type activity against the state of Israel. As my hon. Friend the Member for Caerphilly said on Thursday, we are implacably imposed to it. I cannot improve upon that sentiment, which is also the view of the Government. It should not have been hard, if that was what the Government wanted, to build consensus around a proportionate set of regulations that would tackle the issue. Instead, clause 1 and the Bill generally are needlessly broad, with sweeping powers and far-reaching effects. Whether consciously or not, that has created an undesirable degree of division.

The Opposition do not think it wrong, in itself, for public bodies to take ethical investment and procurement decisions, given that there is a long history of councils, universities and others taking a stance in defence of freedom and human rights. After all, it is local ratepayers’ money, and it is reasonable for them to want a say in how to spend or invest it. Similarly, the money in a pension fund belongs not to the Secretary of State but to its members, so it is reasonable for members of funds, through their trustees, to wish to express their views on how the money is invested. We know that that is also the Government’s view, because they have carved out a wide range of exceptions in the schedule. It is clearly not in debate that there ought to be a degree of local say on such activity.

However, it is important to say, at the start of our line-by-line scrutiny, that there is a significant difference between legitimate criticism of a foreign state’s Government and what some have sought to do in recent years. There are those who have sought to target Israel alone, hold it to different standards than others and create hostility towards Jewish people in the UK. That is completely wrong, and we fully support efforts to tackle antisemitism in this country. However, this solution is not sufficient. In its unamended form, clause 1 will go far beyond what we are seeking to resolve and will create a series of problems along the way.

My amendment 3 seeks to clarify the ambiguous wording that a public body may not have regard to a “territorial consideration” when making procurement and investment decisions. As the then shadow Secretary of State—my hon. Friend the Member for Wigan (Lisa Nandy)—and I asked on Second Reading, is that supposed to mean that public bodies may refuse goods from a nation state such as China because of a general disregard for human rights, but may not refuse cotton goods from a territory such as Xinjiang state because of concerns about genocide of the Uyghur population? Or does it mean, as I suspect it may, that all actions of all foreign Governments are beyond the scope of local decision makers unless excepted in the schedule? Perhaps it is illustrative of where we are in the process of reviewing the Bill that that remains in doubt. We have seen doubt in the written evidence, and obviously doubt was felt at Second Reading, too. We need greater clarity in the Bill.

My amendment 3 is a probing amendment. I will not seek to divide the Committee on it, but I hope that it will provide an opportunity for the Minister to give clarity. I think we know that the Government mean that it is not territory-only boycotts that are out of scope, but rather that all boycott-type activity, where it disapproves of foreign conduct, is out of scope. I hope to hear that from the Minister.

I turn to the amendments tabled by the hon. Member for Airdrie and Shotts. My amendment 3 would have the same effect as her amendment 23 and is similar to amendment 22, so the same arguments stand.

I am interested to hear what the Minister has to say about amendment 31. It relates to the important debates we had in our evidence sessions about the reasonable observer test, which I struggled with a little. When I asked the witness panel about that, we heard slightly mixed evidence. I was willing to accept it as a term of art which would be well known to the courts and therefore not likely to provide another issue for litigation, but that point seems to be in doubt. I hope that the Minister can be clear about why this approach has been chosen.

I have no doubt that this legislation is heading straight for the courts. That was obvious from written and oral evidence and the Second Reading debate, and it will be obvious throughout our line-by-line discussions. Our debates in Committee will be germane to court proceedings as well, so it is important to have the greatest possible clarity in the Bill and in our discussions.

Finally, amendment 30 relates to a matter that I shall address in detail when we debate clause 4 stand part.

Conceptually, the Bill stands up and is easy enough to understand when we think about public bodies as entities in their own right. However, it swiftly starts to disintegrate when we consider that those entities are made up of a person or persons. I thought that there were some admirable logical gymnastics on that point from the Minister during our evidence sessions. She said that on one day a person might be a councillor, a trustee or a Mayor, and thus the decision maker, but that on another day, in another context, they might no longer be and would therefore not have their freedom of expression fettered. I am not sure that that is credible, but I suspect that the Minister will want to speak to that point, so I hope to hear some greater clarity on it.

[The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)]

It is a pleasure to serve under your chairmanship, Sir George, with other hon. Members from all parties. The Bill is an important piece of legislation that has been brought to this place to fulfil a manifesto commitment to ensure that the UK speaks with one voice internationally, and to promote community cohesion within the United Kingdom. We have 17 clauses and one schedule to discuss in four sittings.

Amendments 22 and 23 would remove the references to “territorial consideration” from the Bill. I am not sure that this is what the hon. Member for Airdrie and Shotts intended, but the amendments would broaden the scope of the Bill. In its current form, the Bill will prohibit only territorial considerations

“that would cause a reasonable observer of the decision-making process to conclude that the decision was influenced by political or moral disapproval of foreign state conduct”,

but the amendments would mean that when a public authority is making a procurement or investment decision, all considerations influenced by political or moral disapproval of foreign state conduct would be captured, not just territorial considerations—unless, of course, they were also excluded in the schedule.

The condition of “territorial consideration” in the ban means that the Bill only bans certain boycotts or divestments that “specifically or mainly” have regard to a country or territory. It does not currently, for example, prohibit public authorities that have an environmental policy for their procurement or investment decisions that is universal rather than country-specific. The amendments would arguably prohibit such policies, which is not the intention of the Bill.

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[The Chair]

That is indeed a point of order. The remaining amendments in the group will be taken either in the next clause or later, when we come to clause 17, because they are consequential on the lead amendment.

Clause 3

Exceptions

[Alex Norris]

I beg to move amendment 4, in clause 3, page 2, line 17, leave out subsections (2) and (3).

This amendment would remove provisions allowing Ministers to amend the Schedule, via regulations, to add a description of decision or consideration, or amend or remove considerations added under previous regulations.

Clause 3 makes a number of exceptions, set out in the schedule, to the proposed ban on decisions made by public bodies in respect of foreign states—that is, it allows for certain conduct to be in scope for ethical decision making, such as environmental concerns. We support the principle of excepting certain powers from the Bill, and Members will not be surprised to hear that we are pleased to see labour rights there. However, the clause then bakes in a rather unacceptable and significant power grab by the Secretary of State over the ethical procurement decisions that a public body may wish to make.

Looking around the room, I see some Members who have been here longer than me and some who have been here for a bit less time, but I bet everyone will agree that one thing we were not told before we came here was that while we thought we would be talking about great matters of state, we would end up talking about Henry VIII regulations. Whatever happens, all roads lead to this bit of the Bill. I am continuing that unbroken streak, though perhaps not at length, as this argument is made frequently.

Clause 3(2) will provide the Secretary of State or Minister for the Cabinet Office with the power to amend this vital schedule in which the exceptions are laid out. That is an eccentric and totally unacceptable and unnecessary provision. This Parliament is rightly spending lots of time on this legislation. We have taken oral and written evidence from witnesses and will have multiple debates in the Chamber. We have convened this Bill Committee and will go through the Bill line by line, and then this process will be repeated in the other place. That is so we get the provisions right.

What we are being asked to do in the light of clause 3 and the schedule is to divine whether we think the range of exceptions is right. Is it broad enough? Is it too broad? Should we add any more? Should we take any out? That is the purpose of Parliament and parliamentary scrutiny. Yet we are being asked to put a provision in the Bill that the Secretary of State can just change that anyway via secondary means. That creates an unacceptable imbalance between the Executive and the legislature.

The problem is best understood in contrast to subsection (5) because that is a mirroring provision. It allows the Secretary of State to add or remove countries from the list of places that public bodies may boycott. We have not sought to amend that, because we know from recent painful experience that foreign affairs have a habit of moving on, and there must be an opportunity for the Government of the day to make changes swiftly. That is entirely reasonable in the case of foreign affairs and entirely unreasonable in the case of exempted activities, because they will not change quickly. Environmental and labour concerns are anchor issues that will dominate debates long after all of us are gone. The Secretary of State and the Government more generally do not need the power to vary that quickly.

If we do not accept the amendment and we accept what is in the Bill, what all colleagues—Opposition and, frankly, Government Back Benchers too—are being told is, “Do all the due process, but don’t worry; we will just change it later if we fancy it”. That is not good enough in a parliamentary democracy, and we should delete the provision today.

