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Economic Activity of Public Bodies (Overseas Matters) Bill

Volume 838: debated on Tuesday 14 May 2024

Committee (4th Day) (Continued)

The Schedule: Exceptions

Amendment 30

Moved by

30: The Schedule, page 13, line 5, at end insert “and conventions, including the Genocide Convention, the Universal Declaration on Human Rights or any United Nations Security Council Resolution supported by the United Kingdom.”

My Lords, in the unavoidable absence of my noble friend Lady Blower, and at her request, I beg to move Amendment 30, which is intended to add to paragraph 6 of the schedule.

The paragraph, which we discussed in Committee last week, permits a decision-maker to take into account whether the decision might put the UK in breach of its obligations under international law. In the last debate, we discussed the nature of the international law obligations comprehended in this paragraph and the question of who determines whether there has been a breach of them. I do not seek to reopen that debate; this amendment is not dependent on the outcome of it.

The amendment would make it clear that the decision-maker will be permitted to take into consideration and reject a tender or an investment that the decision-maker reasonably considers might put the UK in breach of its obligations under the genocide convention, the Universal Declaration of Human Rights or any UN Security Council resolutions supported by the United Kingdom. The amendment would still stand and have force, whether or not the Government accept amendments along the lines suggested by the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Verdirame, identifying what entity appropriately determines what amounts to a UK breach of international law. Amendment 30 merely clarifies that the conventions and resolutions mentioned in it are to be regarded as UK obligations.

I find it impossible to see what conceivable objection there could be to identifying matters of such grave importance to a law-abiding nation. The rationale is so obvious that I cannot think of anything more to say in support of my noble friend Lady Blower’s amendment, and I look forward to hearing that the Minister will support it.

I will now speak to Amendment 32. Paragraph 8 of the Schedule permits the potential decision-maker on procurement to take into consideration certain forms of “labour-related misconduct”. The problem is that that is a very limited list. We touched on that in Committee last week. In the last debate, the Minister asked me to provide further details on whether the violations of core labour standards would be covered by the provisions of paragraph 8. I looked at that matter again and did not take up her kind invitation to write to her, because Amendment 32, which was not before us last week, makes clear the distinction between the core labour standards identified in the amendment and the standards set out in paragraph 8.

I will explain. Paragraph 8 is confined only to conduct that would amount to a criminal offence in relation to slavery or human trafficking orders, failure to pay the national minimum wage and labour market orders under the Immigration Act. That list does not currently permit those making procurement and investment decisions to have regard to the fundamental labour standards binding on all countries by virtue of their membership of the ILO. As a matter of convenience, we can take those standards from Articles 399(2) and 399(6) of the trade and co-operation agreement—the Brexit deal—signed by our then Prime Minister in 2020, where they are conveniently summarised.

The provisions commit the UK to respect, promote and effectively implement the ILO Constitution, which includes the Declaration of Philadelphia of 1944, the

“ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted at Geneva on 18 June 1998 … the ILO Decent Work Agenda as set out in the 2008 ILO Declaration on Social Justice for a Fair Globalization”,

and the fundamental ILO conventions. The fundamental ILO conventions are those identified in those provisions of the Trade and Cooperation Agreement and in the amendment. They protect freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the effective abolition of child labour; the elimination of discrimination in respect of employment and occupation; decent working conditions for all with regard to, inter alia, wages and earnings, working hours, maternity leave and other conditions of work; health and safety at work, including the prevention of occupational injury or illness and compensation in cases of such injury or illness; and, finally, non-discrimination in respect of working conditions, including for migrant workers.

The only point in that list which is included in paragraph 8 of the Schedule is the second point that I mentioned: the elimination of all forms of forced and compulsory labour. That is the only point at which my amendment and paragraph 8 coincide, because paragraph 8 of the Schedule deals with slavery and trafficking. However, all the other elements of the fundamental labour standards are outside paragraph 8, even though they are binding on every country which is a member of the ILO by virtue of its membership and, regardless of whether they have ratified these conventions, they are matters of customary international law. These are vitally important standards, as the UK government representatives will doubtless reiterate at the International Labour Conference of the ILO, which takes place in June.

Plainly, paragraph 8 does not go far enough. International labour standards are important for ameliorating the conditions of workers in less developed and authoritarian regimes, and, from a more self-interested perspective, for diminishing the extent to which UK manufacturers and UK suppliers of services and works are undercut by competitors seeking to, as I put it on the last occasion,

“exploit cheap labour, poor conditions, inadequate standards, lack of enforcement, and powerless trade unions”.—[Official Report, 7/5/24; cols. 23-24.]

I refer to the examples I gave on the last occasion, but I will not repeat them.

Reverting to the point made by the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Verdirame, on the last occasion, identification of whether there has been a breach of a fundamental ILO convention is not here left to the lay opinion of the decision-maker in the public entity. The ILO has extensive and long-established machinery for determining whether each state is in conformity with each of the fundamental conventions and each of the conventions that state has ratified. The UK fully participates in that machinery and those determinations. Why, then, I ask rhetorically, should the minimum standards of the fundamental international labour conventions, which are all ratified by the UK, not be included in the list of legitimate labour-related misconduct which procurement decision-makers can take into account under the Bill? I wait with anticipation to see whether the Minister will seek to justify their exclusion.

My Lords, when we debated paragraph 6 of the Schedule in an earlier group, I argued that it was inappropriate to include an international law exception in the Bill. Therefore, it will not surprise the noble Lord, Lord Hendy, to find that I do not support the extension to paragraph 6 that his Amendment 30 seeks to achieve.

The briefing sent by the Palestine Solidarity Campaign asserted that without this amendment, the Bill could compel public bodies to contravene the genocide convention. This extraordinary statement was explained in the context of the much-publicised opinion of a number of UK lawyers, including the noble and learned Baroness, Lady Hale, that the International Court of Justice had ruled that there was a plausible case that Israel has committed genocide. As the then President of the ICJ subsequently made clear, this is a complete misinterpretation of the ICJ’s judgment. Judge Joan Donoghue, the then President of the ICJ, has stated that the court decided that the Palestinians had a plausible right to be protected from genocide and that South Africa had the right to present that claim in court. However, to correct something that is often said in the media, the court did not decide that the claim of genocide was plausible. So the items of international law referred to in the amendment, including the genocide convention, basically have the name “Israel” etched on them. Whether by design or otherwise, this amendment would simply make it easier for public authorities to find excuses to boycott Israel and it would be very damaging if this amendment were accepted into this Bill.

Amendment 32, tabled by the noble Lord, Lord Hendy, raises rather different issues. I am conscious that I am in dangerous territory because of the acknowledged expertise in labour law of the noble Lord compared with my ignorance of labour law. However, it is my understanding that the ILO conventions do not have direct effect in the UK. I thought that we achieved compliance through our domestic legislation. The noble Lord spoke about ILO matters on the last Committee day and, while he made the point that the UK is bound by the ILO conventions, I do not think that he claimed that they had any direct effect in UK law.

If I am correct, this amendment is a very unwelcome addition to the Bill because it seems to give full legal effect to the ILO conventions directly. These conventions are not drafted as stand-alone laws but in rather broad terms. They lack a lot of definitions and the language is often rather vague. That is why national Governments have to adopt them using their own legislation. I am not speaking against the ILO conventions; I have no views one way or the other on the conventions. My point is that we comply with these conventions through our national law and that law is the foundation of labour-related misconduct, which is covered in paragraph 8. It seems to me that paragraph 8 means that we can hold overseas suppliers to the same standards to which we hold UK suppliers. In particular, it aligns with the provisions of the Procurement Act which was passed last year. That is a wholly proper basis for this Act, rather than some broader concept of principles that cannot be read directly into our law.

