Amendment 16

Economic Activity of Public Bodies (Overseas Matters) Bill - Committee (2nd Day) (Continued) – in the House of Lords at 9:00 pm on 17 April 2024.

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Baroness Bryan of Partick:

Moved by Baroness Bryan of Partick

16: Clause 3, page 2, line 28, leave out paragraphs (b) to (d)Member's explanatory statementThis amendment and others are consequential to another in the name of Baroness Bryan of Partick to Clause 17, removing Wales, Scotland and Northern Ireland from the territorial application of the Bill.

Photo of Baroness Bryan of Partick Baroness Bryan of Partick Labour

My Lords, I thank my noble friends Lady Ritchie of Downpatrick and Lord Hain, and the noble and learned Lord, Lord Thomas of Cwmgiedd, who, by adding their names, demonstrate the breadth of opposition to the inclusion of the devolved Administrations in the Bill. As noble Lords can see, Amendment 16—and the consequential amendments that I will not bother to list now—would remove Wales, Scotland and Northern Ireland from the territorial application of the Bill.

We are just 25 days away from the 25th anniversary of the first meetings of the Welsh Senedd and the Scottish Parliament in 1999. Those institutions have been around long enough for Ministers to be aware that they are not simply large local authorities. The official advice for civil servants and policymakers on taking account of devolution, as updated in 2020, reads:

“Devolution has fundamentally changed the constitutional arrangements of the UK. Officials need to be aware of how devolution affects the policies they work on or the public services they manage”.

The Government might have been well-advised to consider those guidelines when drafting this Bill.

Intergovernmental relations sometimes feel like one step forward and two steps back. There was the Dunlop review, whose whereabouts were raised in this House numerous occasions before it was discovered in the levelling-up department, where it was somewhat reinterpreted. More recently, there have been a number of important pieces of legislation where the Sewel convention has been ignored. Rather than using the Sewel process as a way of arriving at a shared approach, it has now become common practice to ignore it and take action without legislative consent.

The Interparliamentary Forum report published in January noted that there were

“ongoing challenges of intergovernmental relations including operation of the UK Internal Market Act, and the scrutiny of intergovernmental working”, and

“substantial challenges in reaching agreement between the governments of the UK”.

Some academics have put this down to the Government having a unitary mindset, even after 25 years of devolution, and not accepting that there has been a fundamental change in the constitution.

Both the Welsh and the Scottish Governments have expressed their serious concerns about this legislation, arguing that the Bill is disproportionate and unnecessary, and that it is not clear what problem the UK Government seek to address by including Scottish and Welsh Ministers in its scope.

The Bill is unnecessary because the WTO has rules in place that all UK Governments are expected to adhere to. Neither the Scottish nor the Welsh Government have taken action outwith the terms of the WTO or other trading partners. Indeed, it is the UK Government who have been subject to challenge for breaching WTO rules and other international agreements. There is a strong case for greater scrutiny of UK trade deals and for the devolved Administrations to be given a role in those processes.

As it stands, this is probably the most restrictive legislation that the Government have so far tried to impose on devolved Governments. The noble Baroness, Lady Ritchie, is unable to be here this evening, but she has suggested that as devolution has returned to Northern Ireland for only some nine weeks, it is still in the process of bedding down and it would be extremely unfair to impose a requirement on the Executive and the Assembly for legislative consent. That would cause unwarranted division in the Executive and the Assembly at this time, when they need to work together. The Bill could serve to undermine not only the principles of devolution but the carefully negotiated political settlement in Northern Ireland.

In relation to Northern Ireland in particular, could the Minister outline what discussions have taken place with the Ministers for the Economy and for Finance and the Northern Ireland Executive regarding the impact of the Bill? The noble Baroness, Lady Ritchie, would like an assurance that it will not be forced on public representatives in Northern Ireland.

Can the Minister answer the question raised by the Scottish Parliament? How could a decision taken by the Scottish Government in relation to a particular procurement or investment process be mistaken by anyone for an alternative UK foreign policy? Can she also respond to the Welsh Government’s concern that the UK Government will go over the heads of Welsh Ministers in relation to the Welsh devolved authorities? On this matter I welcome Amendment 20A, which seeks to address that point. I am also pleased that my noble friend Lady Chapman, through her amendment in this group, is attempting to achieve a similar outcome, albeit in a more succinct manner.

