Committee stage in the Commons
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Greg Smith (Buckingham) (Con)Conservative- Quote
- Before we begin, may I say for the sake of transparency—I do not think that this is a fully declarable interest—that Steven Barrett is known to me as a councillor in Buckinghamshire? Richard Hermer: For the sake of transparency, I am a Conservative councillor in Buckinghamshire unitary authority. That will not form part of any of the evidence that I give to this Committee. I am a parish councillor in Chepping Wycombe, but that role is not party-affiliated.
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- 11:36
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The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)Conservative- Quote
- Q116 As we know, the Bill does not in any way change the UK’s foreign policy approach to the middle east. Would you agree that the Bill is in line with the Government’s obligations under international law? Jonathan Turner: Yes, I would. I would go further and say that it has the beneficial effect of securing the UK’s compliance with international law, particularly with World Trade Organisation agreements, which impose restrictions on the UK central Government and a very wide range of public bodies. The Bill and its enforcement will ensure that activities or decisions of subordinate public authorities will not put the UK in breach of, particularly, the Government procurement agreement, which is part of the World Trade Organisation collection of agreements.
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- 11:39
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- Felicity BuchanConservative
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- Steven? Steven Barrett: Yes, although I hesitate to reply on that because complying with international law is a political position. What I would perhaps like to make clear and explain to the Committee is our constitution and how we work. It is really important that this is understood. It was clarified recently by the Supreme Court, so we are back to now understanding the constitution, and we have a unique relationship with international law. If you wanted, we could all go to the British Museum and look at some 2,500-year-old international law—in fact, it is older than that. There are great masses of it. Absolutely no legal jurisdiction in the world makes all of it binding on that jurisdiction. If you take a European-style constitution after the war, it will use a constitutional court to choose which bits of international law it wants and does not want. It makes it the job of its judges and courts to do that. When we were in some constitutional confusion after coming out of the EU, I wondered whether that was the system that we would use, but what then happened was quite clear. You may all remember the Northern Ireland case about the impacts of the protocol on the Acts of Union: it went to the courts, and the courts very clearly said, “No, this is not for us.” We are clear that we do not have a continental-style system in which a court can break international law or exit it for us. We have a system where you deal with it. This Parliament deals with international law, and we draw a line that we call incorporation. Incorporated international law is binding upon us. You will all remember Miller 1 and the fuss that the Government had where they pretended that they could get out of the EU without passing an Act. No! The part of international law that made up the EU was incorporated international law. To get rid of incorporated international law, they had to use an Act of Parliament. If it were unincorporated, that would be entirely different. That is the line that we draw. It is really important that people start remembering it. We have not really needed to know about it since the ’60s. In his speech clarifying this, Lord Reed, the President of the Supreme Court, was very forgiving: he just called it a misunderstanding that had arisen. I like to call it a confusion, because nobody should feel guilty about this: these are bits of the constitution that we have not had to wield for decades. How was anybody supposed to know instantaneously that when we left the EU, this was what would happen? But that is what happened. It is the role of Parliament, not Government, to control the operation of international law, and you do that through Acts of Parliament. This Bill is lawful—of course it is—because it is simply a mechanism for doing that. In his most recent note, I note that Mr Hermer concedes that. The only relevant part to come out of a lawyer’s lips is whether you can or cannot do something; whether you should or should not is entirely for you. He says that you can, and I think that that is enough from any lawyer.
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- 11:39
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- Felicity BuchanConservative
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- I just have a quick segue from that.
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- 11:43
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- Felicity BuchanConservative
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- Q Today we will be hearing from Richard Hermer KC, who has provided legal advice to the Labour party. Could you quickly give your views on that advice? I turn to Jonathan, since Steven has already addressed that. Jonathan Turner: Most of his advice, I think, is wrong. I have set out detailed reasons why his opinion that was published and circulated at the time of Second Reading was wrong, but I would like to take the opportunity to address the note that he sent round last night, because I am afraid to say that it is still wrong. One of the points that he made before claimed that this Bill would effect a profound change in the autonomy of local government. That is just not correct: there are existing, very substantial restraints on the autonomy of local government when it comes to procurement and investment. Some of those will be replaced by the Bill and some will continue, but it is simply not the case that this makes a sudden and enormous change. He has accepted that section 17 of the Local Government Act 1998 effected a substantial restriction on local government bodies, but he has ignored—even though I have sent him two emails pointing this out—the EU legislation, which effected a very substantial restriction. He goes on to say that the Local Government Act applied only to local government bodies, not to other public authorities, but the EU legislation applies to a very broad range of public authorities. The regulations implementing the EU directives in England and Wales and Northern Ireland are to be repealed by the Procurement Bill, which is in its final stages. It does not affect the regulations implementing the EU directives in Scotland, which will apparently continue in force; the memorandum from the Scottish Government to the Scottish Parliament suggests that that will continue to be the case. The position is that this Bill effectively replaces that EU legislation as far as England and Wales and Northern Ireland are concerned, within its terms, in relation to territorial matters. What the Bill really does—the most important aspect of the Bill—is transfer a matter that was regulated by EU law into a matter that is regulated by national law, and set out the national law governing this particular matter. It is part of the Brexit agenda of, if you like, taking back control: you may agree or disagree with the decision that the British people made, but it was made. A major part of the function of this Bill is to replace pre-existing EU-based legislation with UK- based legislation, together with the Procurement Bill.