My Lords, I rise to offer a few remarks on these two amendments.

Amendment 30 does not really extend what paragraph 6 already does, because the expression “international law” in paragraph 6 includes everything that Amendment 30 mentions. My criticism of it, aside from the points that were discussed on day 3, is that it is just redundant. “Convention” is just another term for “treaty” and “obligations under international law” will include obligations arising under treaties to which the United Kingdom is a party. They will obviously include the genocide convention. The Universal Declaration of Human Rights is not a convention or a treaty but a resolution of the General Assembly, but it is widely believed to reflect customary international law and so is binding on the United Kingdom as customary international law.

The reference in the amendment to the Security Council resolutions is also unhelpful and confusing. Security Council resolutions will be binding on the United Kingdom provided that they contain decisions under Article 25 of the United Nations charter, because it is the decisions of the Security Council that are binding on member states. Those resolutions will be binding on the United Kingdom, whether we supported them or whether we abstained in those votes.

There are also resolutions that the United Kingdom would have supported on the basis that they were not binding. It would be rather odd if we had a domestic law provision that sought to extend the legal effects of resolutions that were supported by the United Kingdom, in the Security council, on the basis that they were not decisions under Article 25. So I do not think that Amendment 30 really works.

I am very sympathetic to what the noble Lord, Lord Hendy, is trying to do with Amendment 32 because, like him, I think that paragraph 8 is a little thin and needs to be beefed up. The difficulty with Amendment 32 is that it adds a different concept from what paragraph 8 deals with. As I believe the noble Lord pointed out, paragraph 8 deals with labour offences and labour-related misconduct. Its focus at the moment is on the conduct of the company in which a local authority is considering investing.

The focus of the obligations enumerated in Amendment 32, which are taken from Article 399 of the trade and co-operation agreement, is on the interstate level. They apply to the UK under ILO conventions and it is not clear how they would translate into relevant considerations as part of the scheme of paragraph 8. I will give an example. There may be a company that has very high labour standards and decides to invest in a country that has very poor labour legislation. As long as that company maintains its high labour standards, we would agree that it might be worth investing in, because it is setting a good example in a place where there are not many good examples. But that is quite a different set of considerations: the conduct of the company is a different consideration from the conduct of the country in which the company may be investing. At the moment, paragraph 8 focuses on the conduct of companies, whereas the new obligations in Amendment 32 would focus on the compliance with international law of the country where the investments are made. That is a different set of considerations.

I sympathise with what the noble Lord, Lord Hendy, is trying to do and I hope there may be other ways of achieving the objective of really beefing up the labour-related misconduct provision in the Bill, which I too think is inadequate—but I am not sure that Amendment 32, as it currently stands, would work.

My Lords, there is no one on the Liberal Democrat Benches tonight who is sufficiently expert in international law to intervene at length in this debate, so I will be very brief.

I read the discussions from the last evening we met—I apologise that I was unavoidably away—and I note the argument made that international law is not simply the law but a broad network of treaties, conventions and agreements to which the UK has become a party. Much of it was drafted in the formative years after the Second World War by British lawyers—Conservative British lawyers, under Conservative Governments—in which we played, as Ministers still like to say, a leading role. Some of us are now quite nervous that there are some elements within the current Conservative Party, some of whom are in government, who are not particularly committed to maintaining our established reputation as a staunch upholder of international law.

We on these Benches would suggest that the Government take back paragraphs 6 and 8 of the Schedule, take into account the criticisms that the noble Lord, Lord Verdirame, and others have made, and consider how we can ensure that these are strengthened and clearer, so that we can all agree that there is nothing in the Bill that encourages denigration of international law. All those involved in taking investment decisions should be quite clear that, in dealing with overseas investments, the framework of international law is one that should always be considered and accepted.

My Lords, I intervene briefly, not because I am an expert on international law but because I have a great sense of déjà vu about the way this debate is opening up by comparison with the previous debate. The issue seems to be the creation of uncertainty about what the law means. That was the issue dominating the previous debate: that the trustees of pension schemes would be left in a state of uncertainty if we did not put clearer language in the Bill. This debate is starting to go through the same process but in another area, where there could be uncertainty about what people do in interpreting this legislation before they make their decisions. We are opening up issues that the Government need to attend to, to make sure that the Bill is clear to the people who will be required to implement it.

My Lords, I put my name to Amendment 32 and I want to focus my main comments on it. The contribution from the noble Lord, Lord Verdirame, is a helpful one because he is focusing on strengthening this.

One of the problems, when we look at paragraph 8 and the implications of international conventions and the ILO, is that it is sometimes difficult to put it into concrete examples. The problem I had—and the noble Baroness, Lady Noakes, touched on this before—is when something goes into a territorial policy. I think of the debate we had on construction in Qatar and the British companies that were operating in building those sites, where the Qatari authorities were forced to have inspections by the ILO and forced to respond to a report that said their legal standards were not adequate. It could be that, at that time, a lot of investors, and perhaps even public authorities, would say that they should not be investing in companies that are adopting those sorts of laws—namely, those applied by the Qataris. Many textiles supply chains go into, for example, Bangladesh. The biggest fashion industry manufacturer is in Vietnam. The example of the Rana Plaza disaster, which we mentioned the last time we debated the Bill in Committee, required ILO intervention and British companies to say, “We will not invest”. Some of the most popular high street companies used strong leverage to get a change of policy by the Bangladesh Government. These are all legitimate concerns.

The fear is that this legislation will stop people making those sorts of decisions, or even expressing those sorts of opinions. It is that chilling effect again. Whoever replies to this debate—I thought it might be the noble Lord—should focus on the kind of concrete examples I have given, and give us an assurance that paragraph 8 includes all the things that my noble friend mentioned and that we will not have a situation where we are limited to very strict criminal things, which everyone accepts, such as slave labour and forced labour. There are lots of other examples. In the Rana Plaza example, people were forced to work in such dangerous conditions that hundreds lost their lives. Many of them were widows, leaving children to cope on their own.

It is important that we bring this debate back to some sort of reality. What are we talking about? What are the impacts of these sorts of things? We start off with a manifesto commitment on BDS, and now we are into the territory of saying that there will be a limit on what public bodies can do to ensure compliance with proper labour standards—things that this Government have been strongly advocating for.

My Lords, as I and my noble friend the Minister have set out in responses to previous groups in Committee, the Government take their obligations under international conventions and UN Security Council resolutions very seriously. This Bill is consistent with those obligations. I disagree with the noble Lord, Lord Wallace of Saltaire, that this Government do not take these responsibilities under international law seriously.

Amendment 30, from the noble Baroness, Lady Blower, would exempt from the ban considerations relevant to whether the decision in question would place the UK in breach of its obligations under international conventions, including the genocide convention, the Universal Declaration of Human Rights, and any UN Security Council resolution.

As my noble friend the Minister explained in an earlier group, where a judgment has been made that a party has breached international law, it is for the Government, and not a public authority, to determine the appropriate response. It is right for this Bill not to give public authorities discretion to engage in BDS campaigns based on their own interpretations of international law. I am grateful to the noble Lord, Lord Verdirame, on this point.