[Kim Leadbeater (Batley and Spen) (Lab)]

I will make just a short contribution, if I may. I associate myself with the comments of our shadow Minister. The matters covered by the Bill relate to issues of fundamental importance: the interpretation of UK foreign policy and the ability of public bodies to respond. We live in uncertain times, and the UK’s position as an influential country on the world’s stage will understandably need to change in response to events in many areas of instability. In those circumstances, it would be fundamentally wrong for Ministers to reserve to themselves the power to amend the schedule in the Bill without returning to Parliament and giving MPs and, indeed, interested parties the opportunity to scrutinise and, where necessary, object to it. That is why I support amendment 4.

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[Felicity Buchan]

Amendment 4 would remove the power granted to the Secretary of State to amend the schedule so as to make exemptions to the ban for certain bodies and functions and certain types of considerations, and to amend or remove regulations made under those powers.

The power is necessary to ensure that the ban can evolve over time and operate as intended. The Bill rightly applies to the full range of public authorities. That is necessary to ensure that we have a consistent approach to foreign policy and to stop public authorities being distracted from their core duties by divisive debates and policies. In the event that the ban has unintended consequences for a public authority and impacts on its ability to deliver its core functions, however, this power will allow the Secretary of State to exempt the body, or a function of that body, from the ban via a statutory instrument. The exercise of the power will be subject to affirmative resolution by both Houses.

The power will also allow the Secretary of State to exempt certain types of considerations from the ban. That may be necessary if the Secretary of State needs to react quickly to international events. In the drafting of this legislation, my officials have been careful to ensure that the Bill applies only to appropriate bodies and types of considerations. However, the Government may also decide that a certain consideration should be made exempt from the ban so that the Bill can operate as intended. The Secretary of State requires the power so that he can respond effectively to potential unintended consequences that the Bill might have on a public authority without the need for primary legislation. If that had to be done through primary legislation, a public authority might have its ability to carry out public functions hindered for an extended period. I therefore ask the hon. Member for Nottingham North to withdraw his amendment.

[Alex Norris]

I am grateful for that answer, but I am afraid that the Minister has rather made the Opposition’s case for us. It is deeply concerning to hear that the purpose of the provision is about anxiety in Government concerning the possibility of a bundle of unintended consequences that could hinder a public body’s activities for a number of months, as has been said. That is the reality—we have said that from start to finish. This thing will set a fire. This thing will roll in ways that we cannot conceive of, because it is so broadly drawn and, in places, so erratically drawn. That is a reason for not proceeding with the Bill in this form, and for coming back together to produce—as we are all keen to—something that is less broad and wide-ranging, but delivering a solution to the problem that we are seeking to tackle.

The Minister’s argument is not for retaining subsection (2), but for revisiting the provisions. I therefore hope that, having said that, she will reflect on the fact that she discussed the great anxiety about the unintended consequences of the Bill. That is what we should be addressing, instead of just giving yet more powers to Secretaries of State to act as they wish. I will press the amendment to a Division.

Question put, That the amendment be made.

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Division 6

Ayes: 2

Noes: 10

[Alex Norris]

I beg to move amendment 2, in clause 3, page 2, line 40, at end insert—

“(4A) Section 1 does not apply to a decision which has been made in accordance with a Statement of Policy Relating to Human Rights.

(4B) A Statement of Policy Relating to Human Rights—

(a) is a public authority’s policy criteria relating to disinvestment in cases concerning contravention of human rights; and

(b) must be applied consistently by the public authority to all foreign countries.

(4C) Within 60 days of the passing of this Act, the Secretary of State must publish, and lay before Parliament, guidance on the form, content and application of Statements for the purposes of this section.

(4D) Public authorities must have regard to the guidance referenced in subsection (4C) when devising a Statement.”

This amendment would exempt public bodies from the prohibition in section 1, where the decision has been made in accordance with a Statement of Policy Relating to Human Rights. A Statement may not single out individual nations, but would have to be applied consistently, and in accordance with guidance published by the Secretary of State.

We heard on Second Reading, and again today, that the Government want to put disapproval of the conduct of foreign states and their territories beyond the scope of competent activity for local public bodies, in order to stop public bodies taking partial and potentially harmful stances. However, this Bill is akin to using a nuclear weapon to crack that nut. We have just heard from the Minister that the Government are so concerned about the unintended consequences the Bill may have that they are having to reserve the powers to change it quickly later, lest a public body be shut down for a number of months. The Committee just accepted that change, but it is yet another power grab by the Secretary of State and it is heavy-handed in its enforcement.

Amendment 2 sets out an alternative approach. We have been clear from the outset that it is possible to achieve what both the Government and the Opposition wish to achieve but without the overreach of the Bill in its current form. Amendment 2 would allow a public body to produce a document that sets out its policy on procurement and human rights and for that to be developed in accordance with guidance published by the Secretary of State. This is a relatively long-held Opposition policy. Indeed, it is similar to an amendment I tabled to the Procurement Bill many months ago. It is vital that procurement decisions made with regard to human rights issues be applied across the board, not just to prevent unethical actions against specific states but to ensure that common actions have the greatest impact.

Such a statement of ethical policy would thus ensure consistency in how contracting authorities—or public bodies more generally—decide on such matters, and inconsistent application would be prohibited. The practical effect would be to make it unambiguous that if a public body does not wish to procure goods from Russia because of President Putin’s abhorrent human rights abuses in Ukraine, the law will be on its side. If the same body does not wish to procure services from Xinjiang because of the appalling treatment of Uyghur Muslims, the law will be on its side.

[Chris Stephens]

The hon. Gentleman is making an excellent speech. In our evidence sessions, we heard very powerful testimony from Uyghur society and the Uyghur people, who said that we really need to look at this part of the Bill. Does he also agree that it is very interesting that witnesses on the Government’s side support disinvestment for China, for the very reasons that he has just outlined?

--- Later in debate ---

[Alex Norris]

I agree. After hearing that testimony, I reflected on one of the things that I love the most about my country—I think about this quite a lot—which is that we stand up for people who need it, whether by providing shelter or by never walking on the other side of the road. I see things through that prism. I think it is a really fundamental British value, and I am concerned that we will lose some of that. Of course, significant matters of foreign policy are the reserve of the Government of the day, but the issue should not just be left to Government Ministers. The outpouring of support for Ukraine, both in my city and across the country, showed that people take that seriously and want to have a role and a say—they want to be part of that process. That is part of building common cause, but I fear that this goes too far and will squeeze some of that out.

Our amendment 2 makes our approach to the matter very clear. If a public body acts only against a particular state—for instance, the world’s only Jewish state—while not applying the same approach to human rights abuses everywhere, such actions would be illegal. Our amendment would not just ensure that there are consistent decisions and that communities are not singled out; it would also strengthen our country’s commitment to stand against human rights abuses all over the world.

Our country has always defended the fundamental, inalienable human rights of all people. Procurement and investment decisions are part of that, and we should not shirk that role when it is the right thing to do. The amendment would ensure that public bodies could still play their part and that the contemptible actions of those who target one state while looking the other way when abuses are committed elsewhere are finally prohibited.

As I said on Second Reading, our amendment could be technically deficient—I am never sure whether we are supposed to admit that in Parliament, but it is clear anyway. If it is technically deficient—after all, I drafted it, and am perfectly willing to say that it is the work of a human being—we are more than willing to work with the Government to find something that works in both principle and substance. I hope to hear from the Minister that there is willingness to meet us a little bit on this, so that we can tackle the problem that we are all trying to address.

[Kim Leadbeater]

I rise to speak briefly but strongly in favour of amendment 2. The UK should be a beacon for human rights, not just here at home but in our foreign policy and our relations with other states. That can be done only on the basis of a consistent application of the principles we seek to uphold. It is not hard to do that when human rights abuses are committed by countries we are in conflict with. However, we must be ready to apply the same standards to countries we regard as allies and friends. That is not always easy, but if we fail to do so, we open ourselves up to accusations of double standards and hypocrisy.

--- Later in debate ---

[Felicity Buchan]

That is a very good point. This amendment carries the risk of allowing a multitude of different statements on human rights, without any consistency, resulting in the community friction that we all desperately seek to avoid. That is why we are looking to boycott the BDS movement.