Many of the public bodies that expect to be covered by this legislation are concerned about Clause 4, which they have argued will gag public bodies and is likely to be a disproportionate interference with the right to freedom of expression, as protected by Article 10 of the ECHR and given domestic effect by the Human Rights Act. The devolved Governments are required by law to act within the ECHR, which obliges them to uphold a minimum level of human rights protection. The UK Government should not put the devolved Governments in a position where they cannot uphold their statutory commitments.

There are many reasons why the Bill should not pass, not least because it is an embarrassment to this Parliament. Any Bill that attempts to prevent people who hold different political or moral views from the Government expressing those views with the threat of legal redress belongs in a totalitarian regime, not in a constitutional democracy. That is particularly the case when the Government seek to silence other elected representatives. Demeaning their electoral mandate is totally unacceptable and should be opposed.

Photo of Lord Hain Lord Hain Labour 9:15, 17 April 2024

My Lords, I apologise to the Committee for speaking so soon after my previous contribution, but I will speak to my Amendment 20A. I associate myself with the amendments of the noble Baroness, Lady Bryan, which I have signed.

I am grateful to the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Randerson, for adding their names to my Amendment 20A. This iniquitous Bill challenges the very foundations of devolution in the United Kingdom—namely, that decisions should be taken at the local level, and that local leaders should be answerable for them, rather than decisions being taken at the centre by remote politicians and officials. I say that as a former Secretary of State for Wales who helped bring in the Government of Wales Act 2006, which strengthened the devolution possibilities for the now Welsh Parliament —the then Welsh Assembly. My amendments and those of my noble friends address one aspect of that: they seek to remove from the Bill matters for which the Governments of Scotland, Wales and Northern Ireland should properly be responsible.

I will speak about Wales in particular. The Explanatory Notes acknowledge that the Bill affects the decision-making of the devolved Administrations. The memorandum of 8 September 2023 from Rebecca Evans MS, the responsible Welsh Minister, set out in detail the way in which the Bill intruded into devolved competences in Wales and why it was right to withhold the legislative consent of the Senedd—which has occurred.

Deciding whether a particular purchase or contract should be made by the Welsh Government, or any other public authority in Wales, is patently a function exercisable in relation to Wales under the terms of Section 3 of the Wales Act 2017. The conduct of foreign affairs is reserved to the UK Government under that Act, but the making of moral or political judgments about the conduct of foreign states is not conducting foreign policy. That is a crucial distinction denied by this authoritarian Bill, which abrogates powers to Ministers so that they can act by executive diktat—in this case, by overriding the devolution settlement in respect of Wales, Scotland and Northern Ireland.

Moral and political judgments are made by every individual—and so they should be; they should not be dictated by the centre. That means that the decision-maker should be at the lowest accountable level. In the case of Wales, decisions should be taken by a county or county borough council, the Welsh Government or the Senedd. Those authorities would be answerable for the moral and political judgments they make at the local or all-Welsh level. Are the Government seriously saying that they have a monopoly on moral and political judgment? That is what the Bill saying, which is both arrogant and absurd. Council tax payers in Neath, Gower, Wrexham or the Vale of Glamorgan are best placed to decide whether their councils are making the right decisions, and electors in Wales can make the same decision about the Welsh Government’s and the Senedd’s choices.

I cannot agree more with the Welsh Government’s view that the Bill is disproportionate and unnecessary, and I support the Welsh Parliament’s decision to refuse to give it legislative consent.

There are also major constitutional issues. If the Bill is enacted, it will fly in the face of the fundamental constitutional principle articulated in Section 2 of the Wales Act 2017, with parallel provisions, of course, for Scotland and Northern Ireland, that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of—in this case—the Senedd in Wales, the Parliament of Scotland or the Assembly of Northern Ireland.

The Bill would also fly in the face of the principle of subsidiarity to which the Government ostensibly subscribe: namely, that decisions are made at the level closest to the citizen, consistent with effective delivery.

So far as our amendments are concerned, because there is a single jurisdiction of England and Wales—something that the noble and learned Lord, Lord Thomas of Cwmgiedd, has reported on compellingly—the amendment of Clause 17 to remove the word “Wales” would not work technically. For that reason, it is necessary to achieve the removal of Welsh devolved bodies from the Bill in a different way from the way that can be achieved for Scotland and Northern Ireland, because England and Wales have a common legal framework and that is not the case for Scotland and Northern Ireland. That is done by my amendment to the schedule. This would add the Welsh Government and public authorities that are responsible to that Government to those bodies excepted from the provisions of Clause 1. Effectively, it would mean that the Bill would not apply in devolved Welsh areas.