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- 11:43
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Wayne David (Caerphilly) (Lab)Labour- Quote
- On a point of order, Sir George.
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- 11:43
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- Wayne DavidLabour
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- I hope so, too. I just want to ask your advice. Is it appropriate for a witness to this Committee to give evidence in the form of attacking another witness who does not have the opportunity to respond to those comments because he is not here? Surely a witness should be giving positive remarks about why something should be done, rather than criticising another witness.
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- 11:46
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- Wayne DavidLabour
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- No, and I don’t think many people will.
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- 11:47
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Alex Norris (Nottingham North) (Lab/Co-op)Labour- Quote
- Q The key test in clause 1 for the action of a decision maker is whether it “would cause a reasonable observer of the decision-making process to conclude that the decision was influenced by political or moral disapproval”. Are you content with the phrase “reasonable observer”? Do you think it is tight enough? Could it be clearer? Jonathan Turner: Yes. “Reasonable observer”, or “reasonable person”, is used throughout English and Welsh law and so on. It is the basis of the law of negligence. You interpret contracts with reference to how they are understood by the reasonable person. In legislation, similarly, and in lots of other documents it provides an objective test, instead of looking at the subjective intention of the maker of a statement. That has the benefit of greater certainty and greater clarity, which is why it is used. I am very happy with it being the formulation that is used. I do not think that there is any problem with it at all; I think it is the best way of doing it. You would have terrible difficulties if you tried to do things in terms of the subjective intention of people adopting the decision.
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- 11:48
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- Alex NorrisLabour
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- Q So can we have confidence in it as essentially a term of art that will be easily understood by the courts and is not likely to lead to a series of cases based on whether or not one is reasonable? Is that likely to be tested? Steven Barrett: It is not likely to be tested, because it is quite a settled test. It is a legal mechanism for taking subjectivity and turning it into objectivity, which is what law does—and which is why when I speak in public on law I have the unique and remarkable opportunity to annoy everyone. It is an acceptable test and I would not worry about it. The courts are familiar with it.
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- 11:48
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Dr Luke Evans (Bosworth) (Con)Conservative- Quote
- Q There has been much discussion with other witnesses about the need for clause 4. I have a question for Jonathan Turner: do you agree that clause 4 is necessary, and do you think it is compatible with article 10 of the European convention on human rights? Jonathan Turner: Certainly parts of it are necessary. Otherwise, you have the Leicester City Council type of approach of saying, “We are supporting boycotts. We want goods from a particular territory to be boycotted as far as the law allows.” That is deeply problematic. First, it has the same impact on community cohesion as any other BDS measure that targets a particular country and indirectly targets a particular ethnicity. Secondly, it creates a degree of confusion and difficulty for the staff who have to implement it: they have to work out what the law does allow in terms of boycotting, they have to find out what the facts are, they have to go to the lawyers, and there will be arguments about it. The whole thing becomes a mess and discourages them from accepting certain tenders. They are further discouraged by the fact that they might offend some of the councillors who were so vehement about passing the measure. It has a chilling effect on the public authority and the staff who are left dealing with it. That is what I see as the primary target of this provision. As to whether it conflicts with human rights requirements: no, it does not. It only binds public authorities. It does not stop individual members saying, “I support BDS. I don’t like what such and such a state is doing.” It only stops a public authority saying that. Public authorities, as we know from the House of Lords decision in the Aston Cantlow case, do not have human rights under the European convention on human rights and the Human Rights Act. I think that is why they have chosen to do this by reference to section 6 of the Human Rights Act and its definition of “public authority”.