[Alex Norris]

I am grateful for the Minister’s response. To address the point made by the hon. Member for Harrow East, the circumstance he outlined could happen now, of course. Part of the reason we are here and that legislation in this space is important is that it does not happen in that way, does it? As we heard in the evidence sessions, it almost exclusively tends to be targeted at Israel. I do not think there is any evidence to suggest that local expertise is causing a thousand flowers to bloom across public bodies. Actually, amendment 2 would protect against that because it would give local authorities tools to say, “Look, we can only do this if we can engage in it across the piece, and we don’t think that that is core business.”

The Minister has expressed her concerns about distractions for local authorities. I know from my time in a local authority, during which we pushed back against a boycott of Israel, that these things flair up over a short period, a lot of energy goes into them, and it would have been much better to have had a fixed point. The amendment reserves the right of the Secretary of State to set out the form, so there would be no wild variance across all public bodies. It would give them a fixed point to anchor to, which would take a lot of pressure off the leaders of public bodies.

I am grateful to the Minister for making those points, but the reality is that we are in slightly different positions. I still hold out the hope—and I will be actively working on this between now and the final stages of this Bill—that our positions will become closer. At this point, however, given that the gap has not closed during this debate, I will have to press my amendment to a Division. We want to send a clear message that there are other ways of achieving this very important purpose.

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

Alex Norris Excerpts

Committee stage
Thursday 7th September 2023 Public Bill Committees

[The Chair]

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

[Alex Norris (Nottingham North) (Lab/Co-op)]

Q The key test in clause 1 for the action of a decision maker is whether it

“would cause a reasonable observer of the decision-making process to conclude that the decision was influenced by political or moral disapproval”.

Are you content with the phrase “reasonable observer”? Do you think it is tight enough? Could it be clearer?

Jonathan Turner: Yes. “Reasonable observer”, or “reasonable person”, is used throughout English and Welsh law and so on. It is the basis of the law of negligence. You interpret contracts with reference to how they are understood by the reasonable person. In legislation, similarly, and in lots of other documents it provides an objective test, instead of looking at the subjective intention of the maker of a statement. That has the benefit of greater certainty and greater clarity, which is why it is used.

I am very happy with it being the formulation that is used. I do not think that there is any problem with it at all; I think it is the best way of doing it. You would have terrible difficulties if you tried to do things in terms of the subjective intention of people adopting the decision.

[Alex Norris]

Q So can we have confidence in it as essentially a term of art that will be easily understood by the courts and is not likely to lead to a series of cases based on whether or not one is reasonable? Is that likely to be tested?

Steven Barrett: It is not likely to be tested, because it is quite a settled test. It is a legal mechanism for taking subjectivity and turning it into objectivity, which is what law does—and which is why when I speak in public on law I have the unique and remarkable opportunity to annoy everyone. It is an acceptable test and I would not worry about it. The courts are familiar with it.

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[The Chair]

To use the same approach I advocated for the previous question, if the two other witnesses want to concur with or dissent from the response that Mr Timms gave, could they say so and perhaps raise any additional points that they think would be helpful to the Committee?

Yasmine Ahmed: Yes, I wholly concur with what Dave said. I would just add that first, as Dave noted, it has to be illegal. Fossil fuels, not necessarily the extraction of fossil fuels, are not illegal—that has been well covered. What about a situation where there are dual considerations? We see many situations where deforestation happens, for example, and there are attacks on indigenous communities and human rights defenders. What happens then? Is that caught by the Bill or not? As I mentioned, there is a litany of other human rights abuses and international crimes that are not captured by the Bill, so the exemptions are certainly by no means exhaustive. The very point that I would argue is that the Bill cannot, because the whole point of the Bill is to stop public bodies being able to carry out their due diligence responsibilities effectively.

Peter Frankental: I concur with Dave, but I want to add one point on the exemptions. The vast majority of cases reported of companies abusing human rights are not litigated—they are not subject to civil or criminal litigation; they are exposed by the media or by non-governmental organisations—so the exemptions defined in terms of breaches of law are unlikely to apply and no public body would feel confident in using the exemptions unless there has been a legal case. In so many jurisdictions, the law either is not in place or there is corruption or weak regulatory systems. The independently commissioned report on modern slavery by Frank Field, Baroness Butler-Sloss and Maria Miller drew attention to the very weak regulatory systems in the UK for implementing the Modern Slavery Act, so any reliance on the law will put public bodies in a very weak position.

[Alex Norris]

Q To build on that point, we have heard very strongly from panellists that you do not believe that the exceptions in the schedule to the Bill will protect environmental concerns. We have previously heard from the Government that they believe that it does. Assuming that that is their intent, how would you bridge the gap between what is on the face of the Bill and what is said to be the intention of that exception? Are you saying that it is irredeemable, which I think was the point that you made, Yasmine?

Dave Timms: You could increase the scope of that exemption, but you would still be left with all the problems that have been pointed out. You could have the environmental misconduct exemption extended to any environmental issue or any issues surrounding environmental harm, or include anywhere that there is a breach of international environmental treaties or agreements, but that would still leave you with the problem that Yasmine pointed out: the fact that in so many cases, environmental problems are related to human rights abuses. Look at logging in South America, where there is a high degree of overlap with human rights abuses; you would not be able to do it. You also would not be able to deal with the problem you have in clause 1, which is that any activity from civil society would be dragged into this as well. Often environmental organisations such as Friends of the Earth will campaign around concerns that overlap the environment and human rights. You might be able to chip away at the damage, but it is really hardwired into this from the start.

We have some experience of dealing with the kind of language in clause 1, which talks about a “reasonable observer”, because it is really similar to the chilling effect caused by the language in electoral law that bites on third-party campaigners, where you must have regard to what is reasonably intended to influence voters. That has had a huge chilling effect, which has been documented by parliamentary Committees, on the activity of civil society in campaigning on legitimate issues around election periods. We have seen language like this: it has been drafted in a way that is vague, and language similar to this has been shown to have a chilling effect on the activities of legitimate civil society organisations trying to achieve legitimate aims.

[The Chair]

Does anyone have anything to add to that? No? Okay. I will come next to Dr Luke Evans.

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

Alex Norris Excerpts

Committee stage
Tuesday 5th September 2023 Public Bill Committees

[Felicity Buchan]

Thank you, Chair.

[Alex Norris (Nottingham North) (Lab/Co-op)]

Q Thank you to our witnesses for their time. In opening, you were very clear, Jon Richards, about what your job is and what your job is not, and I think the Committee will have taken some comfort from that. Do you feel you need extra tools or controls do that job?

Jon Richards: I do not think we do. I think we think that the level of regulation of the LGPS is also already very high. You will have seen that the Government have just introduced a whole series of additional pension consultations, which we have to do—which poor Jo has to deal with and spend a long time on. Again, we think there is significant regulation. We have a regulator and we have a clear fiduciary duty. Trustees have clear responsibilities, including training responsibilities. They have a clear understanding of what should be done. There is a need for improving governance, and we have been doing a lot of work on that, including training. We have also tried to issue guidance on the need to be clear that, if there are challenges, or attempts to move people away from the fiduciary duty, we need to drag people back to that, and they should not be diverted by some of the political games that are potentially out there.

[Alex Norris]

Q You mentioned legal challenges. Could you say what your anxieties are there?

Jon Richards: There is some wording in some bits of the Bill. For instance, it talks about being substantially “influenced”, a “reasonable observer” and “moral disapproval”. There is a series of phrases. These are very open, vague phrases. It is a lawyers’ charter. It really makes it difficult for us. We have already seen an increase in the number of legal challenges around this issue. You can see the pressures around a whole series of environmental issues. We face a whole series of pressures. Every new regulation, particularly if it is as openly worded as this, potentially makes it more difficult for us to deliver our fiduciary duty.

Jo Donnelly: Could I add something to that? The concerns about the judicial review and the court processes, in particular, are quite key for us, because it does appear that there could be dual running, effectively—enforcement action from the regulator alongside an interested party potentially bringing a judicial review or a High Court claim. The definition of an interested party is something that we would like to be clearer—for example, whether they need to be a scheme member or a local taxpayer. Some kind of clarity around the definition of who that could be would be helpful.

There is a real concern about the possibility of a local authority having to deal with a regulator investigation as well as a High Court claim. If a High Court claim was brought, that would be the first point of action. Normally, a High Court claim would be the end point; it would be the last resort. In this case, it could potentially be the first part of action, so the courts would be undertaking an investigation that we do not think would be helpful for them or the local authorities that are the subject of the action. That is a key concern for us as well.