Our amendments are an opportunity for these issues of devolution to be canvassed, for the devolution settlement to be preserved and for the rights of the other Governments in United Kingdom and their legislatures to be asserted. I hope that the House, in some way, will manage to protect the devolution settlement, because otherwise the future of the United Kingdom is threatened.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

My Lords, it is a pleasure to follow the noble Baroness, Lady Bryan, and the noble Lord, Lord Hain, and to essentially agree with everything they said. I rise to offer Green support; I am not going to engage in the technical details, which the noble Lord, Lord Hain, set out so clearly, but I will simply say that this Bill should not apply to Wales, Scotland or Northern Ireland.

I listened to the debate on an earlier group, when the noble Lord, Lord Boateng, talked about a small nursery, run by a charity, deciding to ban oranges from South Africa. That obviously is not right—it is the sort of thing that the Bill appears to be addressing—but how much more so when we are talking about an entire devolved Administration? If we think about the kinds of examples that might apply here, let us say that one of the nations’ devolved Administrations might choose to block a supplier of staff uniforms because the clothing is made under abusive conditions in an abusive regime. How can it not be right that the people of Wales can decide for themselves that they do not want to see people wearing uniforms from that kind of source?

In the earlier group, my noble friend Lady Jones of Moulsecoomb pointed out how the environmental derogations are utterly inadequate. How can it be that the Scottish Parliament could not decide to ban food sourced from deforested areas of the Amazon from being served in the Parliament? Those are the kinds of things that the Bill is currently providing.

It is worth looking over the history of this a little bit. I think it was two Prime Ministers back—it is rather hard to keep track, but I am referring to Boris Johnson. Under Boris Johnson, it seemed that there was a real desire to pick fights with the Scottish Parliament and the Welsh Senedd in particular. Since then, we have seen some improvement; we have seen the Review of Intergovernmental Regulations, which said that

“decisions will continue to work on the basis of agreement by consensus”.

I think that is an important phrase to look at, although I note we have seen some backsliding recently, and perhaps this Bill is a symbol of that.

I put down a Written Question, HL3655, asking why no Westminster Minister attended the meeting on 21 March of the Interparliamentary Finance Committee Forum with Members of the Scottish Parliament and the Senedd Cymru. I did not get a substantive answer to that question, so I hope we are not seeing that kind of backpedalling here.

It is worth running through the fact that Scotland and Wales have already very clearly indicated that they will not provide consent for the Bill, and the context in which that happened. In Scotland, we saw human rights groups, unions and environmentalists urging Scottish Ministers to reject the Bill. Then the Government, having listened to those representations from the people of Scotland, came out and acknowledged that this was a wholly unnecessary and unwelcome alteration to Scottish Ministers’ competence. This is what Scottish Ministers have said. The Bill is telling them that decisions should not be made on ethical or moral matters, in Scotland, for Scotland.

In Wales, there was a campaign by 70 civil society organisations, including the TUC, Amnesty UK and Liberty. Senedd Members were told that this was an attack on freedom of expression and, again, on their right to make their own ethical decisions on investment and procurement. The Welsh Minister for Finance and Local Government said that the Bill was not compatible with convention rights or international law, and there was widespread criticism from the legal community. These are things that Welsh Ministers and the Welsh Government have said.

I can update what the noble Baroness, Lady Bryan, said about Northern Ireland. Just in the last few hours, the Finance Minister has written to Stormont’s Finance Committee opposing the Bill. We note that the DUP has said that there is unlikely to be agreement within the Executive on this. This presents real risks in Northern Ireland, as the noble Baroness outlined, and as has just been made very clear in the last few hours.

This is, in its own terms and in terms of what is it doing, an indefensible Bill. It is also, as the noble Lord, Lord Hain, made very clear, causing real damage and concern to the devolved Administrations and to the nations. I am aware that many Members of your Lordships’ House regard themselves as unionists. If noble Lords want to keep the union together—that is not my position—the Government should think very hard about what they are doing with the Bill.