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- 11:54
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Chris Stephens (Glasgow South West) (SNP)Scottish National Party- Quote
- Q My trade union training tells me that if you have two lawyers in the room and you ask them a question, you get at least three opinions, but I am going to try one question anyway. The Scottish Government oppose the BDS campaign, but also strongly discourage trade with companies active in the Occupied Palestinian Territories—an occupation that was recognised as illegal under international law and by the UK Government. How would you both respond to the concerns people have that the Bill effectively condones what many would regard as illegal occupation? Jonathan Turner: First, I do not accept that it is an illegal occupation. Many international lawyers will say that the settlements are illegal. This is based on article 49 of the fourth Geneva convention, which prohibits a state—an occupying power—from transferring part of its population into an occupied territory. But conducting a business is not transferring population. It is not just me who says this. The Supreme Court said it in Richardson v. Director of Public Prosecutions. It said that conducting a business in the west bank does not make the private operator of a factory a person who is promoting the transfer, by the state, of people into occupied territory. Running a business is not transferring people. It is sloppy thinking to say that the settlements are illegal. Companies operating in the vicinity of settlements do not normally operate in residential areas anyway; they normally operate in trading estates outside the residential areas. It is sloppy thinking to say that operating the factory, selling the goods or buying the goods is illegal under international law. It is not. Steven Barrett: All I would say is that what you think about the situation in the middle east is a personal political opinion. As law, it is important that we get back to a healthy relationship with international law, which is understanding the role of incorporation and your role in controlling the flow of international law into this jurisdiction. When the President of the Supreme Court corrected this for us lawyers, presumably to pass on to people like you, he speculated that it might be because we are so used to the EU. For 40 years, EU law was supreme here, which meant its being in charge. That meant that Ministers could be told, “No, Minister, that policy is illegal,” or “No, Minister, you cannot do this.” That has been going on for so long that many of us, simply by a form of muscle memory or attachment to that, are used to groping for some legal reason not to do things. Now the EU has gone. International law has never been supreme; it is not supreme anywhere, and it has certainly never been supreme here. So you—all of you, collectively—need to come to terms with the power and responsibility that you have. If you think something about the situation in the middle east, or if you think something else about the situation in the middle east, you must sort it out. We will use democracy as a mechanism for settling the issues and seeing what the voters think, but that is the system that we have, and it is very important that we operate in it. Really the only important part of Mr Hermer’s statement, which I saw this morning, is where he says, “You can do this.” Honestly, that is all you need to know. But groping around for just a resolution of the UN, which is a pretty weak source of international law anyway, and then looking at its wording and trying to say, “That means you can’t pass an Act of Parliament here”—no. That is constitutionally eccentric. If somebody will allow me, I do have drafting concerns about the Bill. I do not know whether we will get to those, but I would like to raise them if I can.
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- 11:53
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Ms Anum Qaisar (Airdrie and Shotts) (SNP)Scottish National Party- Quote
- Q You said that you had some concerns about the drafting of the Bill. Can you explain them, please? Steven Barrett: Yes. Mr Hermer actually flags them himself, and he is right. Paragraph 6 of the schedule is a constitutionally unique event. Given everything that I have said and explained to you here, we have never recognised all international law as binding. On my reading of that paragraph, it seems to me an extraordinary statement. If you do not amend that, I seriously suggest—well, I would just get rid of it, to be honest, because it is giving supremacy to international law. It is conceding the power that the voters gave you and giving it to this great, great mass that is thousands of years old. People will be able to reach into the great mass that is international law and pluck out everything. You could probably pluck out bits that contradict the other bits. They will be able to pluck or draw out something to justify whichever boycott they want. The people who are motivated to do boycotts are very strongly motivated to do them. They will use that paragraph. I also think that they will use paragraph 4 on finance, which is just a bit woolly. I think it could be tightened up. I would be very happy to help with the drafting; I might write a note after this, if that would assist anybody. I am always happy to help Governments of any colour. Should the Government change, I will be happy to help—on law only. I wanted to raise those two issues. Paragraph 6 in particular is really a constitutional aberration. It gives away your sovereignty to a great, amorphous entity that is not properly controlled. At least the EU had structures and was under control. If you think of international law as like a territory, it has carved out a space for itself and it is stable. The rest of international law is not stable.
