A lamppost sticker promoting boycott, divestment and sanctions. Note that it demands “justice for Palestine” and makes no anti-Semitic statements.
Conservative government legislation will turn the UK into a criminal state in the international community – and it seems certain that it is being done so some Tories and their friends can make some money out of it.
Does that make you feel dirty – slimily, greasily, grubbily, maggots-in-your-food dirty?
The Bill that has caught public attention most vividly today is the innocently-titled Economic Activity of Public Bodies (Overseas Matters) Bill that specifically forbids public bodies like local councils from taking into account human rights abuses committed by foreign governments when making decisions, including on procurement of goods and services.
The Bill specifically forbids such public bodies from ever refusing to take goods and services from Israel, the Israeli-occupied Palestinian territories and/or the Israeli-occupied Golan Heights, no matter what atrocities are committed there.
Here’s an atrocity that was committed there yesterday (Monday, July 3, 2023). During an apparently-unprovoked attack on the Palestinian city of Jenin, which contains a refugee camp that crams 14,000 people into a space less than half a square kilometre in size, this happened:
The Economic Activity… Bill makes it illegal for public bodies to protest against atrocities like this in the only meaningful way available to them – by refusing to do business with firms from Israel or operating as Israeli firms in the occupied territories.
Legal opinion shows that the Bill is so badly-constructed that it will make the UK an internationally criminal state, with all the possible consequences this may create.
So why inflict it on a nation that doesn’t want it (we demand our right to oppose injustice wherever we see it, including in the actions of a rogue state like Israel) and will suffer for it internationally?
The only reason This Writer can find is that the trade it will generate will bring money to Conservative MPs or their friends – bosses of firms that will then donate money to them.
I wonder whether discussions to that effect have taken place between UK government or Conservative Party representatives and government or business people in Israel.
Let’s put some flesh on the bones of this argument.
Lisa Nandy, Labour’s Shadow Levelling-Up Secretary, together with Shadow Foreign Secretary David Lammy, commissioned legal advice on the Bill from one David Hermer KC. His response was lengthy but I will try to distil it into the essentials:
This very poorly drafted Bill is likely to have a detrimental impact on the United Kingdom’s ability to protect and promote human rights overseas, is in certain respects inconsistent with our obligations under international law, will stifle free speech at home (in a manner incompatible with Article 10 of the ECHR), will take powers long exercised by local authorities into the hands of the Secretary of State and will likely lead to an array of illogical outcomes.
Many of the key provisions of this very poorly drafted Bill are deeply troubling from both a domestic and international law perspective. The implications for local democracy, for the proud history in our regions of campaigning for global human rights, for using our economic clout for the promotion of human rights, for free speech in this country and for compliance with our international law obligations are potentially profound.
The driving force behind the Bill is to address the ‘Boycott, Divestment and Sanctions’ campaign (hereinafter ‘BDS’) directed against Israel. The Bill is objectionable irrespective of whether one considers BDS to be thoroughly reprehensible or conversely a legitimate form of non-violent protest.
Irrespective of whether this Bill is enacted, all public bodies are already prohibited in law from pursuing policies, or taking any actions that are directly, or indirectly, antisemitic or otherwise discriminate against Jewish people. These protections… are all enforceable by the Courts.
So the Bill does nothing to counter anti-Semitism; protections against that are already in place.
There would appear to be at least two possible interpretations of what conduct is intended to be prohibited:
Interpretation 1 is that the Bill is directed at the policies of foreign governments only in so far as they relate to territorial disputes, or disputes limited to particular territories, whether they be internal or external territories to the foreign government.
Interpretation 2 is that it the Bill prohibits any relevant decisions based on moral or political disapproval of a foreign government. On balance, I consider that a court would determine that this is the correct interpretation of the clause… This … is supported by the fact that Israel (i.e. an entire country) is specified … in addition to the Occupied Palestinian Territories (hereinafter the ‘OPT’) and the Golan Heights.
