Stephen Cragg KC gave evidence.

We will now hear from Stephen Cragg KC. We have until 3 pm for this session. Would the witness introduce himself?

Stephen Cragg:

I am Stephen Cragg KC. I am a barrister at Doughty Street Chambers specialising in public and human rights law.

Q The Government’s assessment is that the Bill does not breach anyone’s rights under article 10 of the ECHR. The ban applies only to the public functions of bodies defined as public authorities, so it would not affect individuals or private companies. It would not affect a councillor acting in an individual capacity—only a councillor who was speaking on behalf of his council as a local authority. Given this, do you agree with that assessment, and that the Bill is compatible with the ECHR?

Stephen Cragg:

First of all, it is unclear whether that is the case or not.

That is something which needs to be clarified—if that is the intention, it should be spelt out. The concern is that the right to freedom of speech of councillors speaking about matters in council chambers, for example, might be affected—that is unclear from the Bill at the moment. In article 10, the right to freedom of speech also involves the right of the public to receive information. It is interesting that local councillors, for example, might feel restrictions on saying things in debates in council chambers because they are afraid of falling foul of some of the provisions in this Bill. Michael Gove said in a statement that it does not apply to individuals—on the face of it, I can see that argument, but I think it is very unclear and needs to be clarified if that is the intention.

Q Thank you. The Bill provides powers for enforcement authorities to issue compliance notices and investigate and fine public bodies where there is a breach of the ban. These powers are based on existing powers for regulators of public bodies. Do you think the powers given to enforcement authorities are reasonable and proportionate?

Stephen Cragg:

I recognise that these are the kinds of powers regulatory authorities often have. There is concern about the fact that there are also judicial and quasi-judicial review remedies in the measure and about the effects of the regulatory provisions, which involve possibly preventing someone from making a statement in advance. There is also concern about the information notices provision in Clause 7. I was in the room when the question about legal professional privilege was asked. I cannot see anything in clause 7(8) which provides any protection for legal professional privilege. It was also said that it gives people the power to provide that information, but that is not right either because clause 7 is all about complying with a notice—people do not have any discretion as to whether they disclose the information or not. There are concerns about the provisions in clauses 6 to 10.

I also note that there is no clue at all about the kind of monetary penalty that might be imposed as well—whether it will be something like the Information Commissioner has, which can go to hundreds of thousands of pounds, if it will be £100 or if it will be a rap on the knuckles and being told, “Don’t do it again.” All that needs to be clarified, and it is not clear at the moment.

Q On the legally privileged point, the Government’s view is that the information power does not extend to legally privileged information, on the back of the fact that that is a fundamental common law right and would need specific words to override.

Stephen Cragg:

In my view, those specific words are there in Clause 7(8):

“A person providing information in compliance with an information notice does not breach any obligation of confidence owed by the person in respect of the information, or any other restriction on the disclosure of information (however imposed).”

I do not see how you can get much clearer than that.

Q Just to summarise, you would want clarification on that point and on councillors acting in their own capacity.

Stephen Cragg:

If that is the intention—that legal professional privilege is excluded—it needs to say that.

Thank you, Minister.

Thank you for joining us this afternoon, Stephen. Can you clarify how the Bill will impact the UK’s long-standing position on illegal settlements? Will the Bill stop public bodies from adopting a stance of not buying and trading goods from illegal settlements, bearing in mind that those settlements are illegal under international lawQ ?

Stephen Cragg:

I think the position is that advisory opinions are provided by international courts that say that providing support for settlements etc is something that should not be done. One of the concerns is that this is something that might get fought out in the courts under the Bill—councils thinking that they can take things into account that mean that they are not breaching the UK’s international human rights and law obligations but being unsure about that and seeking clarification from the courts, and individuals and bodies thinking that there will not be a breach of the UK’s international law obligations fighting that case or raising their points of view in the courts and the courts having to resolve those issues. One can see that that is something that might happen quite quickly.

Q Is that a concern that you have? Richard Hermer KC has raised concerns that UK courts would potentially have to rule on the legality of Israeli settlements in the Palestinian territories.

Stephen Cragg:

Yes, because there are competing views on that. If there are competing views, local authorities might want to seek a view from the courts on whether their view is correct. It is then all up for grabs in the High Court and beyond after that—something that the courts have tried to avoid getting embroiled in.

Q You mentioned the use of regulations for setting the fining regime. That is a common theme of this Bill. It also allows the Secretary of State to vary the schedule that sets out the important exceptions to the Bill and to vary enforcement authorities. That is a theme of the Bill. Do you think that those things and that degree of reserved power for the Secretary of State should be on the face of the Bill, or are they proportionate and necessary for the effectiveness of the Bill?

Stephen Cragg:

What the Bill does is give very wide powers to the Secretary of State to change lots of aspects of this—which countries are involved, which conditions and the like. The concern when you have secondary legislation powers is always, “All right, this Government might not use them in a way that you would not agree with, but Governments down the line may use the powers they have here to mould a system where countries that they agree with are excluded under the Bill, and countries and issues that they do not agree with are the ones that things will be focused on.” There is always a concern about that. In something as important as this, it seems to me that that should be on the face of the Bill; it would give me a lot more reassurance as a lawyer if it were on the face of the Bill.

Q Secondly, to finish the points you made in a fulsome way on Clause 7, for my own clarity. You are saying that you would have greater confidence in the provisions in clause 7 if it was on the face of the Bill that privileged information between clients and their legal representation was exempted from that information-gathering power?

Stephen Cragg:

Yes. I read out the terms of Clause 7(8) and it seems to say that there is no restriction on the information which can be requested, as far as I can see. If that is not the Government’s intention, it is simple to put that right.

Thank you very much. If there are no further questions from Members, I thank the witness and we will move on to the next panel.