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- 11:53
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- Chris StephensScottish National Party
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- Q Amnesty International says that the Bill will make it impossible for public bodies to use their procurement and investment policies to incentivise ethical business conduct that is human rights compliant. Dave and Yasmine, do you agree with that statement? Peter, can you expand on that? Yasmine Ahmed: Yes, I certainly agree with that. Essentially, what we see is that the Bill is going to restrict the ability of public bodies—a wide definition, as you know—to carry out their human rights due diligence responsibilities under the UNGPs. They have those responsibilities and international obligations, and what the Bill does is wholly suffocate the ability of public bodies to carry them out. Essentially, the Bill does that by saying that a public body is not able to take account of the human rights record of a state, or companies operating within a state that is carrying out human rights abuses, except in specifically exempted cases. As we know, and as has been highlighted to you in previous evidence, the specific exemptions have significant loopholes, but even leaving those aside, there are still international crimes and human rights violations that are not caught. I will give you an example: suppose I am a public body and I want to stop investing in a military company that is supplying weapons to Saudi Arabia and UAE that are being used to commit war crimes in Yemen. This Bill will stop me from being able to do that. We know that the Bill will mean that public bodies cannot carry out and adhere to their due diligence responsibilities. Something that is extremely pernicious from our perspective is that the Bill will have a significant chilling effect on public bodies. If I am a public body, what incentive do I have to do appropriate due diligence—both environmental and human rights due diligence? If I do that and something arises, and then one of the enforcement bodies imposes a notice on me that requires me to send all the information I have about the decision I made, given the fact that the Bill is so ambiguously worded that it only needs to be “a consideration”, how am I to know that I will not be penalised? As a public body, I would not be in anyway incentivised. The Bill runs a coach and horses through ESG responsibilities, human rights responsibilities and due diligence responsibilities. I know the Government have consistently said that this is about public policy and ensuring that public bodies do not carry out their own foreign policy. What the Bill actually does is stifle public bodies and the Government from carrying out their own responsibilities and, on the face of it, complying with international law. It is totally inconsistent as well with their own business risk guidance and the implementation of their own UNGPs. It is a hammer through that. Anyone who tells you that it is not has not adequately read the Bill. Before I hand over to my colleagues, I would just say that I am a lawyer who has been working in this jurisdiction for a number of decades now, and I can say that I have never read a piece of legislation that is as badly worded as this. It is ambiguous and runs a coach and horses completely through ESG responsibilities and business and human rights responsibilities. I think it is a very pernicious and worrying piece of legislation, and I am very happy that the Committee is seized of the matter.
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- 00:00
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- Felicity BuchanConservative
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- Q I have two questions, so perhaps you can be brief on the first one. The first is quite simple: are you supportive of the BDS movement? Yasmine Ahmed: As a matter of principle and policy at Human Rights Watch, we do not take a position on BDS. What we do say very clearly is that individuals, and whoever wants to, have the right to engage in BDS. It is part of their right to freedom of expression, association and assembly. Dave Timms: For us, the position is exactly the same. Peter Frankental: We do not take a view on BDS either, but we support the right of people to advocate for BDS. Can I just expand on that a little bit? More widely, we see the situation where human rights advocates and human rights defenders all over the world are delegitimised and stigmatised because of their human rights advocacy. All kinds of pretexts are given for this, such as offending public morals, being disloyal to the state and—as in this particular case, with this legislation—racism and antisemitism. There is no reason in principle why any human rights advocate should not advocate for the human rights of Palestinians or criticise the human rights record of the state of Israel, and they should not be tarred with the brush of racism or antisemitism. That is a very dangerous road to be going by. If that approach is taken, will human rights advocates who draw attention to human rights violations of the Rohingya in Myanmar and the track record of the Government of Myanmar be accused of being anti-Buddhist? Will those who criticise the human rights record of the Indian Government with regard to the treatment of minorities be accused of being anti-Hindu? What of those who criticise human rights violations in the Gulf states? Anyone who advocates for BDS, which is a peaceful, non-violent means of achieving change and holding Israel accountable for human rights violations—Israel has enjoyed a considerable degree of impunity over the years—should be able to do that without being tarred with the brush of racism or antisemitism.
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- 12:09
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- Felicity BuchanConservative
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- Q You have raised concerns that the Bill may prevent ethical procurement decisions, but would you not agree that there is nothing in the Bill that prevents, for instance, the divestment of fossil fuels, provided that it is not country-specific, and that there are numerous exceptions in the Bill such as on labour market misconduct and environmental misconduct? We are very much alive and dealing with ethical procurement decisions here.