Assuming Interpretation 1 applies then it would create an artificial distinction between acts borne of moral/political concerns arising out a territorial dispute (prohibited) and acts motivated by non-territorial based moral/political concerns (untouched by the Act). By way of example, the Bill would not impact a decision to refuse to buy certain goods from China because of its general disregard for human rights but would render unlawful a decision not to buy cotton goods from Xinjiang because of the crimes against the Uighur people2. That is because only the latter decision would be based on a consideration ‘relating to a territory’.
This is utterly illogical and exemplifies the dangers of seeking to introduce legislation of general effect in order to address a specific discrete concern. Even more starkly, the Bill would not prevent a local authority from refusing to buy any Israeli products for reasons unconnected to a territorial consideration – for example, because of discriminatory practices against Palestinians with Israeli citizenship living within the Green Line. That is because the discrimination is not one based on a territorial consideration but rather once based on race. Ironically therefore, the Bill (if Interpretation 1 applies) would in reality increase the prospects of public authorities making decisions based on the internal domestic policies of Israel rather than concerns about treatment/status of Palestinians in the OPT.
Assuming that Interpretation 2 applies, then … it will preclude public authorities from having regard to any human rights violations of a foreign government when making relevant decisions. Save for the limited exceptions provided for in the Schedule, it would at a stroke preclude public bodies from taking into account a range of deplorable conduct of a foreign state from genocide, unlawful military invasions, war crimes, other crimes against humanity and racial discrimination etc. On the face of the Bill this would preclude a council from refusing to purchase goods from Russian occupied Ukraine, or from Myanmar, or North Korea or any country on the basis of disapproval of their systemic human rights violations. Had legislation of this nature been in effect in the 1980s it would have rendered it unlawful to refuse to source goods from apartheid South Africa.
The enactment of the Bill would seriously hamper any public body exercising an ethical approach to (at least) its purchases and investments.
So if Interpretation 1 applies, then the Bill encourages public bodies to refuse goods from Israel on the grounds of any ill-treatment of non-Jewish people living within the internationally-accepted borders of that country. This would not be hard as a relatively-recent law there has turned everybody who isn’t Jewish into a second-class citizen.
And if Interpretation 2 applies (which is more likely), then the UK becomes a supporter of genocide, unlawful military invasions, war crimes, crimes against humanity, and most reprehensibly racial discrimination – the very behaviour that the Bill ostensibly seeks to curtail.
Many would be proud of the role played by local authorities in this country to oppose the South African apartheid regime. These acts have been propelled not simply by morality but by the perception that boycotts and other economic measures can have a positive impact on the promotion of human rights globally.
The prohibition … cannot logically be justified on the basis that it will always be inappropriate per se for public bodies to base their decisions on disapproval of a foreign country’s conduct. That is because the Bill itself recognises that in certain specified circumstances (i.e. those provided for in the Schedule) it will be entirely appropriate to take such steps.
What the Bill does … is remove the power of local authorities to make those decisions for themselves. Rather the decision is now vested solely in the hands of the Secretary of State although even then s/he is absolutely barred from making an exception in respect of Israel, the OPT or the Golan Heights.
In placing the power of exemption solely in the hands of the Secretary of State the Bill effectively infantilises all other public bodies, many of whom have a long history of using their economic purchasing powers in order to avoid supporting human rights violations and/or to pressurise foreign countries to adopt change. This would seem at odds with the general tenor of Government policy to decentralise power. It would also seem impervious to the democratic and legal restraints that already operate on public bodies such as local authorities. Not only are voters able to influence decision making processes in local government (often in a far more direct way than permitted in our parliamentary system) but they are also able to effect change through the ballot box. Similarly, decisions of local authorities which are discriminatory, or outwith their powers, or unreasonable are subject to reversal through judicial review and legal campaigning.
So – again – there are already protections against public bodies misusing their powers.
The ultimate sanction of effecting change through the ballot box is one that should have given the Tories who drafted this Bill cause for serious reconsideration. That it did not suggests an extremely cavalier attitude to election results.
