Richard Hermer KC gave evidence.

Q We will now hear oral evidence from Richard Hermer KC from Matrix Chambers. We have until 12.45 pm for this session. Could the witness introduce himself for the record please?

Richard Hermer:

Good afternoon, Sir George, and members of the Committee. My name is Richard Hermer. I am a barrister, as you have said, at Matrix Chambers. My areas of expertise most relevant to this Committee are in public law and international law, including international humanitarian law. I advise and represent a wide range of individuals, companies and, indeed, Governments, and I lecture on those topics both here and abroad.

Q In your advice, you argue that the Bill places unprecedented restrictions on public authorities, but would you not agree that there are already substantial restrictions on public authorities, for example, to ensure good value for money or to comply with the UK’s obligations under the Government procurement agreement?

Richard Hermer:

Good afternoon, Minister. Of course, law imposes on all decision makers—be it local authorities or public bodies—a range of restrictions through law on their decisions, whether it is a purchasing decision or any other type of decision. That is what the legal framework does. I have identified in the two written opinions why aspects of this Bill are unprecedented in respect of its impact on human rights and international law. I agree with you as a matter of generality, but I disagree with you, Minister, as to this particular Bill.

I am not going to bring the Minister back in. We have only 15 minutes for this session.

Q In the advice you gave the Labour party, you said the Bill

“effectively equates the OPT with Israel itself and is very difficult to reconcile” with Britain’s support for a two-state solution. Will you expand on those comments?

Richard Hermer:

Yes, of course. The manner in which the Bill does that is it affords a unique protection to just one category, which is Israel, the occupied territories and the Golan Heights—one protection from being placed on the list of exceptions—whereas any other country in the world can be placed on the list of exceptions and therefore subject to adverse economic decisions by public bodies through the fiat of the Secretary of State or the Cabinet Minister. That power is denied to the Secretary of State or Minister in respect of anything to do with Israel, the occupied territories or the Golan Heights. It is accorded a special status, and that can only be changed by primary legislation. In that sense, it separates out Israel and the OPT from the rest of the world.

Q Following on from that very point, your two papers make the point very strongly that the Bill contradicts, or at least strongly questions, the British commitment to international law. Could you expand slightly on that because, as we all know, the British Government are firmly committed to international law? Are you suggesting that this questions at least the Government’s commitment to international law?

Richard Hermer:

Yes. I am mindful that we have only 15 minutes, probably now 10. Can I just give you a brief framework, because I think I have to disagree with the outline that Mr Barrett gave you? International law has always been key to this country, and very broadly speaking it operates on two levels. The first is on the international plane. That is our obligation to comply with international law at the international level. Secondly, in so far as it has been incorporated into English domestic law, the Government have to comply with it on a domestic level.

It is the international law level that I flagged up first in my written advice. As a country, we have always played a leading role in upholding and, indeed, creating international law. Both main parties have a proud history of that. It has fallen into slight disrepute in more recent times as we have had some legislation that expressly seeks to avoid our international law obligations, but generally speaking, that is something we can be proud of. There are two aspects in which that is relevant: first, because the Government have contended that this does comply with our international law obligations, and secondly, because the Committee will no doubt wish to ascertain whether it in fact does or there is a risk that it does not. I hope that answers your question, Mr David.

We heard from a witness in the session the other day about comparisons. His position was that the Bill is relatively somewhere in the middle compared with somewhere like France or some of the states in the US. Given your experience, what is your thought on how this fits into the international comparisons?Q

Richard Hermer:

There are some examples of American states passing what I would describe as more extreme versions of this. France is interesting because the Strasbourg court has looked at France on two occasions and the most recent one upheld that its Laws were incompatible with article 10. There is not much else out there by way of example. Israel has its own laws on BDS. I am not sure where that takes us. Ultimately, Parliament has to look at this Bill on its face. How it stands up in comparison does not tell us anything about international law—it might help with the context, but beyond that, I am not sure that it would necessarily help the Committee.

Thank you for joining us today. Clause 4 has been referred to as a gagging clause by some. Why can it be seen as so problematic?Q

Richard Hermer:

I am firmly of the view that it is incompatible with article 10 of the European convention on human rights, which is incorporated into our law via the Human Rights Act. I have listened carefully to the views of others, not least the way that it has been explained by the Minister, and I respectfully disagree.

There are two elements to this. First, who does it bind? There is no dispute that it does not bind a public authority per se, but it would undoubtedly bind a leader of a council or a vice-Chancellor of a university—that is, the full array of public authorities or bodies acting as a quasi-public authority. Certainly, it is incapable of engaging the free speech of those individuals. Secondly, there is an analogue to the free speech of the individual in article 10, which is also the right of the public to have information. This engages article 10 in both those ways.

Once we have engagement of article 10, it then falls to the Government to justify it under article 10(2) I have set out in my first opinion the text of article 10(2). There are a number of hurdles that a Government would have to pass. We should also remember that this is not just in the context of BDS; this is in the context of any country and any conflict. I set that out in paragraph 34 of the opinion that the Labour party published. In order to establish that there was no breach of article 10, it would need to be shown that the restrictions were necessary

“in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

It is almost impossible to see how there could be a justification here. As matters stand, this would be deemed incompatible with the Human Rights Act.

Thank you. This will be the last question.

Given that the BDS movementQ targets almost exclusively Israel, do you think it is appropriate that we require primary legislation for Israel?

Richard Hermer:

No, I do not. In the human rights movement, there are lots of campaigns that focus on one particular country. For example—and I do not wish to be trite—if you look at the Rohingya, we are targeting Myanmar. If you look at what is going on in Yemen, most of the campaigning is around Saudi Arabia. You can pick examples from all around the world.

Undoubtedly, the BDS movement, as it is known, focuses on Israel. But often human rights campaigns focus on individual counties, because it is often individual countries that are committing human rights abuses. From a legal and human rights perspective, I do not feel that there is a need for additional protected status—all the more so, if I may say, in respect of the occupied territories and the distinction that is drawn there. I find that, on all sorts of levels, very hard to understand.

Thank you. We have a few minutes left if anybody has a further question.

Q Apart from the objections you have clearly set out in writing and orally, you make a number of comments about the poor drafting of the Bill. Could you give us a few examples of poor drafting that will lead to all sorts of unintended consequences and complications?

Richard Hermer:

I think I set out quite a few in writing. First, Clause 1 could be taken to mean something entirely different to that which I think the Government intended—to just focus on particular territorial disputes rather than, more generally, the human rights record of a company.

I am afraid that, again, I disagree with Mr Barrett about the dangers of the “reasonable observer”. In some areas of the law that is a common phrase. But here, if the Bill proceeds, it is a pretty binary question: have you offended the Act and taken into account considerations that you should not, or haven’t you? I do not understand what the test of reasonable observer adds beyond uncertainty and, potentially, injustice. On that analysis, you can have no intention to break the law, but a reasonable observer may nevertheless consider that you did. The vagueness there is potentially very troubling. There are also the other examples I have put out in writing.

Obviously, a great deal of oxygen has been taken up on BDS, and one can understand why that is. But I would stress—as I hope I have done in writing on two occasions—that the impact of the Bill extends across the whole panorama of human rights and this country’s engagement with human rights, not just one particular incident. It engages not simply what local authorities can do, but the full range of public bodies in this country.

Thank you for the brevity of your responses, which enabled us to get a lot more questions in than I had anticipated in such a short session. It has been very helpful. Thank you very much.