Jon Richards: Can I add one thing, please, Chair? There is another issue about statements being made by particular people. If someone makes a statement, say, during a pensions committee meeting, and it is minuted, it is not clear whether the challenge is against the pensions committee, or the individual or whatever. There is some wording about the dangers of someone expressing themselves in a pensions committee meeting, and the potential impact of someone taking a challenge against the whole committee. Again, there is very loose and worrying wording for us.

[The Chair]

Q Before I bring in Chris Stephens, can I ask something? Of the various options for dealing with that problem that you mentioned, which do you think is likely to be the most effective?

Jo Donnelly: What we would like to see is a change in the Bill that would lead to the judicial review option or the High Court claim being possible only against the decision of the enforcement authority. Effectively, the decision that the regulator makes is what can be then challenged in court, rather than the decision—the alleged breach of the law—by the authority in the first place. Ideally, it would proceed as relatively normal, which is that a decision of an enforcement authority is what is challenged in law, rather than the original decision.

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[Felicity Buchan]

Q Just a point of clarification: the Bill only prevents decisions being made on the basis of moral or political disapproval of states as opposed to banning fossil fuels or environmental matters. It does not cover that.

Councillor Jamieson: I am speaking personally here. This is not an LGA view, just to be clear. I think the principle of this legislation is absolutely fine and, in many ways, helpful because it enables people on a pension committee to be very clear that they cannot consider countries when looking at this. However, my caveat is that there are some details in the regulations that need clarifying and those are quite concerning. It is not the principle but some of the details and we just want to make sure that some of those are right.

[Alex Norris]

Q I would like to start by putting on record the thanks of Members of the Opposition Front Bench to Councillor Jamieson for his leadership of the Local Government Association. It is safe to say that it is a broad family of all parties and none, so that leadership in a single person is an exceptionally tricky job and I think you did a very good job of it. As I say, we are grateful for your leadership and your candour with us when we have asked you questions in the past. Thanks again for your and Councillor Deering’s presence.

We speak a lot in this Parliament about transferring power from here to local communities, namely our local councils. The Bill very much transfers power from our local councils to this place. How do colleagues in the local government family feel about that?

Councillor Jamieson: Thank you very much for your kind words. As I should have mentioned in my little statement a moment ago, I am very vexed—and was very vexed as chairman of the Local Government Association—by the underlying trend of giving powers to local government with one hand and taking them away with multiple hands. I can genuinely understand why it is being done, but I do not like the fact that it is another example of central Government just eating away at the freedoms and devolution of local government, but there are far more contentious areas than this one in which I would argue that the Government have taken back powers.

Councillor Deering: My view is very similar. I do not know that in Hertfordshire we feel particularly that this is a power grab from us; I think we understand the rationale of the Bill, or the proposal. If we had more experience of problems in the area, maybe we would feel differently, but I think we would say that we are fairly relaxed about this.

[Alex Norris]

Q Clause 4 will restrict your ability not only to act, but to talk about whether you would have been inclined to act. That is quite a significant fetter on your free speech. How do you and your colleagues feel about being told by central Government what you can and cannot say?

Councillor Deering: My answer is very similar. Again, it could be because our experience of problems arising is quite limited, but we are broadly relaxed about the point that you are making. We can see the overarching objective of the proposed legislation.

Councillor Jamieson: This was one of the areas of detail about which I had a concern, because I think it only right that in a committee meeting people should be free to express views. The key question is what the decision of that committee is. That is what should be held to account, rather than the views that are expressed and rightly debated in the meeting.

We have two concerns. One is about the freedom to express those views in an appropriate manner during the meeting. The second concern is that we publish minutes of meetings. If those minutes faithfully record what somebody has said, would that breach the rules on expression of views? Those are two details that need to be sorted out, because we do want debate in a meeting. People should be able to express their view; the point is that when they come to make a decision, it is the decision that should be held to account, not what people said in the meeting.

[The Chair]

Six members of the Committee have indicated that they want to ask a question, so I will initially confine them to one question each. I am sure that members of the Committee have enough intellectual flexibility to be able to get everything they want to find out into a single question.

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

Alex Norris Excerpts

Committee stage
Tuesday 5th September 2023 Public Bill Committees

[The Chair]

Just a reminder that this panel is due to conclude at 2.30 pm and I have three more Members who have indicated that they wish to contribute. If anyone wishes to contribute, please waggle your fingers at me. Do you want to add anything further, Dr Harris?

Dr Harris: Briefly, I agree with Dr Mendoza. The justification here should be the limitation of vires—of the powers—of these bodies. That is the way to justify clause 1 for me. The justification is not, “Get behind Government policy” or “Do not make these moral or political statements”: it is vires and powers. We can come back to that in further questions.

[Alex Norris (Nottingham North) (Lab/Co-op)]

I have just one question, about clause 7, which governs the information notices—the mechanism by which the Government can compel information from public bodies to find out if they have made, or are about to make, a decision that would contravene clause 1. In clause 7(8), those notices override any obligation of confidence, so if it is a conversation between someone and their lawyer, the Government can compel that information. That seems to me to be a very strong power. What is your opinion?

Dr Harris: My reading of that, on its face, is that it would be something like the whistleblowing protection, whereby a whistleblower is exempted from duties of confidence to their employer. Without more, it would strike me as extremely unlikely that this would override the privilege between a lawyer and client.

[Alex Norris]

Even though it says “any obligation” on the face of the Bill?

Dr Harris: Yes.

Dr Mendoza: I have a slightly different response. I am slightly perplexed by the question. What were you thinking that was so secretive and furtive in nature that would even require a lawyer/client confidentiality level? We are talking about a simple foreign policy discussion, not about someone’s secret actions.

[Alex Norris]

Q What I would say is that you would know, as a local authority councillor, that local authorities routinely take legal advice about their actions, certainly if they thought they might be an edge case in such legislation. On a fair reading—I would be delighted if I were wrong—this would permit the extraction of such information, which we would normally consider privileged, by dint of a Government information notice, and I wondered if you felt that was proportionate.

Dr Harris: It is important to note that it does not say that the enforcer can demand information that is confidential. All that happens is that the person disclosing will not be liable if they breach a right of confidence. It is not a right to extract the information, or a power of the Government; it is simply a freeing from liability of the discloser.

Dr Mendoza: I would agree with that reading. It says:

“A person providing information in compliance”,

so I think that is the correct reading of that clause.

Dr Harris: There is one, perhaps related, problem for me. Clause 4 states:

“A person who is subject to section 1 must not publish a statement”,

and that can include statements of intent or hypothetical intent. Consider, for instance, a university governing body—senate or council—making a decision about divestment. Let us say that there is a meeting, there are minutes and they are kicking ideas around. They may well benefit from a degree of those deliberations not being public.

The problem I have is that my understanding is that an FOI disclosure would constitute publication. If you look at section 79 of FOIA, it is explicitly called “publication”. This body would be in a position whereby it would say, “Well, we have to comply with FOIA, because we have to disclose, and if we do disclose, we may be breaching the law by publishing a statement whereby we say that we intend to act in a certain way.” It is a drafting point, I think, but that needs to be cleared up. We do not want over-defensiveness in these deliberations by public authorities.

Dr Mendoza: I agree. That is an interesting technicality that probably should be taken note of by the Committee.

[Chris Stephens (Glasgow South West) (SNP)]

Q I have a question for you, Dr Mendoza, and then a separate question for Dr Harris. The Henry Jackson Society, the organisation that you represent, is described as being

“focused primarily on supporting global democracy in the face of threats from China and Russia”.

Does your organisation in any way support divestment in China, particularly regarding the treatment of Uyghur Muslims?

Dr Mendoza: I would say, on that point, absolutely. The position that we adopt with China is very simple. I believe that you have a witness who will be able to tell you about the experiences of her family, her relatives and, indeed, her people in what are effectively modern-day concentration camps, to the point that many among us believe that the Chinese Government are practising genocide against this particular group in Xinjiang. If we look at what is actually happening there—the eradication of their culture, the imprisonment of people for forced labour and that sort of activity—on that basis, we are essentially talking about modern-day slavery. You will be aware that the Bill will be superseded by modern slavery actions and the UK’s sanctions regime on this. Yes, we do believe that there ought to be accountability from the Chinese Government on this score, and I personally would not be buying things from Xinjiang province.