I will touch on the genocide convention in particular; I am grateful for the intervention of my noble friend Lady Noakes. Genocide is a crime and, like other crimes, whether it has occurred should be decided by competent courts and judges, after consideration of all the evidence available, in the context of a credible judicial process. It is the long-standing policy of successive UK Governments that judgment as to whether genocide has occurred is for a competent national or international court to determine, not public authorities.

I reassure the Committee that nothing in the Bill will prevent public authorities complying with the UK’s obligations under international conventions. It is not necessary to broaden the international law exemption in this way, and so I respectfully request that the noble Lord, Lord Hendy, withdraw the amendment of the noble Baroness, Lady Blower.

Amendment 32, tabled by the noble Lord, Lord Hendy, would broaden the existing exception for considerations that relate to labour-related misconduct. I assure noble Lords that the Government are of the view that employers who seriously violate the rights of their workforce are not fit to compete for public contracts. That is why the Bill already contains an exception to the ban for considerations made as part of an investment or procurement decision that relates to labour-related misconduct. This exception mirrors the approach taken in the Procurement Act 2023, which this House agreed in the previous Session. Public authorities can use the exception in the Bill when assessing whether a particular supplier has been complicit in modern slavery or a contract risks involving modern slavery. They must do so on a supplier-by-supplier basis, rather than by taking a blanket approach on the basis of a supplier’s country of origin. Public authorities will be able to do the same for investment decisions, assessing modern slavery risks for each investment target, rather than taking a blanket country-based approach.

Additionally, the Procurement Act 2023 provides a range of serious labour violations as grounds for exclusion. These must be considered for every supplier wishing to participate in each procurement within scope of the Act. The Act expanded the scope of the grounds on which suppliers must or may be excluded from procurements for labour violations, and added new grounds, including failure to pay the national minimum wage and offences relating to employment agencies. To reiterate, this is mirrored in this Bill. The exceptions to the Bill, just like the exclusion grounds in the Procurement Act, include considerations relating to various labour market, slavery and human trafficking offences. These are based on the serious labour offences within the purview of the director of labour market enforcement.

It would not make sense to expand the exception to the ban beyond what has already been recently agreed by the House in the Procurement Act. This would put the Bill out of step with that Act and create confusion for public authorities in scope of both this Bill and the Procurement Act.

The grounds for excluding suppliers in the Procurement Act are framed in terms of UK labour offences in our domestic legislation—and are, therefore, binding—rather than by reference to International Labour Organization conventions, to provide greater clarity to contracting authorities regarding when the grounds apply. I believe that this confirms the point from my noble friend Lady Noakes.

The ILO conventions are not related specifically to public procurement and do not impose express obligations with regard to public procurement, investment or public contracts. The Procurement Act provides for exclusion where there is a conviction for similar offences under the laws of another jurisdiction. The exclusion grounds do not refer to international standards because they are intended not as a means of enforcing labour rights but rather as a mechanism to ensure that contracting authorities do not award contracts to suppliers which pose such a serious risk to contracting authorities or the public as to make the supplier unfit to bid for public contracts.

The exception contains many other features which support and uphold our commitments to labour standards, some of which go above and beyond existing ILO conventions and standards, such as our approach to addressing modern slavery. I am satisfied that the exclusion grounds in the Bill cover the most serious breaches of workers’ rights and I am confident that the exception as currently drafted will enable public authorities effectively to protect the rights of workers delivering public contracts.

In answer to the noble Lord, Lord Collins of Highbury, it is important to note that the Bill does not apply to campaigns that are not country specific. Therefore, nothing in the Bill will prevent public authorities deciding not to do business with suppliers which have engaged in conduct which would constitute a violation of the International Labour Organization, as long as the policy was applied consistently and did not single out a specific country or territory.

I do not see any reason why this should provide a chilling effect since, as investors and customers, public authorities can exert influence on corporate behaviour which can transmit into change around the world. For these reasons, I ask the noble Lord to withdraw the amendment.

My Lords, I am grateful to all noble Lords who contributed to the debate, and to the Minister for his reply. I shall be very brief.

In relation to Amendment 30, the noble Baroness, Lady Noakes, argued as to whether or not Israel is in breach of the genocide convention. That is really not the issue. What is proposed is that a decision-maker should take into account whether any country is in breach of the genocide convention. The question of the State of Israel is not raised here. Of course, this matter is before the ICJ and I for one would hesitate to say anything about that until the ICJ has reached a decision.

The noble Lord, Lord Verdirame, made the point that the various conventions and provisions in the amendment are already included in international law. I take that point. I accept that. However, I think the purpose of my noble friend’s amendment to make it clear that those elements were included in international law. If they do not add anything, they do not detract from the original proposition either.

Finally on Amendment 30, the Minister raised whether it is for the Government or a public authority to decide whether there is a breach. This amendment does not touch on that subject. Whoever makes the decision is permitted to take into account the various conventions listed in the amendment.

So far as Amendment 32 is concerned, the noble Baroness, Lady Noakes, made the point that the conventions of the ILO do not have direct effect. Of course, that is absolutely right, but she said that passing the amendment would in fact give direct effect to the ILO conventions. My response to that is: not at all. It does not implement the ILO conventions in UK law; it simply gives permission to decision-makers to take into account whether the proposed supplier or territory is in breach of ILO conventions. The problem is the narrow confines of paragraph 8, which the amendment is intended to expand.

The noble Lord, Lord Verdirame, said that the amendment is directed to countries—forgive me; I am not doing justice to the elegance of his language. He pointed out that the conventions are directed to countries whereas paragraph 8 is directed to companies, to particular suppliers. That is true, but paragraph 8 begins with a disapplication of Section 1, stating:

Section 1 does not prevent regard to a consideration so far as it relates to labour-related misconduct.

Section 1 is on the basis of territorial considerations, not company considerations. As I understand it, the Bill would not prevent a public entity discriminating against a particular company as long as it did not discriminate against a country. It is for that reason that it appears to be entirely logical and justifiable to extend paragraph 8 to territorial considerations, which are inherent in the ILO conventions. Nevertheless, if the noble Lord is able to offer me any help in clarifying my amendment, it would be gratefully received.

Finally, the Minister said that he is satisfied that the grounds of exclusion offer sufficient protection for labour rights. With the greatest respect, I disagree. I think these additional protections are necessary. He underestimates the fundamental nature of the ILO conventions that are called into account. Nevertheless, on behalf of my noble friend Lady Blower, I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

Amendments 31 to 32C not moved.

Schedule agreed.

Clause 4: Related prohibition on statements

Amendment 33

Moved by

33: Clause 4, page 3, line 18, leave out paragraph (b)

Member’s explanatory statement

This amendment would remove the prohibition on a person publishing a statement indicating that they would have acted in a way prohibited by Clause 1 if it were legal to do so.

My Lords, I rise to move this amendment with the permission of the noble Lord, Lord Willetts, who, owing to the delay to the start of today’s deliberations, is unavoidably detained at an event being held, I believe, in his honour, so it would have been incredibly rude for him not to be present. Given that I think we are of one mind on this issue around Clause 4, I am very happy to speak to the amendment on his behalf.

