Yasmine Ahmed, Dave Timms and Peter Frankental gave evidence.

Q We will now hear evidence from Yasmine Ahmed, the UK director of Human Rights Watch, David Timms, the head of political affairs at Friends of the Earth, and Peter Frankental, programme director for economic affairs at Amnesty International UK. We have until 12.30 pm to conclude the session. For the record, could the three witnesses briefly introduce themselves?

Yasmine Ahmed:

I am Yasmine Ahmed, the UK director for Human Rights Watch.

Dave Timms:

I am Dave Timms. I am the head of political affairs at Friends of the Earth England, Wales and Northern Ireland.

Peter Frankental:

I am Peter Frankental, economic affairs programme director at Amnesty International UK.

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.

To the other two witnesses, it might be helpful in terms of our time constraint if you could initially confirm whether you are happy with the evidence already given, and if not, please say so. Secondly, could you raise any additional points that you do not think have come out in the first response? I hope that is clear.

Dave Timms:

I agree entirely with Yasmine’s comments. Hopefully we will get to talk specifically about the environmental implications, but I would add to her answer the pernicious way Clause 1 is constructed and the impact that will have on civil society organisations going about their reasonable activities to try to create environmental or social change. We have heard a lot of the witnesses say that it does not have gagging implications or free speech implications, but the actions of civil society organisations and members of those decision makers are drawn in by the nature of clause 1 and subsection (7), which talks about “any person seeking to persuade the decision-maker”.

This is the state impinging on the activities of civil society organisations that are trying to achieve meaningful social change and trying to ensure that their money, their local authority or university is not complicit in driving destructive human rights or environmental activity. In that sense, this is a direct attack on the ability of civil society to go about the activities we would consider to be legitimate.

Peter Frankental:

I totally agree with Yasmine and David. Public procurement in the UK, according to the OECD, accounts for 14% of GDP. That is enormous potential leverage to incentivise ethical business. That leverage is largely being lost because of the disincentives that Yasmine referred to. Let me give you one example of why the disincentive is so great. If a public body—say, an NHS trust—were to decide not to tender with a company in Malaysia, or a contractor in the UK that sources from Malaysia, and source rubber gloves from a factory that had been linked to human rights abuses, that would implicate the state of Malaysia. Under international law, states have a duty to protect, and that means holding companies accountable. If a company is involved in human rights violations or labour rights violations, the state has to some extent failed in its duty to protect, so disapproval of foreign state conduct is invoked. I do not think that the public bodies will want to go anywhere near giving effect to their human rights due diligence findings, because the risk and cost to them would be too great.

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.

Minister, do you have a quick follow-up?

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.

It is an agree/disagree question.

Dave Timms:

I am afraid that I completely disagree with the assertion that there is any protection whatsoever for fossil-fuel divestment campaigns. We are extremely concerned about the chilling effect that the Bill could have on those. You have said that fossil fuels are not specifically mentioned, but I am afraid that the Minister does not have the ability to say what is excluded because of the construction of the first Clause, which mentions

“a reasonable observer of the decision-making process”.

In fact, the Department’s own delegated powers memorandum, in terms of contracting with suppliers, talks about being “affiliated with certain countries” and divestments from “organisations” that are affiliated “with certain countries.” So if we are talking about divestment of fossil fuels from, say, Saudi Aramco, Equinor, Petrobras, Gazprom or other companies that are highly associated with a foreign Government, we think that will be brought very quickly into the remit of the legislation.

Also, as I said before, because it bites on the way people go about campaigning, and all the statements made during that, you will often see arguments for fossil fuel divestments being couched in terms of getting off fossil fuels because of the damage of climate change, but also because of the record of particular regimes. Those decisions could very quickly be blocked by this legislation. So I see no reassurance whatsoever that it would not have a significant impact on fossil-fuel divestment.

Nor do we take any reassurance at all from the exemption around environmental misconduct. It applies only to illegal environmental harm, yet so much environmentally destructive activity is conducted lawfully. We can look at something like the due diligence discussions that happened during the Environment Act, where the limitations on reporting on illegal deforestation were revealed because so much of the deforestation due to soy in somewhere like Brazil happens entirely lawfully. Or you can take something like Indonesian palm oil, where the legal status of land is extremely complicated and it becomes almost impossible to determine what land conversion has happened legally or illegally. How can a local authority or a public body possibly be expected to navigate that kind of complexity? What they will do is say that this legislation blocks them. So I am afraid that I do not accept your point.

To use the same approach I advocated for the previous question, if the two other witnesses want to concur with or dissent from the response that Mr Timms gave, could they say so and perhaps raise any additional points that they think would be helpful to the Committee?

Yasmine Ahmed:

Yes, I wholly concur with what Dave said. I would just add that first, as Dave noted, it has to be illegal. Fossil fuels, not necessarily the extraction of fossil fuels, are not illegal—that has been well covered. What about a situation where there are dual considerations? We see many situations where deforestation happens, for example, and there are attacks on indigenous communities and human rights defenders. What happens then? Is that caught by the Bill or not? As I mentioned, there is a litany of other human rights abuses and international crimes that are not captured by the Bill, so the exemptions are certainly by no means exhaustive. The very point that I would argue is that the Bill cannot, because the whole point of the Bill is to stop public bodies being able to carry out their due diligence responsibilities effectively.