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- 12:09
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- Alex NorrisLabour
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- Q To build on that point, we have heard very strongly from panellists that you do not believe that the exceptions in the schedule to the Bill will protect environmental concerns. We have previously heard from the Government that they believe that it does. Assuming that that is their intent, how would you bridge the gap between what is on the face of the Bill and what is said to be the intention of that exception? Are you saying that it is irredeemable, which I think was the point that you made, Yasmine? Dave Timms: You could increase the scope of that exemption, but you would still be left with all the problems that have been pointed out. You could have the environmental misconduct exemption extended to any environmental issue or any issues surrounding environmental harm, or include anywhere that there is a breach of international environmental treaties or agreements, but that would still leave you with the problem that Yasmine pointed out: the fact that in so many cases, environmental problems are related to human rights abuses. Look at logging in South America, where there is a high degree of overlap with human rights abuses; you would not be able to do it. You also would not be able to deal with the problem you have in clause 1, which is that any activity from civil society would be dragged into this as well. Often environmental organisations such as Friends of the Earth will campaign around concerns that overlap the environment and human rights. You might be able to chip away at the damage, but it is really hardwired into this from the start. We have some experience of dealing with the kind of language in clause 1, which talks about a “reasonable observer”, because it is really similar to the chilling effect caused by the language in electoral law that bites on third-party campaigners, where you must have regard to what is reasonably intended to influence voters. That has had a huge chilling effect, which has been documented by parliamentary Committees, on the activity of civil society in campaigning on legitimate issues around election periods. We have seen language like this: it has been drafted in a way that is vague, and language similar to this has been shown to have a chilling effect on the activities of legitimate civil society organisations trying to achieve legitimate aims.
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- 12:17
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- Dr EvansConservative
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- Q All of you were very clear to set out your position on BDS for the individual—namely, that you think it is right. I think everyone here would agree that it is an individual choice. The Bill is about public bodies and their position on BDS. Does your organisation support the idea that public bodies should be able to choose to carry out BDS—yes or no? I will just go down the panel for answers. Yasmine Ahmed: What is very clear is that our organisation says that public bodies have to discharge their responsibilities under business and human rights of the UNGPs, and they have a responsibility to comply with international law. That is the very point that we are trying to make here. Let us set aside BDS, because what the Government are doing with this Bill is stifling the ability of public bodies to discharge the Government’s own responsibilities and obligations under the UNGPs and under international law. That is what this Bill is doing. That is the effect of the Bill and that is the problem with the Bill. I wholly agree with Peter’s position on BDS, as does Human Rights Watch, and the right of individuals and the importance of people being able to advocate for the rights of Palestinians as they advocate for the rights of other individuals, but that is not what we are talking about here, because the effect of this Bill—actually, the crunch of this Bill—is that it stops the Government complying with their own responsibilities and international obligations.
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- 12:20
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- Dr EvansConservative
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- Q Very quickly, to come back on that point, do you think that foreign policy is the remit of local authorities or national Government? Yasmine Ahmed: What I think, as I have said, is that when a public body is making financial decisions on procurement investment, it should take account—it has to take account—of the human rights and environmental implications of what it is doing. That is the answer.
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- 12:21
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- Dr EvansConservative
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- It is an answer to a separate question.
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- 12:21
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- Ms QaisarScottish National Party
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- Q Thank you for joining us today. What impact will the Bill have on the UK’s relationship with those in the occupied territories, and with Palestinians across all four nations here who wish to exercise freedom of expression so that the actions of the Israeli Government can be held to account?
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- 12:22
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Brendan Clarke-Smith (Bassetlaw) (Con)Conservative- Quote
- Thank you for your input today. You mentioned that people may be subject to equalities claims with the way the law is at the moment. Do you not feel that having a clear policy on this, both nationally and in terms of foreign policy, can protect local authorities if they diverge from it? That is why this Bill makes the picture a lot clearer for local authorities and avoids that situation where they may put themselves under threat and in breach of equalities laws.
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- 12:24
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- Ms QaisarScottish National Party
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- It was to ask what impact the Bill will have on the UK’s relationship with those in the occupied territories and with Palestinians here, across all four nations, who wish to exercise their freedom of expression so that the actions of the Israeli Government can be held to account.
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- 12:25
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- Felicity BuchanConservative
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- Q In your advice, you argue that the Bill places unprecedented restrictions on public authorities, but would you not agree that there are already substantial restrictions on public authorities, for example, to ensure good value for money or to comply with the UK’s obligations under the Government procurement agreement? Richard Hermer: Good afternoon, Minister. Of course, law imposes on all decision makers—be it local authorities or public bodies—a range of restrictions through law on their decisions, whether it is a purchasing decision or any other type of decision. That is what the legal framework does. I have identified in the two written opinions why aspects of this Bill are unprecedented in respect of its impact on human rights and international law. I agree with you as a matter of generality, but I disagree with you, Minister, as to this particular Bill.