History has shown the capricious consequences that flow when powers of this nature are removed from hundreds of public bodies and placed exclusively in the hands of one decision maker. During the apartheid regime local authorities in the UK played a prominent and powerful role in the South Africa boycott campaign. Had this Bill been in force during the 1980s this would have been very likely deemed unlawful and no exemption granted in light of the position of the then Prime Minister that Nelson Mandela was a terrorist and the apartheid regime was an ally.
In other words, if enacted in the 1980s, this Bill would have made the UK a staunch supporter of the racist regime in South Africa. It is even possible that, with such tangible support from Thatcher, apartheid may have remained in place to this day.
Whilst the Schedule provides some very limited … exemptions (labour rights, bribery and environment) it does not include other human rights abuses such as genocide, the systemic use of torture, other crimes against humanity and grave breaches of the Geneva Convention. From an international law perspective these are distinctions without any logical basis.
It would seem odd in the extreme that the Secretary of State is vested with powers to make exemptions for any country in the world except Israel, irrespective of what the ‘facts on the ground’ at any given time might be. Israel could only ever be included by amendment through primary legislation. In circumstances in which, if enacted [the Bill] would automatically render a BDS motivated relevant decision unlawful, [it] seeks [to] ‘double lock’ the position and tie the hand of the Secretary of State in respect of one country, and one country alone.
So Israel is given special status.
[The Bill is] rendered even more alarming, certainly from a legal and international relations perspective – by the inclusion [in the exemption] of the OPT and the Golan Heights in addition to Israel. This accords to territories occupied since 1967, (and deemed an unlawful occupation in international law) the precise same specially protected status as Israel itself. This effectively equates the OPT with Israel itself and is very difficult to reconcile with the long-standing position of the United Kingdom which supports a ‘two-state solution’ based on ‘1967 lines’ in which the security and right to self-determination of both Israelis and Palestinians are protected.
So the Bill contradicts the UK’s stated policy on Israel and Palestine.
The effect … is that no exemptions can be made, even by the Secretary of State, to permit any decision maker to ever take into account the status in international law of the OPT or human rights abuses occurring there.
The terms of this exemption … are also very difficult to reconcile with our obligations under international law… Legislation prohibiting local authorities from taking steps to promote Palestinian self-determination within the OPT, taken with the terms of the exclusion… would likely place the United Kingdom in breach of international law obligations.
The UK’s support of Israel would make it a criminal state.
The fact that the clauses would put the United Kingdom in breach of its international law obligations is likely to give rise to early legal challenge to the Bill should it be enacted. That is not least because [the Bill] (rightly) provides that nothing in [it] should prevent the decision maker from acting if it would otherwise place the UK in breach of its international law obligations. One can readily foresee a public body reasonably deciding that purchasing goods made in illegal Jewish settlements in the OPT would place the United Kingdom in breach of its international law obligations. Such public bodies may well consider it prudent to test the issue through judicial review before exposing itself to the risk of penalties. Accordingly, an unforeseen consequence of this Bill might therefore be that the English courts will be required to adjudicate upon the legality of the occupation of the OPT in order to ascertain whether a decision not to purchase goods was justified … so as to avoid placing the UK in breach of its international law obligations. Whereas domestic courts to date have been reluctant to adjudicate upon issues relating to the OPT, the terms of the Bill may well require them to do so.
The Bill is likely to lead to decisions making it clear that Israel is a criminal state, according to UK law – and in contradiction of the intentions of its authors.
[The Bill] prohibits public bodies not simply from saying that they intend to act in a manner prohibited by [it] but (even more controversially) that they would have done so but for the prohibition. This is a legally unprecedented restriction on the ability of relevant bodies, many of them directly elected, to express a view on their own decision-making process. Indeed, the law would have the extraordinary effect of making it illegal for a decision-maker who has complied with the [Bill’s] requirements … to state that the only reason they have taken that decision is because they were required by the law to do so, and that – were the terms of the law different – … they would have acted differently. A relevant body would be prohibited, for example, from explaining to constituents that they did not want to purchase goods from North Korea but were prevented from not doing so by the Bill/Act. This is an extraordinary gagging clause on democratically elected politicians and public bodies.