--- Later in debate ---

[Ms Qaisar]

Q Is that a concern that you have? Richard Hermer KC has raised concerns that UK courts would potentially have to rule on the legality of Israeli settlements in the Palestinian territories.

Stephen Cragg: Yes, because there are competing views on that. If there are competing views, local authorities might want to seek a view from the courts on whether their view is correct. It is then all up for grabs in the High Court and beyond after that—something that the courts have tried to avoid getting embroiled in.

[Alex Norris]

Q You mentioned the use of regulations for setting the fining regime. That is a common theme of this Bill. It also allows the Secretary of State to vary the schedule that sets out the important exceptions to the Bill and to vary enforcement authorities. That is a theme of the Bill. Do you think that those things and that degree of reserved power for the Secretary of State should be on the face of the Bill, or are they proportionate and necessary for the effectiveness of the Bill?

Stephen Cragg: What the Bill does is give very wide powers to the Secretary of State to change lots of aspects of this—which countries are involved, which conditions and the like. The concern when you have secondary legislation powers is always, “All right, this Government might not use them in a way that you would not agree with, but Governments down the line may use the powers they have here to mould a system where countries that they agree with are excluded under the Bill, and countries and issues that they do not agree with are the ones that things will be focused on.” There is always a concern about that. In something as important as this, it seems to me that that should be on the face of the Bill; it would give me a lot more reassurance as a lawyer if it were on the face of the Bill.

[Alex Norris]

Q Secondly, to finish the points you made in a fulsome way on clause 7, for my own clarity. You are saying that you would have greater confidence in the provisions in clause 7 if it was on the face of the Bill that privileged information between clients and their legal representation was exempted from that information-gathering power?

Stephen Cragg: Yes. I read out the terms of clause 7(8) and it seems to say that there is no restriction on the information which can be requested, as far as I can see. If that is not the Government’s intention, it is simple to put that right.

[The Chair]

Thank you very much. If there are no further questions from Members, I thank the witness and we will move on to the next panel.

Examination of Witnesses

Francis Hoar, Professor Andrew Tettenborn and Professor Adam Tomkins gave evidence.

--- Later in debate ---

[Felicity Buchan]

Q Do you not think it is needed for community cohesion? These statements can be very inflammatory.

Francis Hoar: Yes, of course they can, but as Professor Tettenborn said, that does not stop councillors making them on the campaign stump, and it does not stop the Mayor making them in a personal capacity. I am afraid I do not find that a convincing argument at all.

[Alex Norris]

Q I want to follow that point through, with all three panellists, if possible. You have all indicated support for the Bill in generality, and in particular for what clause 1 tries to achieve. Do you think you have to have clause 4 for the Bill to be effective?

Francis Hoar: I have answered that.

[Alex Norris]

Yes, I think you have addressed that point, but what about the two professors?

Professor Tettenborn: I must admit that I am a little more friendly to clause 4. I will tell you why. It comes out in the old saying that a nod is as good as a wink to a blind horse. Sorry, that was a bit flippant, but if you have a statement by a large number of councillors, “We really don’t like it. We’re not saying that we might disinvest from it, and we’re not saying that this is going to influence what we do, but you realise what our views are,” that is going to come across to a lot of other people as being very much the same thing. I gather that that was what this particular clause was getting at. I confess that I am a little less happy about conditional statements, but if a person says, “We would like to do it—okay, it’s illegal, but we would like to do it—but we are not saying we are going to do it,” I think there is a strong case for saying that they should not say that.

One always has to remember that, as Professor Tomkins pointed out, this is not something that criminalises a statement. Basically, something can only happen to you when you make a statement once you have been warned—once you have received a notice: “Oi, don’t say that again.” Now, you might want to challenge the notice or whatever, but that is a relevant feature of the legislation. It is a feature that I find attractive, as against the rather fierce legislation that they have in quite a lot of American states.

[Alex Norris]

Q Professor Tomkins, could you address that point?

Professor Tomkins: I will make two quick points about clause 4, if I may. First, in my career I suppose I have worn two hats: one as an academic lawyer and the second as a practising politician. What you have heard from the other two witnesses on this panel are legal responses to clause 4, and there is nothing wrong with that at all—I do not mean that as anything other than a compliment—but perhaps a political response to it would be to remind this room of politicians that, in these matters, it is not just what happens that matters: it is also about the optics of what happens, particularly with regard to the undermining of community cohesion.

The Jewish community in Scotland—which happens to be a community that I know rather well, for personal reasons—is a very small community. It is a community that is very easily frightened, not necessarily by things that are done, but by things that are said. If we are serious about protecting community cohesion, and I think the Government are serious about that, and they are right to be, and if we are also serious about maintaining the integrity of British foreign policy, we need to be careful about what is said by people in their official capacities—not as private citizens but in their official capacities. For those reasons I am much more enthusiastic about clause 4 than most of your other witnesses have been.

With my legal hat on, I am certain that there is not an article 10 problem here, because clause 4 is targeted at speech that is uttered only by officials in their official capacity and, moreover, is targeted only at a very narrow range of potential statements, which are statements with regard to procurement decisions and/or investment decisions, rather than, as we heard in earlier sessions, statements that are in their generality critical of Israeli policy or, indeed, of British policy with regard to the middle east. For all those reasons, there is not a legal problem with regard to clause 4, but there is a political imperative behind clause 4, and if I had a vote on the matter, which I do not, I would vote for it enthusiastically.

[Alex Norris]

Q On multiple occasions on the face of the Bill, the Secretary of State has reserved powers to change provisions in the Bill by regulations. Do you think that approach has been used too liberally? Has it been used appropriately? Are you comfortable with that degree of ability for the Secretary of State to vary things later down the line?

Professor Tomkins: I think I am. It is always a delicate balance between what goes into primary legislation—what goes on the face of the Bill, as we say—and what can be done after an enactment by Secretaries of State or Ministers, using the various powers that are crafted by the Bill. The balance that has been struck in the Bill is appropriate and reasonable—yes, I think it is.

Francis Hoar: I think it goes too far in some respects. Generally speaking, Parliament has been too ready—this goes back over many decades and is certainly not just the case under this Government and in this Parliament—to give the Government powers to give devolved legislation, particularly with Henry VIII powers, which the Government accepts there are in this case. I think Mr Cragg KC mentioned the unlimited power of the Minister to order the maximum financial penalty, and there is good reason for the House of Commons to restrict that to a particular maximum.

The particular concern I had was that although, wisely, the Bill does require advance scrutiny of the regulations, there is an exception in clause 3(2) and (5). The Government have given a good explanation as to why they may wish to add a country or territory to the list—the approved list or the disapproved list, whichever way you want to look at it—because, of course, Russia might invade Ukraine, and that is an obvious example. But they have not provided any explanation—certainly not a credible explanation—as to why we need clause 3(2), which includes adding, removing or amending a description of a type of consideration that can be taken into account by a local authority. There is absolutely no reason why that would ever be so urgent as to be needed without the advance scrutiny of the House of Commons. So clause 3(2), in my view, should not have an emergency provision. In clause 3(5), there is a very good reason for that; if the Bill is passed, one accepts the principle, and if one accepts the principle, these things should be able to happen.

Professor Tettenborn: I am entirely with Francis on that one. Certainly, the power to add countries actually is, again, quite skilfully guarded. I think people around this table will have noticed that it is subject to affirmative resolution—that is, it cannot pass merely by everybody not noticing when it is placed on the Table and not objecting to it; it cannot pass by inertia. I think that is a very sound part of the Bill indeed.

[Ms Qaisar]

Q Thank you to the panel for joining us today. I want to stick to clause 4, because I was really interested in the discussions on it. Some stakeholders have called it a gagging clause. I am really interested to learn what other options the Government could bring forward to achieve the clause’s aims. It is my understanding that if a Scottish Government Minister, for example, wanted to speak out against it, they would be unable to do so. They would have to turn around and say, “I’m not speaking on behalf of the Scottish Government, I’m speaking as an individual,” even if they were stood in the Scottish Parliament.

Francis Hoar: I have answered this fairly fully, but I think that that encapsulates why I am not convinced about clause 4, although I agree with both my colleagues on the panel that it is not likely to be disproportionate, because it falls within the earlier Strasbourg/French authority. These are public bodies, and there is a good reason why it would be proportionate to restrict them, but you have encapsulated why the provision is pretty useless: because all the Minister needs to say is, “I’m not going to speak on behalf of the Scottish Government.”