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- 12:31
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- Chris StephensScottish National Party
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- Q In the advice you gave the Labour party, you said the Bill “effectively equates the OPT with Israel itself and is very difficult to reconcile” with Britain’s support for a two-state solution. Will you expand on those comments? Richard Hermer: Yes, of course. The manner in which the Bill does that is it affords a unique protection to just one category, which is Israel, the occupied territories and the Golan Heights—one protection from being placed on the list of exceptions—whereas any other country in the world can be placed on the list of exceptions and therefore subject to adverse economic decisions by public bodies through the fiat of the Secretary of State or the Cabinet Minister. That power is denied to the Secretary of State or Minister in respect of anything to do with Israel, the occupied territories or the Golan Heights. It is accorded a special status, and that can only be changed by primary legislation. In that sense, it separates out Israel and the OPT from the rest of the world.
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- 12:32
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- Wayne DavidLabour
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- Q Following on from that very point, your two papers make the point very strongly that the Bill contradicts, or at least strongly questions, the British commitment to international law. Could you expand slightly on that because, as we all know, the British Government are firmly committed to international law? Are you suggesting that this questions at least the Government’s commitment to international law? Richard Hermer: Yes. I am mindful that we have only 15 minutes, probably now 10. Can I just give you a brief framework, because I think I have to disagree with the outline that Mr Barrett gave you? International law has always been key to this country, and very broadly speaking it operates on two levels. The first is on the international plane. That is our obligation to comply with international law at the international level. Secondly, in so far as it has been incorporated into English domestic law, the Government have to comply with it on a domestic level. It is the international law level that I flagged up first in my written advice. As a country, we have always played a leading role in upholding and, indeed, creating international law. Both main parties have a proud history of that. It has fallen into slight disrepute in more recent times as we have had some legislation that expressly seeks to avoid our international law obligations, but generally speaking, that is something we can be proud of. There are two aspects in which that is relevant: first, because the Government have contended that this does comply with our international law obligations, and secondly, because the Committee will no doubt wish to ascertain whether it in fact does or there is a risk that it does not. I hope that answers your question, Mr David.
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- 12:34
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- Dr EvansConservative
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- Q We heard from a witness in the session the other day about comparisons. His position was that the Bill is relatively somewhere in the middle compared with somewhere like France or some of the states in the US. Given your experience, what is your thought on how this fits into the international comparisons? Richard Hermer: There are some examples of American states passing what I would describe as more extreme versions of this. France is interesting because the Strasbourg court has looked at France on two occasions and the most recent one upheld that its laws were incompatible with article 10. There is not much else out there by way of example. Israel has its own laws on BDS. I am not sure where that takes us. Ultimately, Parliament has to look at this Bill on its face. How it stands up in comparison does not tell us anything about international law—it might help with the context, but beyond that, I am not sure that it would necessarily help the Committee.
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- 12:35
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- Ms QaisarScottish National Party
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- Q Thank you for joining us today. Clause 4 has been referred to as a gagging clause by some. Why can it be seen as so problematic? Richard Hermer: I am firmly of the view that it is incompatible with article 10 of the European convention on human rights, which is incorporated into our law via the Human Rights Act. I have listened carefully to the views of others, not least the way that it has been explained by the Minister, and I respectfully disagree. There are two elements to this. First, who does it bind? There is no dispute that it does not bind a public authority per se, but it would undoubtedly bind a leader of a council or a vice-chancellor of a university—that is, the full array of public authorities or bodies acting as a quasi-public authority. Certainly, it is incapable of engaging the free speech of those individuals. Secondly, there is an analogue to the free speech of the individual in article 10, which is also the right of the public to have information. This engages article 10 in both those ways. Once we have engagement of article 10, it then falls to the Government to justify it under article 10(2) I have set out in my first opinion the text of article 10(2). There are a number of hurdles that a Government would have to pass. We should also remember that this is not just in the context of BDS; this is in the context of any country and any conflict. I set that out in paragraph 34 of the opinion that the Labour party published. In order to establish that there was no breach of article 10, it would need to be shown that the restrictions were necessary “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” It is almost impossible to see how there could be a justification here. As matters stand, this would be deemed incompatible with the Human Rights Act.
