Economic Activity of Public Bodies (Overseas Matters) Bill

Baroness Noakes Excerpts

Committee stage
Wednesday 17th April 2024 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I share many of the concerns explained by the noble Lord, Lord Wallace of Saltaire. That is why I tabled Amendments 11 and 12, which are in this group. Like the noble Lord, I thought this Bill was about public bodies, because that is what appears in the title. He read out the definition that we are invited to use in Clause 2, which is the definition in Section 6(3) of the Human Rights Act. It is clear from that that it can capture private sector bodies, which is why I first got interested in this topic. I tabled Amendment 12 in order to probe the extent to which private sector bodies are going to be dragged within the ambit of the Bill.

I have done more research on that since Second Reading. Like the noble Lord, Lord Wallace, I have been ploughing through some of the legal cases on the definition in the Human Rights Act. It is clear that private sector bodies can be captured, but it is also probably fair to say that the courts have been tending to give a fairly narrow interpretation of that, so that private sector companies have been caught only in relation to where they are very clearly involved in delivering or exercising public functions.

Amendment 14, tabled by the noble Lord, Lord Collins, seeks to ensure that bodies caught within the definition in respect of public functions are captured only for the extent of public functions. It seems to me that that is unnecessary because of Section 6(5) of the Human Rights Act, which says much the same thing in a slightly different way. I would go further and suggest that private sector bodies, and private sector companies in particular, should not be within the ambit of the Bill.

When I was carrying out some research, the one thing that I did learn was that the definition of public authority is not clear. In fact, probably the only clear thing is that if any body is in doubt, it has to take its own legal advice. The noble Baroness, Lady Grey-Thompson, referred to this problem in her Second Reading speech, as did the right reverend Prelate the Bishop of Southwark. I shall make a plea on behalf of SMEs, which I know are very close to the heart of my noble friend the Minister: they find uncertainty very hard to bear, so having a definition which is uncertain seems to be a problem.

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[Baroness Noakes (Con)]

My Lords, on the previous group of amendments I explained that I was concerned about the lack of certainty involved in the definitions. However, I feel the debate on this group has engineered more uncertainty than in fact exists.

My noble friend the Minister explained that the Government used the Human Rights Act definition because there is 25 years of jurisprudence, and the noble Lord, Lord Stevens, helpfully suggested that the Government update their understanding of what that definition means. I believe that most of the bodies know whether or not they are subject to the public sector duty involved in the Human Rights Act—not all of them, and there are certainly issues at the margin, but we need to get this in proportion. For example, I suspect that most of the bodies that the right reverend Prelate referred to already know whether or not they are subject to the human rights duty in Section 6 of the Human Rights Act. So although I continue to believe that clarity is important and that we need to find ways of achieving that clarity, we should not overstate the difficulties of establishing who is within the terms of the Bill and who is not.

[Baroness Blackstone (Lab)]

My Lords, could the Minister comment on the actual functions of some of these so-called public bodies? I assume that secondary schools will be regarded as public bodies. They have a wide range of functions focusing on educating the children who are pupils there, but they are also responsible for the development and improvement of their school buildings. Let us take the example of a school that has an extremely rich alumnus who wishes to reward it for the excellent job it did in educating him, and allocates to it a very large sum of money to put up a completely new building: will that be caught by the Bill’s scope, so that the school has to decide whether it will be found to be breaking the law because it takes into account moral and ethical considerations in its purchase of goods for providing a very large new school building? These are the sorts of questions that people will face, and I am not sure that the governors of most state secondary schools will be terribly familiar with Section 6 of the Human Rights Act; nor will they find it that easy to get advice about it. Perhaps the Minister could comment on that sort of situation.

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[Lord Boateng (Lab)]

I think the Minister, or those who advise her, has misunderstood the point I raised in relation to the orchestra. The orchestra is putting on a concert version of “The Rite of Spring” as part of a Stravinsky festival. That festival is being held in a number of cities throughout the world. It is booked to appear at the new opera house in Dubai. It puts out a tender for ballet companies to provide the dance section of “The Rite of Spring” for this concert version. It specifically precludes in its procurement—so perhaps those who advise the Minister can reflect on this—the national ballet company of a country that has recently invaded a sovereign nation because it does not wish reputationally to be linked with that national ballet company. That is quite clearly a procurement. Is the Minister saying that that would not be covered by the Act and that the fact that the orchestra concerned receives a proportion of its funding from the public purse does not make it fall within the ambit of the Act? It is to that question specifically that an answer would be helpful. If she cannot give that answer, it demonstrates very clearly the concern about ambiguity that all contributors to this debate have articulated.

[Baroness Noakes (Con)]

The noble Lord, Lord Boateng, has concentrated on the procurement decision, but before you get to decide whether a procurement decision is relevant, you have to decide whether it is a public authority—so it will come back to whether the orchestra is a public authority before getting to any issue about whether a procurement is covered.

[Lord Boateng (Lab)]

That is what we want an answer to: is it a public authority for that purpose because it receives public funding?