Photo of Baroness Randerson Baroness Randerson Liberal Democrat Lords Spokesperson (Transport) 9:30, 17 April 2024

My Lords, I rise to speak specifically to Amendment 20A, to which I have added my name. I did so because the Bill is yet another intrusion on devolution. It is part of a pattern by which Bill after Bill in this House, Act after Act produced by this Government, raids the powers of devolved Governments and the devolved Assemblies. The Internal Market Act started that, along with the Procurement Act—and there are others. It is a complete pattern by this Government; an intention to reduce devolution in stature and in practice.

As a Wales Office Minister between 2012 and 2015, I recall that it was unthinkable that we, as a UK Government, would ignore the need for an LCM on something like this. We have now got to the point where it is routine for this Government to do that. In addition, in the case of this Bill, the unpredictability of Henry VIII powers will give the opportunity to the Secretary of State to make regulations that could have additional, profound implications for both Wales and Scotland, and throughout the UK.

The Government seem to forget the history of devolution. In 1999, when devolution was established, the Scottish Parliament had a much more comprehensive settlement than that provided for Wales. That proved to be a mistake. It was not just that Wales had fewer powers. The lack of a proper pattern to those powers and a comprehensive picture of them made it very difficult to make devolution work. I am conscious that I have signed an amendment led by the noble Lord, Lord Hain, and that I am criticising the Government of whom he was a part. I am sure he would agree that Labour First Ministers led campaigns to increase the powers of the Welsh Assembly, now the Welsh Senedd, specifically because it just did not work with much more limited powers. We now have something much more workmanlike, effective and constitutionally coherent. This Government have set about dismantling it again.

Added to that, the Bill is unnecessary. In the Senedd, the Minister made it clear that the Welsh Government are of the view that the UK Government have sufficient powers in place within the World Trade Organization Agreement on Government Procurement, enshrined in the Public Contracts Regulations 2015, and that those powers enable fair and equal treatment of overseas bidders where there is a relevant trade agreement. They do not believe that there is any need for additional powers. The UK Government already have the power to set sanctions for trade. All these arguments and discussions that we are having are irrelevant because those powers already exist. The Welsh Government fundamentally believe that the powers in this Bill would have a significant impact on the freedom of public bodies and democratic institutions in Wales. They have the majority support of Members of the Senedd on this. The impact would be on their freedom to decide not to purchase or procure in a way that impacts on their existing legal obligations in relation to human rights, abuse of workers’ rights and the environment. In practice, these powers are not going to fit comfortably with the structure of our legislation as it currently exists.

The fundamental reason why I signed this amendment on behalf of the Liberal Democrat Benches is that this is yet another impact on devolution and the coherence and effectiveness of the way in which the Governments of the United Kingdom should work together in a positive and effective manner.

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, I think that noble Lords who have spoken have misrepresented the devolution settlement. It is clear that foreign policy is a reserved matter. When we come to this Bill, the question of the political or moral disapproval of the conduct of foreign states is a matter of foreign policy that can be determined only by the UK Government.

Noble Lords have been trying to describe devolution as they would like it to exist but the plain fact is that foreign policy is a reserved matter, and that is what is driving this. I do not think that the other matters that the noble Baroness, Lady Randerson, just referred to prevent action by the devolved authorities because of the quite extensive exemptions, which align with the procurement legislation, that are set out in the Schedule. We are talking about political or moral disapproval of state conduct, very specifically, and that is a matter reserved to the UK Government.

We have to remember that the devolved Administrations have form here in relation to Israel. To take the Scottish Government, back in 2014, they issued a Scottish procurement policy note which, in effect, encouraged Scottish bodies to boycott operations in the Occupied Territories. That note, which is quite difficult to find on the internet nowadays, because it seems to have disappeared into a black hole of an archive, was reconfirmed by current Scottish Ministers only a couple of years ago, so it remains the Scottish Government’s policy, which they cannot effectively implement because of the reserved nature of foreign policy.

To take the Welsh Government, in 2020 they informed the Welsh Parliament that they intended to issue advice to all Welsh authorities

“that they may exclude from tendering any company that conducts business with occupied territories either directly or via third parties”.

It was only after intervention from an organisation called UK Lawyers for Israel that the Welsh Government deferred their decision. So we have the Scottish Government and the Welsh Labour Government itching to boycott Israel, and to use that as a reason—

Photo of Lord Hain Lord Hain Labour

The noble Baroness accurately quoted the Welsh Government’s position as referring to occupied territories which are illegally occupied, including those determined by the British Government, not as boycotting Israel.

