Economic Activity of Public Bodies (Overseas Matters) Bill

Jonathan Turner, chief executive of UKLFI, was one of several people asked to give evidence to the UK parliamentary committee discussing the Economic Activity of Public Bodies (Overseas Matters) Bill on 7 September 2023. This Bill is intended to prevent local authorities and other public bodies from introducing their own boycotts, divestments or sanctions against particular countries or territories of whom they disapprove.

Turner had submitted written evidence to the Committee in advance of the hearing (available HERE)

During the hearing, Felicity Buchan MP asked Turner whether the Bill was in line with the UK’s obligations under UK law. Turner said it was in line with law and would help ensure that decisions of public authorities would not put the UK in breach of international law, in particular the World Trade Organisation’s Government Procurement Agreement.

Asked what he thought of the advice of Richard Hermer KC, whose opinion was commissioned by the Labour Party, Turner said he believed that most of it was wrong, as set out in his written submission, and that an additional note sent by Hermer to the Committee the previous night was also incorrect.

Hermer claimed that the bill would affect a profound change in local government.  Turner argued that there are already very substantial restraints on the autonomy of local government regarding procurement and investment. Some will be replaced by this bill, and some will continue. Although Hermer had now accepted that section 17 of the Local Government Act 1988 substantially restricted procurement by local government bodies, he said it only applies narrowly to local government. Turner explained that Hermer had ignored EU legislation which is much broader and affects other public bodies.  Turner said that this Bill together with the Procurement Bill, currently in its final stages in the UK Parliament, will replace pre-existing EU legislation with UK legislation.

Alex Norris MP asked if the witnesses were content with the phrase “… would cause a reasonable observer of the decision-making process to conclude that the decision was influenced by political or moral disapproval” in clause 1 of the bill.

Turner replied that the “reasonable observer,” or “reasonable person”, is used throughout English law. It is the basis of the law of negligence, and the interpretation of contracts, legislation and other documents is based on how they are understood by the reasonable person. It provides an objective test instead of looking at the subjective intention of the maker of the statement and that has the benefit of greater certainty, greater clarity, and that is why it is used.  He said he was very happy with this formulation.

Dr Luke Evans MP asked whether clause 4 is necessary, and whether it was compatible with article 10 of the ECHR. Clause 4 would prohibit public authorities from publishing statements that they intend to contravene clause 1 or would do so if it were lawful. Turner replied that certainly parts of this clause are necessary to prevent the Leicester City Council type of resolution to boycott goods from a particular territory “as far as the law allows.” Turner said that this is problematic, firstly because it has the same impact on community cohesion as any other BDS measure.  Secondly it creates confusion and difficulty for the staff that have to implement it. They have to work out what the law does allow in terms of boycotting, what the facts are, then to go to their lawyers, and there would be arguments  This would discourage them from accepting certain tenders.

It does not conflict with human rights. It only binds public authorities, and would not stop individual members saying they support BDS, or they don’t like what particular states are doing.  And 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.

Another MP asked “How would you respond to the concern  that people had that the bill effectively condones what many would regard as illegal occupation?”

Turner replied “Many international lawyers will say that the settlements are illegal. This is based on article 49(6) of the 4^th Geneva convention which prohibits an occupying power from transferring part of its population into occupied territory.  But conducting a business is not transferring population. The Supreme Court said in Richardson v DPP that conducting a business in the West Bank does not make the operator of the factory a person who is promoting the transfer by the State of people into occupied territory. It is sloppy thinking to say that settlements are illegal therefore operating the factory or selling the goods or buying the goods are illegal under international law.”

A video of the hearing is available HERE

Transcript HERE