Now, I can absolutely see the logical reason why it is a good prohibition, because it is right, on the view of the Bill on this panel—although not among all your other witnesses—which is that the general objective is a sound objective. If that is right, it is fair enough to prevent Ministers in Scotland or Wales from making those sorts of pronouncements. But, in reality, what is it going to do? It is just going to mean that, basically, I will say that I am going to speak in a personal capacity.

Incidentally, on the drafting of the Bill, I am not entirely clear—I agree, again, with Mr Cragg on this—as to the relationship between clauses 4 and 1. Purely from a drafting point of view, that needs to be made clear. If the Government are suggesting that that should not apply to an individual speaking in an individual capacity, there is no reason why the Bill cannot say so. I am just not clear. The wording of clause 4(1) is that

“the person intends to act in a way that would contravene section 1”.

I am not convinced that it applies only if that person has been given a notice. As Andrew said, I do not read that from the Bill. I am not entirely clear what that means. It needs to be clarified as a matter of drafting if clause 4 is to stay.

Professor Tettenborn: I would like a clarification there as well, I must admit. It seems to me that there may be quite an important difference between someone who makes a pronouncement and someone who says something and adds, “but I am speaking personally.” That concerns how we are viewed abroad. It is very good for the conduct of the foreign relations of this country that people abroad know that they can deal with the UK Government as a UK Government. They obviously know that there will be people who disagree with the Government’s foreign policy, but I see nothing wrong in saying that if an official is going to do that, it might be a good idea if they said, “I am speaking in a private capacity.”

Oral Answers to Questions

Alex Norris Excerpts

Monday 10th July 2023 Commons Chamber

[Alex Norris (Nottingham North) (Lab/Co-op)]

Up and down the country, communities are struggling with the Tories’ mortgage crisis and the cost of living crisis. Those hit hardest often live in communities that were promised levelling-up funding, yet the Government sit on £1 billion of promised levelling-up fund money—money that could make a difference to those who need it most. Where on earth is it? Will the Government commit today to starting a process for the allocation of it?

[Dehenna Davison]

I find myself a little confused, because we got a lot of criticism from the Opposition about round 2 of the levelling-up fund. They wanted us to get round 3 right, and we are taking the time to ensure that we get round 3 allocations right. We will, in due course, announce details on how we will allocate that money, which will change people’s lives.

Economic Activity of Public Bodies (Overseas Matters) Bill

Alex Norris Excerpts

2nd reading
Monday 3rd July 2023 Commons Chamber

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to close this challenging but important debate on behalf of the Opposition. The debate has covered Britain’s place in the world, freedom of speech, human rights, genocide and a whole range of other important topics.

At the heart of the debate lies a central question: does the Bill balance legitimate, strongly held and well-meant desires to challenge behaviours overseas on principled grounds against important protections for particular nations or regions in the face of disproportionate treatment? I am afraid the answer is no.

We believe there should be legislation to frame boycott and divestment-type activities—legislation that allows communities to decide where their money goes—in response to human rights or genocide concern, while ensuring such decisions are made equitably and consistently so that the world’s only Jewish state, for example, is not singled out and targeted. This is consistent with our long-held stance against the boycott, divestment and sanctions campaign against Israel.

Colleagues can have confidence that we believe in such framing legislation, because the shadow Secretary of State, my hon. Friend the Member for Wigan (Lisa Nandy), and I tabled such amendments to the Procurement Bill in Committee, some months ago, and on Report. The amendments were rejected by the Government, but the Bill tabled in their stead, the Bill before us, is considerably worse than the option we offered.

My hon. Friend the Member for Birmingham, Selly Oak (Steve McCabe) called the Bill a “dog’s dinner.” He is generally not a man to disappoint, but his sentiment was one of disappointment, which was echoed in the remarkable contribution of my right hon. Friend the Member for Barking (Dame Margaret Hodge), who spoke of the frustration of those, including the hon. Member for Birmingham, Selly Oak, who want to see legislation that the House can unite behind. We do not have that currently.

There has been a range of other excellent contributions. The Chair of the Foreign Affairs Committee, the hon. Member for Rutland and Melton (Alicia Kearns), referenced clause 3(7), as did my hon. Friend the Member for Hammersmith (Andy Slaughter) and the hon. Member for Meon Valley (Mrs Drummond). This subsection breaks the distinction between the state of Israel and the occupied territories, which is a significant change in Government policy, and it asks significant questions about our compliance with UN resolutions. The Minister must account for that change of policy and assuage some of those concerns in her summing up.

The right hon. Members for Middlesbrough South and East Cleveland (Sir Simon Clarke) and for Chipping Barnet (Theresa Villiers) said that foreign policy matters of this nature are not for local decision makers. Well, we do not think that is right. My hon. Friend the Member for Sheffield Central (Paul Blomfield) made a very strong argument about how it has worked and been effective in his community in the past. In a bolder argument, the hon. Member for Edinburgh East (Tommy Sheppard) rightly said that it is our communities’ money. I, like many colleagues, am a member of the local government pension scheme—that is our money; and I am a council tax payer—that is our money. It is not unreasonable that we might want to have a say in how it is spent.

[Nadia Whittome]

This Bill is anti-democratic and anti-human rights. It frustrates peace efforts in the middle east and it is an obstacle to social justice everywhere. As such, it has been condemned by a huge range of civil society organisations, including trade unions, charities and faith organisations. Does my hon. Friend agree with them and with me that for those reasons the Bill must not receive a Second Reading?

[Alex Norris]

Yes, I think that what has been striking is that colleagues who come at this from very different places and parties have reached that conclusion of the inadequacy of this legislation. I hope the Government will reflect on that. The hon. Member for Brigg and Goole (Andrew Percy) asked what our alternative was. The hon. Member for Gloucester (Richard Graham) made a powerful contribution, but I slightly challenge his suggestion that we were saying that we should rip this up in an unspecified way. That is not the point we are making. We are saying that we tabled an amendment to the Procurement Bill that we think is better. If the Government think it is technically inadequate, we would be happy to work with them to improve it. What we do know is that it is much better than what is before us today.

My hon. Friends the Members for Middlesbrough (Andy McDonald) and for Cynon Valley (Beth Winter) made important points about what this Bill does to the devolved regional and national settlements—it challenges and presses them greatly. The right hon. Member for Preseli Pembrokeshire (Stephen Crabb) and the hon. Members for Harrow East (Bob Blackman) and for Strangford (Jim Shannon) made powerful anti-BDS cases. I hope the position that my hon. Friend the Member for Wigan (Lisa Nandy) and I have taken on that assuages some concerns. My hon. Friend the Member for Strangford is my friend and we should always be honest with our friends, so let me say that he has done peerless work in this place on tackling the persecution of Christians abroad and he should have real concerns about how this legislation would fetter such activities in the future.

I will cover some more of the contributions as I get through the rest of my points, but certain concerns must be addressed by the Minister in her closing remarks. First, which of the two possible readings of clause 1 do the Government intend? Does the “territorial consideration” provision mean that not wishing to procure from Xinjiang is unacceptable but that not wishing to procure from the entire nation of China would be acceptable? Or does it mean that all actions of all foreign Governments are beyond the scope of local decision makers? How, at this stage, can it be satisfactory that there is ambiguity? As we have heard, this is legislation that will head straight to the courts. Secondly, to accept clause 3 is to exalt the Secretary of State ahead of any other public representative, as my right hon. Friend the Member for Hayes and Harlington (John McDonnell) said. It is to set aside the mandates of the Mayor of the West Midlands, the Mayor of Greater Manchester or of the leaders of councils in favour of the Secretary of State. It is to give that person, whoever they may be, sole arbitration of human rights abuses, of genocide. That should give all of us pause, but it is worsened by clause 4, the gagging clause, which my hon. Friends the Members for Sunderland Central (Julie Elliott), for Liverpool, Riverside (Kim Johnson), for Leeds East (Richard Burgon)—

[Sam Tarry (Ilford South) (Lab)]

We heard a powerful and compelling contribution from my neighbour, my right hon. Friend the Member for Barking, about pernicious political thinking behind this Bill. Does my hon. Friend agree that that has happened multiple times? We are talking about a smackdown on democracy. We had the so-called “gagging Bill”, which was about gagging charities and became the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014; in 2016, we had the wrapping up of trade unions in even more red tape; and, recently, we have had more attacks on trade unions and the right to protest. Are the Government not crushing dissent on the part of any organisation or body that wants to challenge them?