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- 12:35
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Nicola Richards (West Bromwich East) (Con)Conservative- Quote
- Q Given that the BDS movement targets almost exclusively Israel, do you think it is appropriate that we require primary legislation for Israel? Richard Hermer: No, I do not. In the human rights movement, there are lots of campaigns that focus on one particular country. For example—and I do not wish to be trite—if you look at the Rohingya, we are targeting Myanmar. If you look at what is going on in Yemen, most of the campaigning is around Saudi Arabia. You can pick examples from all around the world. Undoubtedly, the BDS movement, as it is known, focuses on Israel. But often human rights campaigns focus on individual counties, because it is often individual countries that are committing human rights abuses. From a legal and human rights perspective, I do not feel that there is a need for additional protected status—all the more so, if I may say, in respect of the occupied territories and the distinction that is drawn there. I find that, on all sorts of levels, very hard to understand.
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- 12:39
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- Speaker
- Wayne DavidLabour
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- Q Apart from the objections you have clearly set out in writing and orally, you make a number of comments about the poor drafting of the Bill. Could you give us a few examples of poor drafting that will lead to all sorts of unintended consequences and complications? Richard Hermer: I think I set out quite a few in writing. First, clause 1 could be taken to mean something entirely different to that which I think the Government intended—to just focus on particular territorial disputes rather than, more generally, the human rights record of a company. I am afraid that, again, I disagree with Mr Barrett about the dangers of the “reasonable observer”. In some areas of the law that is a common phrase. But here, if the Bill proceeds, it is a pretty binary question: have you offended the Act and taken into account considerations that you should not, or haven’t you? I do not understand what the test of reasonable observer adds beyond uncertainty and, potentially, injustice. On that analysis, you can have no intention to break the law, but a reasonable observer may nevertheless consider that you did. The vagueness there is potentially very troubling. There are also the other examples I have put out in writing. Obviously, a great deal of oxygen has been taken up on BDS, and one can understand why that is. But I would stress—as I hope I have done in writing on two occasions—that the impact of the Bill extends across the whole panorama of human rights and this country’s engagement with human rights, not just one particular incident. It engages not simply what local authorities can do, but the full range of public bodies in this country.
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- 12:39
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- Felicity BuchanConservative
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- Q The BDS movement almost exclusively targets Israel. Can you talk about the effect of the BDS movement on the Jewish community and on community cohesion? Melanie Phillips: Many people, pretty understandably, draw a distinction between criticism of Israel and antisemitism. However, my view is that what we are all talking about when we talk about concerns over the way Israel is treated in public discourse is not criticism but a unique campaign of delegitimisation and demonisation. Now, it should not follow that, even if you demonise the state of Israel, British Jews get it in the neck. But it is a fact—it is on record—that every time the public prints are full of not just criticism of Israel’s behaviour but a presentation of Israel in which it is a unique human rights abuser in the region, attacks on British Jews, both verbal and physical, go up. So there is in practice—whatever the reasons you may adduce—a complete connection between the two. In my view, that is not really surprising. For many people in this country and elsewhere, their understanding of Judaism, the Jewish people, Jewish history and the connections between all those things and the land of Israel is extremely limited. Many people do not understand how intimately Jewish identity—Jewish religious identity—is wrapped up with the land of Israel. For all those reasons, a boycott movement that stigmatises Israel, singles it out for treatment afforded to no other country and identifies it, therefore, inescapably as a unique evil in the world must have an impact on the Jewish community.
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- 12:45
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- Felicity BuchanConservative
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- Q I have one quick follow-up question. There has been a lot of talk about clause 4, which prohibits statements of intent to boycott. Would you agree that we need clause 4, because a statement of intent sows community division without achieving anything? Melanie Phillips: Yes. A statement of intent is clearly no more or less than that, but the evil of a statement of intent is that it is a statement of delegitimisation—a statement that Israel is uniquely evil, that it uniquely requires this kind of approach. Therefore, any Jewish person in Britain who supports Israel is deemed to be fair game, and any Jew is deemed to be fair game because people assume, rightly or wrongly, that they identify with Israel.
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- 12:46
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Steve McCabe (Birmingham, Selly Oak) (Lab)Labour- Quote
- Q I understood the Bill to be largely about the Conservative party meeting its manifesto promise to address BDS—in fact, the Prime Minister restated that recently. If that is the main purpose of the Bill—and I have to say I am in favour of that—do you think we need the exemption that means that Israel and the Palestinian territories are the only places that the Secretary of State cannot regulate for? Does it add anything extra to the Bill? Melanie Phillips: I think there is no contradiction between the two. As you say, the Bill is the fulfilment of a manifesto commitment. The manifesto commitment is a broad one, and the Bill is a broad one, as you heard from your previous witnesses. There are exemptions of different kinds, and the particular exemption you are talking about, which singles out Israel, is done for a particular reason: in a Bill that deals generally with boycotts, there is one boycott that stands out as unique, which is the boycott movement against Israel. It has characteristics that do not apply to any other action taken against any other country, group or cause. In the view of the Government, and I agree with this view, it is a uniquely evil impulse, designed uniquely to destroy Israel as the Jewish state—as the Jewish homeland—and with malign potential repercussions on the Jewish community. Consequently, because it is a unique situation, it requires a specific exemption, as it is so bad that it cannot be ever thought that it could ever happen.