Peter Frankental:

I concur with Dave, but I want to add one point on the exemptions. The vast Majority of cases reported of companies abusing human rights are not litigated—they are not subject to civil or criminal litigation; they are exposed by the media or by non-governmental organisations—so the exemptions defined in terms of breaches of law are unlikely to apply and no public body would feel confident in using the exemptions unless there has been a legal case. In so many jurisdictions, the law either is not in place or there is corruption or weak regulatory systems. The independently commissioned report on modern slavery by Frank Field, Baroness Butler-Sloss and Maria Miller drew attention to the very weak regulatory systems in the UK for implementing the Modern Slavery Act, so any reliance on the law will put public bodies in a very weak position.

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.

Does anyone have anything to add to that? No? Okay. I will come next to Dr Luke Evans.

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.

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.

It is an answer to a separate question.

Q I am sorry, but you have had two questions. Very briefly, because we are running very short of time, I wonder if the other two witnesses want to add any brief point to that.

Peter Frankental:

I will just add that a decision by a public body not to procure with a tenderer should not necessarily be seen in terms of BDS. It is not necessarily a boycott; it is a means of effecting due diligence. If it is done in a way that is proportionate and on a case-by-case basis, as the vast Majority would be, I would not see a problem with it.

I will just add something from the Government’s impact assessment of the Bill. It is made absolutely clear in the impact assessment that there is no definitive evidence linking public procurement and investment to discrimination on grounds of race, religion or belief. That is set out in three paragraphs of the impact assessment—paragraphs 60, 61 and 64. So, the main premise behind this Bill, that it is necessary to prevent public bodies from engaging in antisemitism, is not compellingly evidenced, according to the Government’s impact assessment.

Only one procurement case is given, that of Leicester City Council, which took a decision not to procure with Israeli settlements. That was challenged in the courts on grounds of a breach of the public sector’s equality duty, and the Court of Appeal found that Leicester City Council had not breached its equality duty, was not being antisemitic and was mindful of community cohesion, and that its decision not to procure from settlements was based on a respected body of international opinion, including the UN, the EU and the UK’s own policy on not recognising the settlements as legal. It is perfectly possible for public bodies to take these decisions without that being seen within the sweeping form of BDS.

Thank you. Two more people have indicated that they want to ask questions. In order to save time, I will take the two questions and then perhaps the witnesses can determine between themselves who will answer them.

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?

I will bring in Brendan Clarke-Smith now for his question, and then you can share the answers between you.

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.

I do not know who wants to take on the two questions. I will leave it to you.

Peter Frankental:

Sorry, I could not hear the first question. Could you please repeat it?

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.

Mr Frankental, will you tackle that one?

Peter Frankental:

I will begin with the second question. Sorry, I did not completely hear the first question. On foreign policy, I do not believe that procurement decisions that are taken on the basis of due diligence engage foreign policy at all. That is a human rights or environmental due diligence matter.

Yasmine Ahmed:

To add to that, if you are talking about trying to give certainty to public authorities, what this Bill does is create complete uncertainty. The UK’s business risk guidance and the UNGPs say something completely contrary to what this Bill says in terms of being cautious, considering your human rights and environmental responsibilities, and doing adequate due diligence, and in terms of the UK Government’s position on the occupied territories and particular settlements within them. How we provide clarity to public bodies is a really important question. This Bill is certainly not the way to do it, because it provides much more uncertainty.

I am happy to attempt to answer the other question, if that is helpful. What the Bill means in relation to people in occupied territories is a really good question. I might expand on it slightly to say that from an international relations perspective, we should be thinking about a Bill that combines and excludes activities in Israel within the green line and the occupied territories. I am being very clear about what that says in relation to what the UK Government are saying about the Russian occupation in Ukraine, and the crimes that are being committed in that context.

It is a really important question because we should be thinking about community cohesion from both sides of the coin. What the Bill essentially says is that advocating for divestment from Israel, where Israel is committing crimes and a company is implicated in those crimes or human rights abuses, is wrong because it is linked to antisemitism. The other side of the coin—as you rightly say—is about what that does for Palestinian groups advocating for their rights, and the community cohesion between the two groups. A lot of the Jewish communities we have been engaging with have said, “We do not want our name associated with the Bill, because we are not saying that antisemitism is linked to the crimes and abuses that are being committed by Israel.”

It is very clear that there is a problem of antisemitism in this country; you just have to look at the statistics. However, the way the Government should be approaching the issue, if they were properly thinking about it, is through the equalities duty, education and speaking to communities. They should not be creating a law that is going to create many more problems, provide impunity, and undermine their business and human rights responsibilities and international obligations.

Thank you very much. I am afraid we have reached the end of this panel. I thank the three witnesses for the open and frank way in which they have addressed the questions raised by Committee members. We are grateful to them for being here today.

Yasmine Ahmed:

Thank you so much.

Dave Timms:

Thank you.

Peter Frankental:

Thank you.