[Alex Norris]

I am grateful for that intervention. My hon. Friend almost reads to the end of my paragraph, so I will address that point presently. The point on gagging clauses was also made by my hon. Friends the Members for Leeds East and for Bradford East (Imran Hussain), and the hon. Members for Reigate (Crispin Blunt) and for Ruislip, Northwood and Pinner (David Simmonds). The Bill means that not only does the judgment of the Secretary of State supersede any and all local leaders, but the Government seek to ensure that those leaders are not even allowed to talk about their desire to challenge human rights abuses or not to consume settlement goods. The Government are taking away not only the right to act, but the ability to speak. As my hon. Friend the Member for Ilford South (Sam Tarry) says, that is consistent with a legislative programme designed to whittle away at the civic space, with the Trade Union Act 2016, the 2014 Act, the Public Order Act 2023 and more. What we have in front of us is an unacceptable fetter on free expression.

Separately, but no less importantly, the Bill will, as the right hon. Member for North West Hampshire (Kit Malthouse) said, have consequences for billions of pounds in local government pension funds. Any hard deadline that is imposed on them to change their operations in accordance with new law could be deeply destabilising, and the Minister ought to talk about how much she has looked into that impact. We know that at the moment a pension fund makes a divestment decision on a financial ground that relates to territories named in the Bill, that decision will be challenged in the court as a moral judgment. That will bind up our pension funds in court case after court case.

Let me turn to an issue that has had little airing in the debate so far and will have a lot more to run. Through clause 7, the Bill permits extraordinary powers to compel information—powers that demolish long-held legal privileges. It is not proportionate to hand to the Secretary of State even stronger powers to compel information from public bodies than the security services have. Surely the Government see the unsustainability of that position. As detailed by Labour and other colleagues, these are weighty concerns that make the Bill unacceptable in its current form.

But there is an alternative, as covered in our reasoned amendment. Our country has a proud history in the development of modern international humanitarian law, from the ashes of world war two to the creation of the United Nations and the role that we continue to play on the world stage. We have always defended the fundamental and inalienable rights of all human beings. It is vital that procurement decisions made in respect of such rights are then applied across the board to prevent unethical actions against specific states and to ensure that common actions have the greatest impact. That could be readily achieved by requiring public bodies to produce a document that sets out their policy on procurement and human rights, and for that to be developed in accordance with guidance published by the Secretary of State. That would ensure consistency in how contracting authorities decide on such matters.

What would that suggestion mean in practice? The practical effect would be to make it clear and unambiguous that if a public body does not wish to procure goods from Russia because of President Putin’s abhorrent human rights abuses in Ukraine, the law will be on its side. If that same body does not wish to procure services from Xinjiang because of the appalling treatment of Uyghur Muslims, the law will be on its side. But if a public body acts only against a particular state—let us say the world’s only Jewish state—while turning a blind eye to human rights abuses elsewhere, such actions would be illegal. We offer this workable solution to the Government and I hope the Minister picks it up. If colleagues do not hear that in the Minister’s response, I encourage them to vote in favour of the reasoned amendment tabled in my name and the names of my right hon. and hon. Friends.

Co-operatives and Alternative Businesses: Local Authority Support

Alex Norris Excerpts

Tuesday 20th June 2023 Westminster Hall

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to serve under your chairship, Mr Dowd. I refer colleagues to my entry in the Register of Members’ Financial Interests, as I am a Labour and Co-op Member of Parliament and because my wife is the assistant general secretary of the Co-operative party.

I commend my hon. Friend the Member for Hackney South and Shoreditch (Dame Meg Hillier) for securing this debate and for her leadership of it. She started by saying that there is a great need and enthusiasm in this country to move to more local models and away from top-down planning to local delivery. That was really on the money, as was her point about the huge input that the co-op sector already makes to our economy. She also referred to the frankly unrealised potential of the sector, which I will talk about shortly. However, as the theme of the debate is the role of local authorities, I thought it was wonderful that she pulled out examples from across Greater Manchester, South Yorkshire, Birmingham and her borough of Hackney where local, regional and sub-regional leaders are taking ownership and putting co-ops at the heart of their local economy and their local economic development.

I believe, and this came through in what my hon. Friend said, that we are at a co-op moment. We are showing that leadership is local and developing, but that needs to be matched—perhaps this is a theme of today’s debate—with a national commitment.

My hon. Friend was ably supported by my hon. Friend the Member for Neath (Christina Rees), who, in my head, is synonymous with her 100-plus appearances for Wales in squash, as well as with the co-operative movement in Wales. She listed a number of people who have been the backbone of that movement, but she ought to have her place in that pantheon. I knew that she would not disappoint us and would talk about the Marcora law, which is particularly germane to today’s debate.

Whether a Member is from the north-east, like the Minister, from the east midlands, like me, or from south Wales, like my hon. Friend the Member for Neath and my hon. Friend the Member for Cynon Valley (Beth Winter), a common theme is that, in recent decades, we have felt the huge loss of businesses, industries or enterprises that are at the heart of our community, and we know the absolute hole that that creates. My hon. Friend the Member for Neath, building on the Italian example, suggested a way that we can perhaps fill that hole and stop that happening. I am interested to hear the Minister’s reflections on that. Whether she is addressing the current Government or a future one, my hon. Friend will continue to press that case hard. In giving the example of Cwmpas, she made a case—this was picked up by my hon. Friend the Member for Cynon Valley—about the impact of support and input at a national level to help different models of enterprise to develop, and that that can be highly effective.

My hon. Friend the Member for Cynon Valley picked up on that theme by talking about the work of the Welsh Government and Cwmpas. However, what I also took from what she said is that the co-operative economy and co-ops’ place in the economy are as a deliverer of really important social programmes. She mentioned net zero and energy, as well as the cost of living and tackling poverty. I believe that co-ops are at the root of tackling those challenges, which is why I am a Co-operative Member, and that local authorities should act as a facilitator. I associate myself with everything that she said about Tyrone O’Sullivan. I know that a lot of pain has been felt by Welsh colleagues at his passing. For all the reasons she mentioned, his place is very much in a co-op debate, and I am glad we have had the chance to recognise that.

I will make a couple of points of my own. Efforts to support the growth of co-ops and alternative businesses are vital, because we know the difference that those business forms can make. Co-operatives, for example, put economic power in the hands of local people, and ensure that the benefits of economic growth are felt by those who help to create it. I will be interested to hear the Minister’s reflections on that, because I think that is what we are talking about with levelling up. I know that, perhaps politically, the Minister is not co-operative, but I suspect that she is by instinct. I am interested to hear her views.

Co-ops are grounded in shared values that put communities, members and workers together in the driving seat of a fairer, more ethical way of doing business, where issues such as paying a fair share of tax and protecting our natural environment are at the core of how things are done. Co-operatives are good not just for those who depend on them, but for business. They are shown to be more resilient. Co-ops are twice as likely to survive the first five years of trading than other start-ups. As my hon. Friend the Member for Hackney South and Shoreditch said, they are more ambitious, with 61% expressing a desire to grow, as opposed to 53% of businesses more generally. Where workers and members of the co-operative have a true stake and say in the success of business and, crucially, have a share in the rewards, they are more productive.

So co-ops are resilient, ambitious and productive—qualities that we so badly need in our economy, especially in these uncertain times, and also to smooth out and avoid uncertain times in future. As colleagues have said, this is already working, with 7,000 co-operatives across the country turning over around £40 billion a year. We believe that the sector can grow and that its benefits can be felt more widely by more people.

This is about a change of focus from economic growth built around low-paid insecure work that does not ride out economic uncertainty well and is concentrated in certain regions of the country. Instead, we are talking about an “everyone in” approach, providing grassroots growth, created everywhere, by everyone, for everyone, but that will not happen by chance. Colleagues have used good examples of where it has worked well. At the root of that, there has been a degree of national, regional, sub-regional or local leadership, and it requires that proactivity. I hope we will hear some of that in the Minister’s response.

For our part, we as the Opposition have an important ambition, shared with the Co-operative party, to double the size of the co-operative sector, to help build that sustainable growth. Colleagues will also have seen that our local power plan was announced by the Leader of the Opposition on Monday. Co-operation lies at the heart of that plan, which will put money and power—literally and figuratively—into people’s hands. We believe that when more people have a say and a stake, and greater ownership of the issues and decisions that matter to them, the balance of economic power shifts back in favour of people and communities—and my goodness, do we need some of that!