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- 12:47
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- Wayne DavidLabour
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- Q Could I say that I have regularly, over many, many years, read your excellent articles in The Times and indeed elsewhere. I understand that you feel very strongly about this issue, and I personally have gone on record many times as being implacably opposed to the BDS movement. However, one worry I have is that much of the mechanism in the Bill requires exemptions, and the Government have indicated that there will be some exemptions, but they have not mentioned China, and I do not think they will mention China. Yet there is tremendous concern among the Uyghurs, for example, as we have heard in this Committee, about the possible curtailment of action at a community level against China. Is that a concern you share? Melanie Phillips: I am certainly concerned about China. And, by the way, thank you very much for the compliment—flattery will get you everywhere. I am concerned about China, and I would like and prefer our Government to take a stronger view about China—a stronger approach to China. But that is not really the point at issue here; the point at issue here is that it is for the Government to determine foreign policy—I may disagree with that policy, but it is for the Government to determine it. If local authorities or public bodies—bodies taking public money—go off on a frolic of their own and boycott China, Saudi Arabia or whoever, you have a kind of anarchy, and you cannot have that. To me, that is the issue. As I understand it from what Ministers have said and from my reading of the Bill and these exemptions—obviously, you realise I am not a lawyer—the Bill allows public bodies who take a view that the procurement decision they are being asked to take would involve the use of Uyghur slave labour in China to use the exemptions to not go down that procurement road. But the exemptions are limited to a number of areas that the Government have deemed to be on the right side of the line when it comes to saying that it is for the Government of the day to determine foreign policy, which I think is a sensible rule for the Government of the country.
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- 12:50
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- Nicola RichardsConservative
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- Q We have heard evidence that some believe the Bill could make division worse, but many others have argued that that would not be the case. Part of what the BDS movement calls for is for people to stop Palestinian organisations working with Israeli organisations. Do you think that is evidence, and is there any more evidence, that the Bill would not make community tensions worse and seeks to make them better? Melanie Phillips: I do not think the Bill itself seeks to make tensions worse or better, but it is a fair question to ask whether it will have that effect both here and in Israel and the disputed territories. The fact is that people who advocate boycotts of Israel over its behaviour in those territories, which classically involve targeting companies that have a presence in them, believe that this is hurting Israel. Well, it does, but the people it really hurts are the Palestinian Arabs who work for these organisations and companies. They have said over many years that they wish that the west would not go down this road. It is a disaster for them when it goes down this road. They and their families depend for their livelihoods on these companies. Boycotts are performative from their point of view—they are performative virtue signalling, which not only does not address the political challenges and difficulties that they believe they have but actually takes away their livelihoods. So this hurts them, and it does nothing about community divisions in these areas, because a state of—whatever you like to call it—war, insurrection, permanent threat of terrorist violence and so on engulfs this area, and Israelis are being killed, or there are attacks intending to kill them, literally every day. This does not affect that at all. What it would do, in my view, as I have said already, is make the situation of British Jews worse—it would affect it very badly. It would increase community divisions here; it would increase suspicion, aggression and division between the Jewish community and the non-Jewish community here.
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- 12:52
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Bob Blackman (Harrow East) (Con)Conservative- Quote
- Q We have had a succession of witnesses over our various evidence sessions. Some have suggested strengthening elements to the Bill. I do not know whether you have been following the evidence, but do you have any suggestions as to how the Bill could be strengthened, rather than weakened, as some people have suggested?
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- 12:55
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- Speaker
- Steve McCabeLabour
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- I think my question was the same. You said that the Bill would benefit from amendment. I wondered what you had in mind. Melanie Phillips: As I have said before, I am not a lawyer, and I really would not presume to say what amendments there should be. I would suggest that all Bills, as I am sure you know better than I do, are susceptible to amendment and would benefit from amendment. When I wrote what I wrote, I was really reflecting that I had seen various people make various observations about things they thought were not right. I do not know whether that is right or not, but I am absolutely sure that there is scope for amendment. Consequently, I would hope that the Bill would be amended for the better. That was really the only thing I was trying to get at.
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- 12:55
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