There is much to complain about with this Bill, as we have heard in every group that we have discussed so far, but to my mind Clause 4 has to be one of the most egregious, nonsensical and unnecessary clauses in the entire Bill and, for that matter, pretty much any Bill that I have ever been involved with bringing through either House.

When I first read this clause—which talks about statements that a public body may make with regard to whether it will be taking a decision on BDS— I thought, “Ah, what the Government are trying to do here is to stop a public body making a statement that could be interpreted as a threat to commit to a boycott, or to divest”. But that is not right. This is a prohibition on making a statement that you are not going to enter into any kind of divestment or boycott decision. This is extremely odd.

I will give what might be a ridiculous example, but then I think this is a ridiculous clause; I will use it to explain to noble Lords just how crazy this is. The Minister is a stylish lady. I saw her when she walked in tonight and I thought she looked good. She has a very nice handbag with her this evening. It is very smart. I might have thought to myself, “I wouldn’t mind having that handbag away; I think I’ve got an outfit that it could go with”. But I will not do that to the Minister, because it would be a crime.

I can stand here and say that I am not going to take her handbag away with me tonight because it would be a crime and would, quite rightly, cause me to be punished, perhaps lose my job, embarrass the kids and all the rest of it; I am not going to do that to the Minister. I can say that; it is perfectly fine for me to say that about the crime of theft and depriving the Minister of her smart handbag. I can stand here, or anywhere I like, and make that statement. I am not threatening to do anything or saying that I intend to take away her handbag. I am saying that I am not going to remove her handbag because that would be a crime. That is fine for me to say.

I am not able to make an equivalent statement about divestments or boycotts if I am a public body under Clause 4. That is over the top, unnecessary and something that I cannot think we would ever apply to any other crime. We do not apply this to terrorism, child abuse or murder but, for some reason, the Government think it is necessary to put in this Bill that a public body cannot make a statement saying that it will not breach the terms of the Bill. That is extraordinary.

Further, it cannot even be the case under Clause 4 that a public body should be likely to make such a statement that it intends not to break the law. I have never seen anything like this in a piece of legislation anywhere. I am very curious as to the thinking behind it. I wonder whether the Minister could point us in the direction of an equivalent clause in any other Bill, from any period in the history of this fine country. To me, this goes beyond a gagging clause, which I think it has been called. This is thought police. This is saying that, even if it is suspected that a public body is likely to make such a statement, it can be subject to an information notice, to penalties and to unnecessary intrusion. I just do not see why it is needed, even if we were to accept— and we do not—that the approach the Government are taking in the Bill as a whole would be successful.

The last time we met in Committee, the noble Lord, Lord Warner, raised some interesting points about Clause 4. He made a very good speech, but on Clause 4 he was asking the Minister about her statement of compliance with ECHR. It was his view that she may have been misled or ill advised, or that it may not have been correct for her to sign off on compliance, particularly with Clause 4 in mind. He committed to go away and consider that, and I am interested to hear what the noble Lord, Lord Warner, might have to say this evening. I suspect that he may have read the Constitution Committee report that advises that the House may wish to consider whether Clause 4 should be removed from the Bill. I think the committee has a very good point, and we are very much of the mind that Clause 4 should be removed from the Bill. The noble Lord, Lord Collins, has tabled his intention that Clause 4 should not stand part of the Bill.

Aside from the oddity of this and the fact that it is not really needed, I think I am right in saying that this clause is capable of being applied to elected representatives. I am thinking of positions such as the First Minister of Scotland, Wales or Northern Ireland, where the current postholders are not individuals known for hiding their lights under bushels. Were they to decide that they thought something the Scottish Government were going to do, for example, might contravene the Bill, are we seriously saying that the First Minister of Scotland would be prevented from making a statement explaining their position? I do not think that is viable or the right thing to do. I do not think that is the kind of country we are.

Elected officials ought to be obligated to say where they stand on these issues. If they would have liked to have done something—not that they are going to do it or threaten to do it but had that been their wish—they should be obliged to say that. They should be free to say that. The fact that the Government are asking us to pass a Bill that would prevent the First Minister of Scotland saying what they think is dangerous, unnecessary and not something that we on these Benches would ever support. I do not understand why the Government need to do this and I genuinely urge the Minister to reconsider. I beg to move.

My Lords, I support this amendment and the stand part notice, to which I have added my name. I declare again my interest that as a bishop I can, in certain circumstances, be deemed to be a public body in my own right. I can also assure your Lordships that I have no acquisitive designs on any noble Baroness’s handbag this evening.

Clause 4 represents an attack on free speech. It prohibits even statements that suggest a person would have acted differently had it been legal to do so, even if they make it clear that they are going to act within the confines of the law. It is hard—as the noble Baroness just said—to see this as anything other than a sizeable infringement on that basic right to free speech, which is a cornerstone of our democracy.

Your Lordships will not be surprised that I oppose that restriction as a matter of principle. Free speech should be limited only when it is absolutely essential in order to prevent some very grave harm. I have heard nothing to date to suggest that such grave harm is likely to arise. If the Minister or her colleague has an example—perhaps in the aforementioned handbag— I plead with her to share it with us tonight.

Having taken a matter of principle, let me now set out why I believe the clause also contains important practical challenges. The Local Government Association has labelled this clause as particularly problematic. The Government say in the Explanatory Notes that councillors are not prohibited from expressing support—including in minutes—but if that is so, why is it not clearly in the Bill? Why not just remove this problematic clause?

Aside from the moral qualms that we might have about limits on freedom of speech, it is difficult to see how this clause could be enforced. It makes councillors particularly vulnerable to challenge when we elect them to give their opinions; they have to be free to do so. I also know, from having served for a good number of years as the independent chair of a local authority standards committee, that it is not always clear when the elected member is acting on behalf of a council or on their own behalf. Noble Lords may well remember one famous case where this distinction lay at the heart of it, involving the person who was at that time the Mayor of London. Mayors are of course public bodies in their own right, and that entire case, at the various levels it went through, hung on whether at that time he was acting as the Mayor of London or simply as a private individual going about his own business.

We heard at Second Reading the concerns that this will create a culture in which difficult ethical discussions do not take place, because of fears that this clause might be brought into action. Later this year, we are going to have a general election, I believe. Many candidates in that election may also serve on local government bodies. It would be invidious to our democracy for a candidate not to be able to answer honestly a question raised at a hustings, or by a journalist, out of fear that action might somehow then follow under this clause.

I have focused on local authority members, but we have spent many hours already in Committee discussing the uncertainty as to who exactly constitutes a public authority or a public body, or even whether those two terms mean the same thing. If we end up with university authorities being so classified, do we really wish to fetter the free speech that lies at the heart of healthy academic institutions—in fact, the free speech of which, on just about every other occasion we have discussed it in this House, I have always felt this Government to be a strong supporter? The only way to avoid such a culture of intimidation, which I am sure we all agree would be detrimental to local democracy, and potentially to wider civic and public life, is to remove this clause altogether.

My Lords, I have been trying to think of the right reverend Prelate as a public body. He is certainly a public authority, but he is at most a hybrid public body. I am not quite sure what sort of hybrid he is in this respect.

My name is on Amendment 33 and the clause stand part notice. I make it clear that this entire clause should go. The exact phrase in the Conservative Party manifesto in 2019 was:

“We will ban public bodies from imposing their own direct or indirect boycotts, disinvestment or sanctions campaigns against foreign countries”.

There was nothing about what they say there, although I note that the department’s memorandum for us says:

“It is intended that the measures will be widely construed”.

