Jonathan Turner and Steven Barrett gave evidence.

I apologise to the witnesses and members of the public who are attending today, for allowing them in before unfortunately having to ask them to withdraw while we sat in private. There was an issue that the Committee wanted briefly to discuss before we went into the formal, public part of the proceedings.

We will first hear evidence from Jonathan Turner, the chief executive of UK Lawyers for Israel, and Steven Barrett, a barrister at Radcliffe Chambers. I remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick rigidly to the timings in the programme motion that the Committee has already agreed. For this panel we have until midday. Could the two witnesses briefly introduce themselves for the record?

Jonathan Turner:

I am Jonathan Turner, chief executive of the organisation UK Lawyers for Israel and a barrister.

Steven Barrett:

I am Steven Barrett. I am a barrister; I write sometimes in the press on law, and I occasionally appear in the media on law.

Thank you very much.

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.

You are clearly a very busy man.

Richard Hermer:

That is very kind of you.

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.

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.

Given the constraints on time, I will bring in other members of the Committee. If there is time at the end, I will bring the Minister back in.

I just have a quick segue from that.

A very quick one, then.

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.

On a point of order, Sir George.

I hope it is a point of order.

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.

It is an interesting point, but it is not a point of order for the Chair. It is in the hands of the witnesses themselves to give their evidence in the way that they think most appropriate, and if that involves commenting on evidence that we have already heard, it is certainly acceptable for them to do so. You might not like it—

No, and I don’t think many people will.

But it is the system. I am going to move swiftly on now. A number of Members have indicated that they want to take part. I call Alex Norris.

The key test in Clause 1 for the action of a decision maker is whether itQ

“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.

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.

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?Q

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”.

Mr Barrett, is there anything you want to add?

Steven Barrett:

No, because I cannot answer the necessary question because I think that would be a personal and political opinion. I can say that it is lawful and that I agree that it would not breach article 10.

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.Q

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.

We are running rapidly out of time, but there is an opportunity for one very quick question.

You said that you had some concerns about the drafting of the Bill. Can you explain them, please?Q

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.

On behalf of the Committee, may I thank the witnesses? I am sure it has been quite a probing experience for you, but even if individuals might not agree with the advice that you have given, I think they respect the fact that it was given in good faith and comes from a base of knowledge that is very helpful.