Photo of Baroness Noakes Baroness Noakes Conservative

Whether that is relevant is another matter, because the boycotting of the Occupied Territories would also cause a problem under this Bill if Wales and Scotland were allowed to, in effect, opt out of the Bill.

Photo of Baroness Noakes Baroness Noakes Conservative

The noble Lord has the advantage of me, because the straight answer to that is no. However, if he points me to it, I shall certainly read it before we consider that again. I believe that trying to boycott the Occupied Territories is the same as trying to boycott Israel. Certainly, the intent is the same, and they are covered by the Foreign Office.

Photo of Lord Collins of Highbury Lord Collins of Highbury Opposition Whip (Lords), Shadow Spokesperson (Equalities and Women's Issues), Shadow Spokesperson (Foreign and Commonwealth Affairs and International Development), Shadow Deputy Leader of the House of Lords

I am sorry to labour the point. The noble Baroness keeps using the word “boycott”. We are also talking about decisions on procurement and investment, and there is advice from the FCDO about investing in occupied territories.

Photo of Baroness Noakes Baroness Noakes Conservative

I was referring largely to procurement because those were the decisions that were made by the two devolved Administrations that I cited. I would be very surprised if the FCDO had advice that boycotting procurement decisions relating to the Occupied Territories was something that it approved of, and therefore it was something that it thought the devolved Administrations could do. However, in any event, that is for the Foreign Office, not the devolved Administrations, to determine. I do not think we can get away from the fact that the current devolution settlements give foreign policy autonomy to the UK Government.

Photo of Lord Warner Lord Warner Crossbench

My Lords, I have listened to this debate with some astonishment. I will not raise the issue of the ECHR; we will come to that when we get to my Amendment 48. However, to keep chanting the view that it is for the national Government to make foreign policy seems to be ducking out of a fundamental democratic issue.

I want to end by posing a particular question to the Minister. Throughout my life, from time to time, there has been outrage among the public about a Government’s foreign policy in relation to particular countries; there is nothing new or startling about that. On many occasions that has been because people took the view that a particular Government of a particular country was behaving in a morally reprehensible way. Let us remember the marches against the Iraq war and let us also remember that many local authorities took sides on that issue. I did not see many Ministers jumping up in the Government to say “How dare you do this, because this is actually foreign policy, which is a matter for the Government. Why don’t you get back into your boxes and shut up and behave yourselves?” You cannot stop the public taking a view on the behaviour of a foreign Government in a particular set of circumstances. Israel is no different from any other country; it will make mistakes from time to time, however brilliant the Israelis may or not be.

Here we have a situation where we have given three areas of the United Kingdom and Northern Ireland the power to make many of their own decisions, including what they purchase to meet the needs of their communities. Are we really saying that we will stop them doing that? It was not that long ago that we gave them these powers; are we really saying that we will stop them doing what Parliament gave them the power to do, which is, so far as I can see, what this Bill will do? We will come back to Clause 4 later under my amendment, but it is very difficult not to see Clause 4 —as the noble Baroness said—as a gagging clause in the Bill to stop debate.

So I say to the Government—this is where I come to my question—“You can get yourself into a tangle because now, if you concede to these amendments, it will be very difficult for you, because if you concede to them and then do nothing for England, you will put English authorities in an inferior position to the authorities in Scotland, Wales and Northern Ireland”. So the Government will get themselves into a tangle, if they concede to these well-argued amendments, over what they would do about England. I cannot see local government in England being terribly thrilled if the Government have given way to these three, rightly, devolved Administrations. What will they say to the local authorities in England about why they are put in an inferior position to local authorities in Scotland, Wales and Northern Ireland? That is where you would end up. So my question to the Minister—

Photo of Lord Hain Lord Hain Labour 9:45, 17 April 2024

I am very grateful. I agree with everything he has said. On his point about central government not always being correct, that would have been the case in the 1930s when a Conservative Government were appeasing Hitler and there was massive pressure from outside, from people in all walks of life who took a different view, that eventually forced a change of policy and Churchill took over with a different policy—thank goodness.