We have heard that local authorities and local government are taking a lead across the country. We have also heard from colleagues that local elections saw a record number of Labour and Co-op councillors elected. There are more than 1,500 such representatives across 80% of local authorities, so the case is being made at a local level more and more. However, we need to see that matched at a national level. When the Minister makes her contribution, I will be interested to hear what work her Department is undertaking, not just to support co-ops and alternative businesses in the here and now, but going forward, in terms of its ambition and belief for the sector. On levelling up, if there is anything the Minister could deliver in her role, it would be to help those sub-regional bodies—perhaps combined authorities and mayors—to deliver ownership hubs. There is clearly enthusiasm to do that.

What more help does the Minister envisage giving local authorities to ensure that they can play their role? There has been a pattern over the past decade or more of not prioritising alternative models. It has been the same old models delivering the same old outcomes. As a result, we have pent-up potential—we really need to realise that—and that plays out in Government focus and in a policy and regulatory framework that often inhibits the development of alternative models.

I hope that the Minister has heard, in contributions from colleagues and me, about the ambition and the potential, and the difference that it would make to the UK economy to unleash co-ops. We see the local leadership of this, and we now need to see some national leadership to match it.

Teesworks: Accountability and Scrutiny

Alex Norris Excerpts

Wednesday 7th June 2023 Commons Chamber

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to close for the Opposition in this debate.

Let me start by bringing us back to first principles. The Mayor of Teesside himself has requested a National Audit Office investigation into the Teesworks joint venture. That is backed by the Chairs of three parliamentary Select Committees. The Opposition, as hon. Members have heard, support it. The media support it. The only people who disagree with this are Ministers on the Treasury Bench and their Back Benchers. The purpose of the motion and the debate is to establish why the Government have taken the eccentric course of rejecting an NAO-led review. Is there a sound public policy reason or is it a partisan decision?

My colleagues have made very strong cases. My hon. Friend the Member for Sunderland Central (Julie Elliott) set out in significant detail the pain the north-east has felt over 30 years of austerity; I would have thought that Conservative Members would have reflected on that, but they did not. My hon. Friend the Member for Stockton North (Alex Cunningham) reflected on the region’s potential, which makes that pain doubly saddening. My hon. Friends the Members for Washington and Sunderland West (Mrs Hodgson), for West Lancashire (Ashley Dalton) and for Warwick and Leamington (Matt Western) raised a range of very serious questions that simply must be addressed by a review that everybody can have confidence in.

I associate myself with what my hon. Friend the Member for Wansbeck (Ian Lavery) said about journalism and the courage of those various journalists who have taken this issue on. Despite all the criticism they have had from the players involved, they have stood up, done their job and shone a light on the issue, and we are having this debate today in part because of that.

My hon. Friend the Member for Middlesbrough (Andy McDonald) set out an extraordinary, deep and detailed case, worth listening to by those colleagues who have sought to shout him down, both today and previously. He has shown incredible courage, knowing what is right for his constituents and doing what is right for his community when it would have been easier for him not to. There will have been days when he got out of bed, knowing the barrage that he was going to face, and it would have been easier not to, but he has too much courage to do that, and I salute that.

I turn to colleagues on the Government Benches. The hon. Member for Sedgefield (Paul Howell) said it was inconvenient that we were bringing this motion today. I understand that, but I gently say that it is for the Opposition to ask the questions and for the Government to answer them—they cannot ask the questions as well. The hon. Member for Hartlepool (Jill Mortimer) hit the nail on the head when she said that the Mayor has asked for this audit. It is not so unreasonable that we should ask for such an intervention when the Mayor himself has done so.

The hon. Member for Stockton South (Matt Vickers) asked, as did the Minister in his opening speech: why are we departing from established practice? This is the first time such a thing has happened. We have never had such an incident involving an elected Mayor or a mayoral development corporation. Of course whatever we do will be a new and novel approach, because we have never done it before. Falling back on false equivalence simply does not work.

I turn now to the right hon. Member for Middlesbrough South and East Cleveland (Mr Clarke), who made a bombshell contribution to this debate when he made it clear that he was basing his decision today on the discussions he has had with civil servants and the advice they were able to give him as a Back Bencher—advice that he knows we have not had any access to. At the root of the motion is the point that we need to know the information that is clearly available to some but not to others.

[Mr Simon Clarke]

I am afraid the hon. Gentleman has misunderstood what I was saying. I was saying that Ministers have not been advised by the civil service that the threshold has been met. That is a matter of public record. It is in the letter the Secretary of State sent to Ben Houchen at the end of last month and it was repeated by my hon. Friend the Minister at the Dispatch Box during his opening remarks. Ministers have been advised by the civil service that no such threshold for a best-value investigation has been met. That is not our view; it is the civil service’s view.

[Alex Norris]

I chirped during the right hon. Gentleman’s earlier contribution to ask him how he knew. I took from that—if I am wrong, the record will show otherwise—that he had had those conversations. Frankly, I think that that muddle is at the root of the issue.

Of course, this issue cannot be decoupled from the Government’s supposed commitment to levelling up the country—a commitment on which, as has become increasingly clear over the past 18 months, the Government cannot and will not deliver. We have seen a levelling-up White Paper which talks more about a Medici-style renaissance that a real commitment to our communities; a bodged levelling-up fund that locked deprived areas out from getting the money that they need; and much-heralded levelling-up directors quietly canned even though they were supposed to champion the revitalisation of our nations and regions. What a waste. What a waste of the pent-up potential of our regions, towns and cities which is waiting to be unleashed if only the Government were serious about delivering on their promise. Once again from this Department, it is all press releases, no delivery.

Teesside was supposed to be the flagship, the proof of concept, which makes the concerns expressed today all the more crucial. If this is what levelling up is, who benefits from it? Who is it for? The questions keep mounting up, as colleagues have said. Reports in the media outline how millions of pounds of taxpayers’ money have supported a project in which two private developers now hold a 90% stake despite seemingly never having entered a competitive process, and how those developers have taken significant dividends, outsizing their investment in the project. People rightly wonder how that has happened, who sanctioned it, whether value for money has been delivered, whether these concerns are legitimate, and if so, why has it taken dogged reporting on the issue, and colleagues in this place, for them to come to light?

Those are crucial questions that require answers, but rather than call in the National Audit Office, as the Mayor himself asked for, the Secretary of State has chosen to set up his own review, set the terms of that review and appoint the panel himself. We are now in the ridiculous situation where a flagship Government project that is facing serious allegations of failures in accountability is subject to a review set up and appointed by the Government themselves, and we are told that that will give the public the reassurance that they need. How can the Secretary of State expect the public to have confidence in that process? It is no wonder he did not come today and stand up for it, and instead sent the Under-Secretary of State for Levelling Up, Housing and Communities, the hon. Member for North East Derbyshire (Lee Rowley), whom I hold in high regard, into an impossible situation.

Let us face it: the Government are on their way to court for a statutory review that they themselves set up, because they are doing anything they can to avoid being candid in it. Now, they ask us to trust them and put our confidence in a review that has not even those safeguards and powers, and they are surprised when we, the media and the public say that that is simply not good enough. We have waited for the answer today; it has not been forthcoming.

It is critical to public trust that the Government are transparent about the decision making that led to this process being adopted. The motion before us seeks to do just that by calling on the Government to release correspondence and communications pertaining to the decision not to order an independent NAO-led investigation and instead to commission their own review. For the sake of public confidence that all decisions have been made in good faith, and with the express intent to get the answers that the people of Teesside deserve, the Government should be open about how they reached their decision. That is all the more important because this does not relate to Teesside alone; it is the first project of its kind, with far-reaching implications for Mayors, combined authorities and development corporations. We need to know the truth now so that we can learn the lessons later.

The Government have had the chance today to establish a credible public policy reason why the Mayor’s own self-referral to the NAO, supported by everyone but the Government, was rejected. We did not hear any such reason from the Minister; we heard false equivalence about processes pertaining to different public bodies. Unless the Under-Secretary of State for Business and Trade, the hon. Member for Thirsk and Malton (Kevin Hollinrake) takes this opportunity to change course, we must use Parliament to compel the release of the information behind the decision. We must vote for the motion.