This is widely construed to the degree of being ambiguous and imprecise, as so much of this badly drafted Bill clearly is.

Yesterday I ran into the noble Lord, Lord Frost, in the corridor and commented on his rather good article, which was in the Telegraph on Friday, on freedom of speech as fundamental to the Conservative Party. I then asked him what he thought about Clause 4 of this Bill. He looked at me in some confusion and said, “I thought that had been withdrawn already”. I wish that that thought was a precursor of the change.

I have found it difficult to find arguments in support of the clause. I looked through the Commons Public Bill Committee stage, where evidence was taken from the legal adviser to the Free Speech Union, who said:

“My position is that clause 4 really needs to go in its entirety … there is no need—I think it is not necessary either politically or perhaps even legally—to prohibit statements. The mischief that is to be prohibited is the threatened act … This Bill very clearly targets expressions of political and moral conscience, which is to say the form of expression that is most highly protected by article 10””.—[Official Report, Commons, Economic Activity of Public Bodies (Overseas Matters) Bill Committee, 5/9/23; cols. 38-39.]

of the European Convention on Human Rights. It is not just the European Convention; we go back to the Atlantic charter, the fundamental basis on which the post-war international order rested, drafted by British diplomats, and in which the four freedoms include freedom of speech and freedom of belief.

I note that, in the Commons stages, one Conservative MP, David Jones, said:

“This is a Conservative Government. Conservatives believe in and value free speech … This is a deeply un-Conservative measure and I believe that the amendment”—

to Clause 4—

“is right and that the provision should go”.—[Official Report, Commons, 25/10/23; col. 915.]

The Committee should take that seriously. In the Commons debates, another Conservative MP referred to this clause and the ones that follow as introducing the concept of “thought crime”.

The Constitution Committee of this House’s very critical report says:

“The protection of free speech is a fundamental right. In our view, clauses 4(1)(a) and 4(1)(b) unduly limit freedom of speech … The House may wish to consider whether clause 4 should be removed from the Bill”.

I dare to suggest to the Minister that this House will reject this clause and that, when the Bill returns to the Commons, it is quite possible that a number of Conservative MPs who do believe in conservative values of free speech will find it convenient not to be there when the Commons vote again. Therefore, it would be wise for the Government to consider their position and, I suggest, withdraw this clause.

My Lords, the noble Baroness, Lady Chapman, was kind about my previous speech and almost enticed me to get up and go over some of this ground again. When I spoke on Amendment 19, I was concerned about the statement of compliance with the Human Rights Act that the Minister had signed in the Bill. I probably took my eye off the ball a little by going for that rather than Clause 4 directly. But I said that the reason for the non-compliance was the presence of Clause 4 in the Bill, which was clearly in breach of Article 10 of the ECHR. I asked the Minister to cite the Government’s legal advice that justified that statement of compliance. I was given the usual answer from Government Front Benches, that the Government do not reveal their legal advice.

After that event, I turned my attention, as the noble Lord, Lord Wallace, did, to the Constitution Committee’s report, which is an interesting document. Paragraph 5 says, in bold type, that this clause is in contravention of the ECHR. It does not mince its words; it says it clearly and unequivocally. It is worth looking at the make-up of the Constitution Committee. It has 12 members, five of whom are distinguished lawyers. It has a former Lord Chief Justice, a former Lord Chancellor and three eminent King’s Counsels. It also has a former Conservative Leader of this House: the noble Lord, Lord Strathclyde. The Minister was reticent about quoting the Government’s legal advice, but I am not at all reticent about citing the source of my legal advice: the Constitution Committee.

I can see no grounds why this Government should continue with this gagging clause when a very eminent set of lawyers on the Constitution Committee has said, in words of one syllable, that this is a breach of Article 10 of the ECHR. I will not go back over the ground about the statement of compliance—the issue is clear cut. It is that we remove this gagging clause, which is an impediment to free speech.

My Lords, I support the amendment that we are discussing, which would remove Clause 4(1)(b), and will speak also to the clause stand part issue that is grouped with it. I declare that I am a member of the Constitution Committee, about which the noble Lord was so complimentary a moment ago. I have also had a long involvement with Liberal Democrat Friends of Israel, and I understand where the pressure for legislation of this kind is coming from, and the concerns that have given rise to it, including some very aggressive campaigns that have occasionally veered towards anti-Semitism and contributed to a real sense of insecurity, leading to a demand for legislation of this kind.

When consideration was being given to a ban on boycotts, I do not think that anybody expected that this was going to include the sort of provisions that we are debating now—provisions to prevent people talking about a situation that has given rise to something as significant as a potential ban on boycotts. That is what this part of the Bill does—this prohibition of statements

“indicating (in whatever terms) … that the person intends to act in a way that would contravene section 1, or … that the person would intend to act in such a way were it lawful to do so”.

That really is the most preposterous set of words I have come across in any piece of legislation that I have looked at in my entire time in either House of Parliament. It is quite extraordinary and preposterous.

The Government are keen to explain that all sorts of people will not be covered or affected by it. The noble Baroness spoke earlier about councillors. In their Explanatory Memorandum, the Government are very keen to say “Oh, councillors won’t be covered by the Bill”. It is not entirely clear to me that this is true, but let us just accept for the moment that it is the Government’s position. The Explanatory Notes say that

“councillors of a local authority are not a public authority and, therefore, are not prohibited from expressing support for or voting in favour of a motion supporting a boycott or divestment policy. 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 statement would not be captured under this clause”.

The mere fact that this has been included in the Explanatory Notes suggests that the Government are a little worried on this point. Perhaps the Minister can explain how confident they can be that councillors are not covered.

Let us just take that situation a little further. Such a debate takes place in a local authority, and the minutes record that several councillors got up and said that they were very keen that there should be a boycott. The person who is, for the purposes of this legislation, a person who makes a statement on behalf of the authority, finds himself in a room surrounded by journalists and campaigners who ask “Why did you come to that decision? We’ve looked at your minutes and the majority of councillors said they were in favour of it—so why did you come to that decision?” To which the answer is, “I came to that decision because it would be against the law for us to do that, and this local authority is not going to do things that are against the law—we believe in the rule of law”. That statement would bring that person into jeopardy under the provisions of the Bill. We do not actually yet know what the system of enforcement is really going to be, because the Bill is unclear on the point. But that mere explanation of why that is the outcome—why there is not going to be a boycott by that authority—would be covered by the provisions of the Bill.

These provisions are not necessary, as my noble friend pointed out, to satisfy the Conservative manifesto promise, which made no reference to provisions of this kind. It simply indicated that the Government would

“ban public bodies from imposing their own direct or indirect boycotts, disinvestment or sanctions campaigns against foreign countries”.

There is nothing there about making sure that people could not explain what they were doing or not doing.

Here we have the ultimate paradox of a situation in which some country is the subject of a campaign because of its breaches of the rule of law—because it shows no respect for the law. The campaigners and people on a local authority or a public authority say, “We should boycott them because they don’t uphold the rule of law”, and the leadership of the authority says, “We can’t do that, because then we wouldn’t be upholding the rule of law, and we are in favour of the rule of law”. If they go out and make a statement saying so, once again they are in jeopardy under the provisions of this legislation. Do we support the rule of law or do we not? If we do, people should be allowed to talk about its relevance to that situation.