Photo of Lord Warner Lord Warner Crossbench

Absolutely—I thoroughly agree with the noble Lord, and this comes to my question as to whether the Government have thought this through. I do not know what the penalties will be for breaches of this law, but I can foresee that, on some issues, people will feel so strongly that they will be prepared to pay—you might say it is the cost of trade—the penalties so that they can demonstrate to the Government what they feel about a particular action in a particular country by a particular Government. Have the Minister and the Government thought through what happens if there is a willingness among groups of people to take a stand against this Bill, accepting that they may get some financial penalties and being prepared to pay those penalties because they feel so strongly about a particular issue?

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat Lords Spokesperson (Cabinet Office)

My Lords, I will try to be brief at this late hour. I spent my entire career studying and writing about foreign policy. The noble Lord, Lord Moylan, was kind enough when he made his speech some months ago to say that, when he joined the Foreign Office, he was told, “You’ve got to read William Wallace’s The Foreign Policy Process in Britain”, before he started work—so I know a little about it.

I emphasise there has always been, and remains, a difference between the approach to foreign policy in the security sense and defence sense—in which it is quite clear one has to have command, central control and therefore real concern about sovereignty—and to trade policy, international investment and procurement, which are usually controlled by a different department, often in competition with the Foreign Office, and in which subordinate entities of government, in most states, also have degrees of latitude. The German Länder pursue different international investment policies. I remarked earlier that the British Government are negotiating trade deals with Washington state, Texas and others within the United States. The idea that all foreign policy in the broadest sense, from immigration through to defence, has to be undertaken by central government is an extreme sovereigntist and unionist case, which I think should not hold.

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Shadow Spokesperson (Treasury)

My Lords, I will be very brief. I do not want to repeat some of the excellent points made, but I do have an amendment in this group about requiring a legislative consent Motion. For us, this is primarily an issue of respect. It saddens us: from the internal market Act, relationships between the UK Government and the devolved Governments started to go really badly wrong. It seems to happen again and again. I remember a couple of weeks ago, in this Chamber, the noble Lord, Lord Moylan, referred to the Welsh Government’s desire to work to support the Welsh language as a fascist attitude. That has played on my mind ever since. Things have really deteriorated to such an extent that, in the personal relationships between politicians in the UK Government and the devolved Governments, which politicians used to take pride in putting some effort and work into, nobody seems to even try anymore. Bills such as this one come along where the Government do not seem to care whether it has any legislative consent and do not even try to persuade their colleagues in the devolved Administrations to see the benefits of a particular piece of legislation. That is very sad. I regret that deeply, and the Government really ought to do better.

This is primarily about freedom of expression for people who have been elected in their own right to represent their communities. It is wrong that Clause 4 prohibits statements. We will come on to that later, but they are to be gagged by the Bill, and that is to be regretted. It is a backwards step. We will debate that another day. I hope that noble Lords will understand just how offensive the restrictions in that clause are to elected Governments in Scotland, Wales and Northern Ireland.

As others have said, the Bill is disproportionate and unnecessary. The Minister and I have had exchanges about things raised by the noble Lord, Lord Foulkes, about the Scottish Government having offices in other nations, and he says that this is wrong because foreign policy is the UK Government’s domain, He is right about that—he does not speak for the Labour Party on these issues and is not right in the complete sense on the points that he makes on this. The Government agree and say that this is a terrible problem, that it is confusing for our partners overseas and that something should be done, but they are doing nothing about it. Instead, they feel that this is causing confusion in foreign policy. I just do not believe it. I do not believe that any other Government anywhere in the world is confused about our foreign policy because of some statement that the noble Baroness, Lady Noakes, says has been put in a drawer somewhere in Edinburgh, was passed 10 years ago, and is somehow causing such diplomatic confusion. I do not see any evidence of that whatsoever.

It is sad that the Government no longer even try to pretend that they want to work in partnership with devolved Governments. We can do so much better. The UK Government already have sanctions powers, and they are now seeking unnecessarily to fetter and gag devolved Governments. This shows a terrible lack of respect and I regret it very much.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

My Lords, the amendments put forward by the noble Baronesses, Lady Bryan of Partick and Lady Chapman of Darlington, and the noble Lord, Lord Hain, seek to remove Wales, Scotland and Northern Ireland from the territorial application of this Bill. I am sorry that the noble Baroness, Lady Ritchie, and the noble and learned Lord, Lord Thomas, are not here tonight, as they usually are in these discussions.

