Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Wolfson of Tredegar Excerpts

2nd reading
Tuesday 20th February 2024 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Kennedy of The Shaws, even, or perhaps especially, when we disagree.

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

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

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

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

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

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

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

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

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

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

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

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

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

[Baroness Kennedy of The Shaws (Lab)]

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

[Lord Wolfson of Tredegar (Con)]

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

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

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

Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Wolfson of Tredegar Excerpts

Committee stage
Wednesday 20th March 2024 Lords Chamber

[Lord Mann (Non-Afl)]

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

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


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

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

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

[Lord Wolfson of Tredegar (Con)]

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

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

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

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

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

[Lord Collins of Highbury (Lab)]

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

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

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

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

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

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

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

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

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

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


which the noble Baroness, Lady Fox, talked about,

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

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

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

--- Later in debate ---

[Lord Johnson of Marylebone (Con)]

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

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

[Lord Wolfson of Tredegar (Con)]

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

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

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

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

[Lord Collins of Highbury (Lab)]

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

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

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

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