These provisions are quite extraordinary. There are a number of places in the Bill where the drafters have bent over backwards to try to enact provisions that do not have the wrong effects, and some pretty tortuous drafting has resulted. In this particular case, it is absolutely manifest that there is no justification for these provisions. They do not help the purpose of the Bill and they are a very damaging incursion into an area which, as the Constitution Committee pointed out, we should be protecting: freedom of speech.

I shall follow the line taken by the noble Lord, Lord Beith, who quoted from the Government’s Explanatory Notes. This is the House of Lords wording in the Explanatory Notes: it was supposedly toughened up following discussion in the Public Bill Committee in the House of Commons. So we have this explanation in front of us and I shall just quote again what the noble Lord, Lord Beith, quoted, which is that

“councillors of a local authority are not a public authority and, therefore, are not prohibited from expressing support for or”—

my emphasis—

“voting in favour of a motion supporting a boycott”.

Can the Minister give us an assurance? If councillors vote for a boycott, which they are entitled to do, according to the Explanatory Notes, and if that boycott motion is passed, enforcement action is taken and ultimately a civil penalty can be levied, is there any prospect whatever of those councillors who voted for the boycott motion being surcharged? Because the prospect of that must clearly be a limitation on their ability to speak.

My Lords, as a Conservative, I believe absolutely in the right to freedom of speech, but I do not think that the limits on freedom of speech in Clause 4 are as great as some noble Lords have tried to make out. I do not think that Article 10 of the European Convention on Human Rights is something that affects the rights of individuals, and Clause 4 is fundamentally aimed at public authorities. I completely understand that there is a very small number of public authorities who can be individuals as well, but, as my noble friend the Minister explained at Second Reading and as the Explanatory Notes make very clear, the prohibition on statements is against public authorities and attaches to individuals only to the extent that they are speaking for the public authority. Even if it applies to the statements made by individuals on behalf of the public authority, the ban applies to the public authority and the enforcement action is taken against the public authority. So individuals are not targeted by Clause 4.

We have to remember that this is not an academic issue. We already know that councils are starting to pass BDS motions and they are against this Bill. We know that the student encampments are including demands or public statements on the conflict in the Middle East and on divestment. They may not get all their demands, but that is certainly where they are pushing towards. Without the Bill, I think we can be fairly sure that BDS activities and statements will continue to increase and that will have an impact on social cohesion, and a particular impact on the Jewish communities that are affected by the sorts of statements that are made.

The noble Baroness said that she is afraid that BDS statements will increase. Is she in favour of preventing such statements in unavoidably lively public debate?

Yes, I am against statements being made by public authorities. I am trying to make the distinction at the moment between public authorities and the individuals who are involved in those public authorities, who I think are hardly affected by this, except to the extent that they speak for the public authority. I think there is a case for taking a position against statements by public authorities, because of the impact on social cohesion.

We have to remember that this provision does not come from nowhere: it is rooted in the real, live example of what happened in Leicester Council back in 2014. It passed a BDS motion and then said, “only as far as legal considerations allow”. At that time, that was hugely divisive in the local community. It does cause very real harm and that is why this is so different from the kind of example that the noble Baroness, Lady Chapman, gave at the beginning, about wanting to make a statement about stealing my noble friend’s excellent handbag. This is about social cohesion, at the end of the day; that is why this provision is in here.

I have listened with interest to the noble Baroness. Can she explain why the rather talented and experienced Constitution Committee took a totally different view from her and was so concerned about Clause 4? Why is she saying that, in effect, it has got this wrong—that it should not be saying that Clause 4 should be removed from the Bill but should welcome it as delivering the requirements of the Bill? I am rather puzzled.

I have never been a member of the Constitution Committee—I am certainly not a current member—so I simply cannot answer that question. I do not know why it has reached the conclusions that it has, but I believe that they are not in accordance with the impact of Clause 4 as drafted.

When dealing with stopping people doing things and making judgments about whether doing so is right, a balance always needs to be struck. In this case, the Government have tilted the scales in favour of social cohesion. People may think that that is the wrong decision and that allowing elected officials to speak on behalf of an authority in the way that they want to is a price worth paying. I believe that, because of the limited nature of Clause 4 as drafted, it strikes the right sort of balance in this case.

We must remember that this Bill does not stop elected officials speaking in their own capacity, nor does it stop bishops doing so—not that that would ever be an easy thing to do. Individuals in public life can have a big impact on social cohesion, but they are not debarred by this Bill from giving their own views on BDS activities, even though they would have such an impact. In that sense, this Bill is a modest change to the status quo on public statements. It is certainly not as far reaching as people have tried to make out. I would like to get a little balance in this debate.

My Lords, the noble Baroness asserted that Clause 4 does not apply to individuals but only to entities. Clause 4 says:

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

and so on. In law, a “person” could be a corporation or an individual, but Clause 1 is quite clear in referring to a “decision-maker”, which can clearly be an individual. One can easily visualise a public entity where the decision is made by one person who has had authority delegated to them, a committee or group of people who have the power to make such a decision or the full council, body or whatever it may be. Clearly, Clause 4 is capable of being directed at individuals.

I hear what the noble Lord is saying. Clause 1 affects persons who are decision-makers. Decision-makers are defined in Clause 2, which uses the definition of public authority. As I said earlier, there are a very small number of cases where individuals can be decision-makers. It is not a question of people taking delegated authority to be decision-makers; if I were in a council and delegated to the chief executive, they would not thereby become the decision-maker. The decision-maker remains the public authority under the terms of Clause 2.

I refer the noble Baroness to Clause 1(7)(b), not just Clause 1(7)(a), which says

“any person seeking to persuade the decision-maker to act in a certain way”.

That sounds to me rather like an individual.

Indeed, but a person who is subject to Clause 1 is a decision-maker. The noble Lord has just referred to the person giving advice or the person seeking to persuade the decision-maker, but that person is not a decision-maker for the purposes of Clause 1, and therefore not for the purposes of Clause 4.

With all due respect, Clause 4 applies to Clause 1(7)(b), which refers to an individual. We must perhaps ask the Minister to advise us on whether that is true.

We discussed this very point on our first day in Committee, and I think I have stated the correct position on the interpretation of the Bill.

My Lords, to answer some of the points made by the noble Baroness, Lady Noakes, the idea that individuals are not targeted is certainly not sufficiently reassuring to make local decision-makers feel protected. Most of what is in the Bill seems to be very much targeted at local authorities and their members.

It is perhaps worth while to point out here, in this unelected Chamber, that councils are directly elected and are accountable to their electorate. They are also obliged to report back to their constituents about such things as decisions that they have made. I was a former leader of a council, and I would have wondered, on seeing this Bill, having been asked why I had made a certain decision, whether replying in a certain way would mean that I was prosecuted, or perhaps that I was not able to reply because I am forbidden to speak about this. There is sufficient lack of clarity in the Bill to make people wonder about that. I do not think that it has been demonstrated otherwise. As the noble Lord, Lord Warner, said, the Constitution Committee sees this as a major threat to free speech. We need some more guidance on this.

I take exception to the idea that, somehow, statements from student encampments are equated with statements issued by locally elected authorities and their officials. They are not the same at all. Local authorities have a constitutional role, and they should be respected as such. The contempt that I have heard from some people in this Committee is unwarranted, given the lack of evidence of councils making such decisions as are prohibited in the Bill.