What would be the purpose behind this? Is it to make it seem that public bodies in the UK actually support Israeli atrocities when they don’t? Would this not have a chilling effect on people wanting to take part in local democracy? Would they step aside on the grounds that this is against their principles? And would this leave space for people who do support atrocities – exactly the sort of people who should be nowhere near public power – to step in and take over?
This is not just an attack on free speech but on democracy itself – as Mr Hermer makes clear:
Freedom of expression has long been recognised as one of the essential foundations of a democratic society and the rule of law. It is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that often, shock or disturb the State or any sector of the population… Here under the terms of the Bill, if a Council Leader was asked whether she was in favour of the local authority procuring goods from Xinjiang in the face of genocide she would have to refuse to reply, perhaps stating “I am prohibited by s.4 of the 2023 Act from answering that question or providing any indication (be it by words, statements or any indeed any facial expression) as what the council would do if not prohibited”
[The Bill] if enacted is highly likely to be deemed incompatible by the Courts with Article 10 of the ECHR, in particular (i) the relevant public official’s right of freedom of expression and (ii) the right of the public to receive information on matters of public interest/importance… It is vanishingly unlikely that the terms … could fall within an established Article 10(2) justification. This means that any the Bill, if enacted into law, would be readily amenable to a challenge, pursuant to section 4 of the Human Rights Act 1998, on the basis that it is incompatible with a Convention right.
So the Bill would lay the government open to court action for inhibiting free speech.
The ‘Enforcement Authority’ (Secretary of State or Treasury, or Office for Students) [would have] a power to issue written notices requiring a person to provide a wide array of information and to penalise breaches and non-performance. The grounds on which their powers can be exercised are very wide indeed – a person merely needs to be suspected of being in the process of making a prohibited decision or about to make a prohibited statement. For example, if a person is served with a notice … they are obliged to hand over all information ‘likely to be useful’ to the enforcement authority in determining whether an offence has, or is likely to be, committed. The powers provided … to compel the production of documents are particularly troubling from a legal perspective. On their face, they appear to provide unprecedented powers to compel a person to hand over materials that would otherwise be protected by legal professional privilege. Remarkably broad, this would therefore be handing the enforcement authorities more powers than those enjoyed by anti-terrorism police and the security services. The Secretary of State [is also provided] with what is commonly referred to as a “Henry VIII power” giving her/him unchecked powers to change an enforcement authority (including that there not be one) in respect of particular types of decisions or statements.
In other words, public authorities may be penalised for even considering (for example) refusing a contract with an Israeli company working out of Palestine. And the government would be permitted to decide who to penalise or whether to penalise them at all, giving rise the possibility of favouritism. Or am I misreading that part?
As you can see, the legal advice is that the Bill is defective and should not be enacted in any way.
Ms Nandy, a staunch supporter of Israel who is not one to take sensible advice well, ignored it.
She spoke against BDS during the debate – in misleading terms:
And then she abstained on the vote (along with almost all of the 195 Labour MPs in the House of Commons. This means they allowed it to pass on to its Committee Stage by a vote of 268 in favour to 70 against.
This is because Keir Starmer, Labour’s leader and another staunch supporter of Israel no matter what it does, demanded the abstentions:
Still, some Labour MPs did oppose the Bill, but even this has led to division:
Zarah Sultana had previously stated that she was unable to attend the debate but would have voted against the Bill:
Taking all of the above into account, it seems unreasonable for any UK government to have brought a Bill as flawed as this before Parliament at all.
It is unnecessary because protections already exist to stop anti-Semitic discrimination against Israeli goods and businesses (and indeed any unreasonable discrimination against goods and businesses from another country).
It is undemocratic because the right to boycott goods and firms from a foreign country based on that country’s actions is also enshrined in law, and the measures proposed by the Bill to enforce its restrictions contradict other UK and international laws.
It is counter-productive because, if enacted into law, it is likely to generate court proceedings that will expose Israel’s behaviour towards Palestine as illegal according to international law, and its own provisions as unlawful in the UK.
In short, it will create a multitude of problems without solving any at all.
The only reason for the attempt to enshrine it in law, then, is financial. Or so it seems to me. Can anyone suggest an alternative?
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