I disagree with these amendments for two reasons. First, the intention of this Bill is to ensure that the UK speaks with one voice internationally. It will safeguard the integrity and singularity of the UK’s established foreign policy, which is set exclusively for the whole of the United Kingdom by the UK Government. My noble friend Lady Noakes explained that well—political and moral disapproval is the issue here—and she gave a Scottish example. The noble Lord, Lord Wallace, takes a different view.

I see it this way: international relations and foreign policy are reserved matters and remain the responsibility of the UK Government and the UK Parliament. Removing Scotland, Wales and Northern Ireland would be out of line with the devolution settlement and undermine one of the main aims of the Bill—one UK foreign policy decided by the UK Government. I appreciate the view of the noble Lord, Lord Hain, that decisions should be made as close to local level as possible. However, I do not believe that this would be appropriate for international relations, which is rightly reserved for the UK Government. The UK cannot effectively conduct a single foreign policy if each devolved Administration or indeed local authorities, as I think we were talking about, are conducting a separate policy.

The second reason I oppose these amendments is that the BDS campaigns, which risk undermining community cohesion, are a UK-wide problem. I will illustrate this briefly with some examples. In Wales, a 2014 motion passed by Gwynedd Council called for a trade embargo with Israel. In 2020, as the noble Baroness, Lady Noakes, pointed out, the Welsh Government informed the Welsh Parliament that they intended to issue advice to all Welsh public authorities that they may exclude from tendering any company that conducts business with the Occupied Territories, whether directly or via third parties. Only after intervention from UK Lawyers for Israel did the Welsh Government defer this decision.

In Scotland, in January 2009, West Dunbartonshire Council passed a motion agreeing to boycott all Israeli goods. That motion was reaffirmed in June 2010 and May 2011. In December 2010, Stirling Council passed a motion resolving to

“reassess its current procurement arrangements and ensure future agreements and contracts boycott all Israeli goods”.

In March 2013, Clackmannanshire Council passed a motion to

“resist, insofar as legislative considerations permit, any action that gives political or economic support to the State of Israel”.

In Northern Ireland in 2016, Derry and Strabane Council voted in favour of BDS. A motion was passed to investigate the most practical means of implementing the BDS campaign in the council. Finally, in Belfast in 2019, councillors attempted to bring forward a resolution to support BDS.

For these reasons—the need for a single UK foreign policy and the record of boycott campaigns across the UK—it is vital that the Bill’s provisions extend to each of the jurisdictions of the UK. This includes all public authorities, as defined in Section 6 of the Human Rights Act 1998. This includes Ministers in the Devolved Administrations. This may alter their executive competence, so the legislative consent process has been engaged, as the noble Baroness, Lady Chapman, explained. We have therefore sought legislative consent from the devolved legislatures to apply the bans in Clauses 1 and 4 to Ministers in Scotland, Wales and Northern Ireland.

International relations and foreign policy are reserved matters and remain the responsibility of the UK Government and the UK Parliament. The Bill legislates in this area.

The noble Baroness, Lady Bryan of Partick, emphasised that the devolved Administrations are required to act within the European Convention on Human Rights. The Bill will not compel public authorities to make a decision that would put them in breach of the convention, and it will not interfere with the rights of any public authority. One of the reasons why we chose the public authorities definition is that these bodies do not have convention rights, so the Bill is compliant with the convention, including the Article 10 right to freedom of expression.

In response to the noble Baroness, Lady Randerson, I would like to reassure her that the powers in the Bill can be used only to narrow the scope of the ban, as it would be set in primary legislation. They cannot be used to place broader obligations on the devolved Administrations than what was agreed by Parliament.

Photo of Lord Warner Lord Warner Crossbench 10:00, 17 April 2024

I am sorry to interrupt the Minister, but I am still trying to puzzle out what happens, to take the example of Scotland, if there is a great deal of resentment about this legislation, particularly Clause 4. What happens if the Scottish Parliament, presumably protected by privilege, decides to have a debate, there are a number of decision-makers under Clause 1 in that debate, and they voice their view in a way that is totally different from the Government’s view on that particular country and the issue they are debating? Would the UK Government then wind itself up to fine them? I am not quite sure what the fine levels will be. What if the Scottish Parliament then has another debate and decides not to pay the fine? This does not seem a fanciful position, given that the Government seem to be going out of their way to annoy the devolved Administrations. What will the Government actually then do, in practice?