The idea that prohibiting such statements will have a good effect on social cohesion is much more likely to have the opposite effect. If people are told that they are not allowed to make statements, they are much more likely to try to find other ways of getting their messages across. The idea of oppression leading to better social cohesion seems to me to be a false premise.

I agree with the noble Baroness, Lady Chapman, that there is a complete failure by many of us in this Chamber to explain why Clause 4 is necessary. We have not really heard any good reason, other than the noble Baroness, Lady Noakes, telling us it is for social cohesion.

On the idea that freedom of speech is offended by Clause 4, as the right reverend Prelate said, freedom of speech is a basic right and a cornerstone of democracy. Although we are an unelected House, we fight for democracy—I would hope—and stand by democratic principles, as has the Constitution Committee, as told to us by the noble Lords, Lord Beith and Lord Warner.

The practical issues with the Bill, as to how its provisions are actually enforced, is again something that needs clarity. As the noble Lord, Lord Warner, said at the beginning, we are discovering with the Bill that, the further we go with it, it really lacks clarity. Trying to establish what it is meant to do and how it is meant to do it seems to have defeated us so far.

We need much better clarification about the Human Rights Act. If the Constitution Committee of this House tells us that the Bill contravenes Article 10 of the Human Rights Act, we need to know how it is that Ministers are telling us that it is somehow compliant, as this is clearly not the case.

As the noble Lord, Lord Beith, said, to prevent people talking about issues important enough for them to be calling for a boycott is an outrage. The Explanatory Notes trying to maintain that somehow individual councillors will not be targeted or held responsible is totally inadequate if that is not going to be on the face of the Bill.

The clause deserves to be removed. I very much regret that it disrespects the role and responsibility of directly elected councillors and their officials. It has extreme overreach in trying to gag them and prevent them explaining their decisions, for which they are publicly accountable. I believe that contraventions of the ECHR are matters to be taken very seriously, so I want to hear from the Minister further explanation and further response to the recommendations of the Constitution Committee.

My Lords, Amendment 33 to remove Clause 4(1)(b), moved by the noble Baroness, Lady Chapman, and the amendment in the name of the noble Lord, Lord Collins, to remove Clause 4, undermine the aims of the Bill.

Before I address the amendments, I reiterate that the Government are committed to protecting freedom of speech, which is why the Bill’s provisions apply only to public authorities and not to individuals or companies in their private capacities. I made that clear in my response to the Constitution Committee report in March and set out why the clause is necessary to fulfil the 2019 manifesto commitment.

I also clarify to the noble Baroness that we are not creating any new criminal offences in the Bill for statements about boycotts or handbags or any other kinds of statements. Moreover, statements about one wanting to steal someone’s handbag would clearly not have an impact on community cohesion in the way that statements of intent to boycott may. Statements of intent to boycott can be threatening and intimidating, particularly for those within the Jewish community.

My Lords, we are not talking about a statement of intent to boycott; we are talking about a statement that you would have done something but you do not intend to do it. That is the point that we are trying to make.

I think that it is necessary to make these points within the framework of the Bill.

I will move on and explain Clause 4, which, in its entirety, is an instrumental part of the Bill. It prohibits public bodies from publishing statements indicating that they intend to engage in activity prohibited by the Bill. That includes statements indicating that the public body would have acted differently if the legislation had not been in place.

I will deal directly with some points that I feel are misconceptions. The clause will not affect the statements of individuals, unless they are speaking as or on behalf of a public authority. The noble Baroness, Lady Chapman, is not speaking for a public authority in her colourful example; I assure her that she would not be in breach of the ban if she were making a statement of intent to boycott. Even when an individual is speaking on behalf of a public authority, the ban applies only to the public authority itself and there is no personal liability for the individual. Thos includes councillors, to answer the question raised by the noble Lord, Lord Davies of Brixton. For that reason, I reiterate—

I am very sorry, but I must ask the Minister to address the question about Clause 1(7)(b). If she reads that clause, she will see that it could cover any individual who seeks to influence a decision-maker. That could include, in my interpretation, a journalist writing a campaign statement in a newspaper, asking whichever council it is to take action.

I will come on to decision-makers.

I reiterate that it is important that the Bill does not breach Article 10 of the ECHR on the right to freedom of speech, and I have already reiterated the Government’s support for free speech. The reason the Bill is compatible with the ECHR is that public authorities do not enjoy human rights, as the purpose of the convention is to protect individuals from undue interference by the state, of which public authorities form a part.

I gave a full reply to the committee in my letter of 15 March, and we have already added extra provisions to the Explanatory Notes, some quoted by the noble Lord, Lord Beith, to make it clear how the sorts of concerns expressed this evening may be mistaken. He provided an example where a local authority debated a motion to boycott that was ultimately not passed, and asked whether the public authority would be in breach of the ban if it explained that the reason it did not support the motion is that it would be illegal under the Bill. In this scenario, it is the individual councillors who said that this is the reason they did not support the motion in the vote. The public authority has not adopted the motion. Its statement merely summarises the individual councillors’ reasoning. It is therefore not an expression of the public authority’s intention to boycott. Even in the case where the councillor was speaking on behalf of that public authority, such a statement would be in breach of the Bill only if it clearly indicated that the public authority intended to engage in a boycott in the exercise of its public functions or would engage in such a boycott if that were lawful.

As I say, it is the leader of the council who is being questioned as to why the council did not, in the event, agree to a boycott, although there were speeches in the chamber and maybe some votes cast supporting a boycott. What is he able to say that does not fall foul of the legislation as currently drafted? If he says, “The reason we are not going ahead with this is that it is against the law, and this council does not do things that are against the law”, is that not in breach?

The principle is that the person seeking to influence would not be caught by the Bill. The provision is to deal with a situation in which a public authority boycotts because of pressure from someone else, rather than its own disapproval of a foreign state.

I apologise, but I think the Minister is trying to answer at the same time the points that I and the noble Lord, Lord Warner, made. His point was about the category of people referred to in Clause 1(7), I think. I am talking about a situation, directly following the example that I gave and she has used, in which the leader of the council seeks to explain why the council is not doing what at least some people were recorded as having said that it should do during the debate, saying, “No, we’re not going to do that because this council does not do things that are against the law”.

I will take the noble Lord’s example away. I have given him a clear statement and he makes a reasonable point. I think there is an answer to it, but I will not just make it up; I want to give him a clear answer on that. Perhaps I can move on and deal with one or two other concerns.

I am sorry to delay things yet further. We have had a lot of discussion about theoretical examples of what might happen. I tried to give your Lordships’ Committee a particular example of a case against the then Mayor of London. It was a notorious case and it took months in the courts to decide whether he was acting as a public authority or in his private capacity. Therefore, how can the Minister seem to think it so simple to decide when somebody is acting in a private capacity and when they are acting as a public authority, given that the one case that really got the public attention spent months in the courts before it was eventually determined that on that occasion he had been acting in a private capacity? I am sure that everybody can remember the case.

I am afraid that I am not familiar with that case, but I take the right reverend Prelate’s point. The way I have described this shows that in fact this is limited in intent; free speech is possible in a personal capacity. I will come on to say a little more about that and about decision-makers, because I know that we need to clear up those points and I am conscious of time.

The noble Baroness, Lady Chapman, highlighted that Ministers in the Scottish Government would be captured by this provision. As I have explained, as Ministers in the Scottish Government are public authorities for the purpose of human rights, they do not have ECHR protections in their public functions. It is clearly right that this provision should apply to Scottish Ministers to ensure that communities in Scotland are protected from these divisive statements, and foreign policy is a reserved matter. Additionally, Clause 1 applies only in relation to procurement and investment decisions in the exercise of public functions. Therefore, Clause 4 would not apply to statements made by Scottish Ministers about how they tend to act in their private lives.

Can we be absolutely crystal clear on this? The Government are arguing that a Minister in Scotland, the Mayor of Greater Manchester, Andy Burnham, or the First Ministers of Wales or Northern Ireland could not legally make a statement saying, on behalf of the public authorities they are elected to lead, that they do not intend to break the law because they do not break the law. Clause 4 would prevent them doing that.

It may be important, and therefore it is all the more important that the noble Baroness’s question is answered fully and accurately. I have made it clear in answer to the noble Lord, Lord Beith, that as only public authorities are subject to Clause 1, Clause 4 is strictly limited to the actions of public authorities and therefore not individuals associated with public authorities.

As chair of the Constitution Committee, I should say that the answer from the Government went on to say that declarations could be as harmful as the boycotts themselves, and that was deployed in defence. It is quite right to clarify the point made by the noble Lord, Lord Beith, on what constitutes a declaration that does or does not fall under the qualification in paragraph 6 of the Minister’s reply to the Constitution Committee. I do not seek to express a view; I am just saying that there is that undefined element.

I note the point that the noble Baroness has made. We did reply to the Constitution Committee, but I will reflect further on this point.

My noble friend Lady Noakes said that there had been some confusion due to the use of the term “person”, which I have already referred to. To respond to the point raised by the noble Lord, Lord Hendy, in the context of this clause, the legal term “person” refers only to a person subject to this Bill’s ban. In other words, it refers only to a public authority as defined in Section 6 of the Human Rights Act 1998. The legal term “person” does not have the same meaning as in normal English. This is standard legal drafting.

Additionally, for the purposes of this Bill, decision-makers are public authorities—as explained by my noble friend Lady Noakes and confirmed in Clause 2(1) of the Bill, which I have just referred to. Public authorities will delegate decision-making to individuals, but individuals’ decisions or statements are captured only when they are made on behalf of the public authority. This issue was also discussed in Committee in the other place. It was because we listened to the concerns raised on this point that we revised paragraphs 32 and 33 of the Explanatory Notes. Paragraph 32 states:

“As only public authorities are subject to clause 1, this clause is strictly limited to the actions of public authorities”

and therefore not individuals associated with public authorities. I think that goes three-quarters of the way to answering the question asked by the noble Baroness, Lady Chapman, but I will follow up.

I hope that makes it clear that this Bill is not an assault or restriction on the principle of free speech. Rather, it aims to ensure that the UK speaks with one voice internationally. Public authorities should not be pursuing their own foreign policy agenda or publishing statements on foreign policy. It distracts from their core duties. Clause 4 will support those bodies to remain focused on that purpose. It is a core part of the Bill and meets the manifesto commitment to ban public bodies from imposing their own direct or indirect boycott, divestment or sanctions campaigns against countries and territories.

Briefly to address Amendment 33, and the point raised by the noble Baroness, Lady Chapman, I remind the Committee of just how divisive of community cohesion within the United Kingdom declarations of intent to boycott can be. That includes statements made by public authorities that indicate that they would intend to participate in boycotts and divestments if it were legal to do so. The right reverend Prelate the Bishop of Manchester, who I am very glad has joined our discussions, will have noted what I said about elected officials, including councillors, expressing a view which is not related to the narrow purpose of this Bill. He asked for an example of our concern. We saw a good example in Leicester, which my noble friend Lady Noakes referred to. In its resolution in 2014, Leicester City Council passed a motion targeting the activity of the Israeli state with a boycott

“insofar as legal considerations allow”.

The motion was widely condemned by Jewish groups and was extremely divisive. This demonstrates the need to ban statements of intent to boycott or divest which express—

My Lords, we need to be very careful about how we talk about social cohesion at present. As it happens, I spent some time last weekend in Saltaire, which is part of the Bradford local authority, talking with one of Yorkshire’s Christian leaders and one of Yorkshire’s Muslim leaders about how we maintain social cohesion and interfaith co-operation under the current circumstances. It is not easy. These are two people whom I like and trust, and they are very good friends. We have to recognise the impact of the ongoing war, and in particular the response of our younger generation—white and Christian, and south Asian and Muslim—in all their diversity. It is very delicate at present, and simply asserting that stopping debate is a way to maintain social cohesion is not the answer.

As the noble Lord knows, the Bill aims to improve the situation with social cohesion. I note what he said, but we have seen examples of councils, such as Islington, passing motions in opposition to the Bill alongside foreign policy statements about Israel and other countries. While this might not be a breach of the ban, it demonstrates a strong interest in public authorities engaging in BDS campaigns. It could demonstrate that the Bill is already having its intended effect of preventing public authorities making divisive statements.

The point is that, overall, Clause 4 supports the main aims of the Bill in ensuring that the UK speaks with one voice internationally and has one foreign policy agenda, and that public bodies do not introduce policies in that area that risk dividing communities at this difficult time. Accordingly, for this evening, I kindly ask the noble Baroness to withdraw her amendment.

My Lords, this has been a helpful debate, if somewhat frustrating at times. I do not think that it is good enough to be reminded of social cohesion as a way of trying to entice us into supporting this measure. We all want to work hard to improve social cohesion where there are issues, and I know that the Minister would accept that that is our intention too.

There are fundamental problems with this clause. The Minister herself has said that she is unable to answer some quite basic questions that we have asked, and not for the first time this evening—we have asked these questions before. We have used different examples to try to tease out the answers, but the principal question is the same: who will be subject to this measure and what might the effect of that be? We still do not know the answer to that.

With respect to the noble Baroness, I have answered the large majority of the questions, but I said that I would take away the underlying question that she is enunciating.

I acknowledge that the Minister has done her best to answer the position this evening. But I remember a meeting that we had before Second Reading and asking her about this example of a council leader, which we heard again tonight put very well by the noble Lord, Lord Beith—I think the Explanatory Notes had been amended at that point. We still do not know the answer to that. The officials who were with her said that they would take it away and come back with an answer, but there has been no answer tonight. The Minister will understand our frustration a little.

The noble Baroness, Lady Noakes—what a soldier. She shows up and does this for the Government, night after night, but, my goodness, how unpersuasive she was—she is normally very persuasive and I can normally see where she is coming from. She is doing sterling work, I am sure, but she has not provided us with the answers that we need. Saying that this is about social cohesion will not wash.

Should the Bill pass, should this clause be included, social cohesion could be damaged. What social cohesion needs is communication, open expression of where people are coming from, and relationships of trust to be built up. You cannot build relationships of trust among community leaders, whether they are councillors, leaders of combined authorities or Ministers in devolved Administrations, if they feel, and are said to feel, unable to express their true positions. That is not a situation we should be content to tolerate in this country.

It would be helpful if the Minister could commit to writing to noble Lords about the issues concerning councillors; but they apply to other elected officials too, as we have discussed. If we could have that letter before Report, that would be incredibly helpful.

I beg leave to withdraw my amendment.

Amendment 33 withdrawn.

Clause 4 agreed.

House resumed.

House adjourned at 10.26 pm.