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

If I may, I will come back to that at the end of the speech, because I want first to try to explain what we are doing with the devolved Administrations. The noble Baroness, Lady Randerson, said that the WTO already places non-discrimination requirements on public authorities. Although this is the case, these obligations do not cover all countries and territories and apply only to procurement decisions, not investment decisions.

To return to the subject of legislative consent, I think it is fair to say that we are disappointed that the Senedd and the Scottish Parliament have refused to give their consent to apply the ban to their Ministers and the respective departments and agencies. It is always the Government’s intention to legislate with the support of the devolved Administrations and, where relevant, the consent of the devolved legislatures. We will therefore continue to ensure that the interests of the devolved Administrations, including the devolved assemblies, are fully taken into account. Contrary to the noble Baroness’s suggestion, we do engage with the devolved Governments. I was in Northern Ireland last week, I visited the Welsh Government relatively recently, and my office has contacted the offices of the relevant Ministers in the Scottish and Welsh Governments. I hope to meet with them in the coming weeks to discuss further how we can gain their support for the Bill.

Photo of Lord Hain Lord Hain Labour

I will be brief, given the hour. What advice would the Minister give to Welsh local authorities if they refuse to procure or encourage any local companies to do business with Xinjiang province in China because of its oppression of the Uighur Muslims? China, unlike Russia and Belarus, is not listed in the Bill in that way.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

I am not quite sure what will happen about Xinjiang; that is a foreign affairs question. Obviously, although it is not referred to in the Bill, we have made it clear that we will use the Bill, where appropriate, to exempt areas. We have already said we will use the powers in relation to Russia and Belarus. I am going to talk to the Welsh Government, and I am sure this is a question that will come up. As I said, I hope to meet them in the coming weeks to discuss further how we can gain support for the Bill and what would be the right approach.

In Northern Ireland we have been formally seeking consent from the Northern Ireland Assembly since the restoration of power sharing and will continue to do so. The noble Baroness, Lady Bryan, asked for reassurances that we have engaged with the Northern Ireland Executive. Officials have discussed the Bill’s provisions with officials in Northern Ireland and have been actively pursuing engagement with the Northern Ireland Executive now that power sharing has been restored. I hope to be able to meet Ministers in the Executive to seek their consent for the Bill soon.

In response to the concerns expressed by the noble Lord, Lord Warner, about what would happen if a public authority does not pay a penalty, we would advise public authorities to reconsider before refusing to pay a fine as the enforcement process, which I think we will come on to discuss on subsequent days, makes it clear that it could end up being enforced by the respective court system of the devolved area. The enforcement authority can apply to the court for the enforcement of an information notice. A failure to pay a fine is a civil debt, to answer the point that was made in an earlier group by the noble Lord, Lord Collins, under Clause 10(3). This will be through the courts in the relevant devolved jurisdiction, so if a Scottish council was subject to an information notice or issued with a fine, that would be enforced by the Scottish courts.

I am conscious it is late. We have had a lively conversation on this subject. I hope that for the reasons I have set out the noble Baroness will be willing to withdraw her amendment.

Photo of Baroness Bryan of Partick Baroness Bryan of Partick Labour

I thank the Minister for her response and everybody who has participated in this discussion. The Minister and the noble Baroness, Lady Noakes, believe that there should be one voice in all international policy, but procurement is a devolved issue and, as we have heard, Clauses 1 to 4 require legislative consent. The worry is they require it, so they can ignore it, but I hope not.

The noble Lord, Lord Hain, put his finger on the issue of subsidiarity versus centralisation. Are we going to have one centralised procurement body for the whole of the UK that will choose which procurement is in line with the Government of the day’s international policy? I do not think anybody wants to go down that route. There is strong concern about the backpedalling, as it was described, and the resentment that this will cause. Remember that 50%-plus of voters support independence in Scotland. They might not be ready to vote for it at this time, but give them a push further along, and we might find that that happens. More Welsh voters are coming to support independence, and Northern Ireland is being held together by constant vigilance. I hope that the concerns raised here are taken seriously and that the Government engage properly with the devolved Administrations, discuss their trade plans with them and do not treat them as a minor inconvenience that gets in the way of the big issues of government. I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Amendment 17 not moved.

House resumed.

House adjourned at 10.09 pm.