The boycott bill gets a mauling

Second reading of a bill in the House of Commons is usually an opportunity for the government to set out its principled case for legislation, and bask in the glory of support from its own side.

But not only did the Economic Activity of Public Bodies (Overseas Matters) Bill get a mauling from the opposition last night, the government’s own side offered up a raft of concerns about the bill that many are dubbing the “Boycott Bill”.

My colleague Michael Salmon explained the proposals when they were introduced into the house last month. Communities Secretary Michael Gove confirmed its key purpose in the opening to the debate – to tackle things like the Boycott, Divestment and Sanctions (BDS) movement in public bodies:

In our 2019 manifesto, this Government committed to “ban public bodies from imposing their own direct or indirect boycotts, disinvestment or sanctions campaigns against foreign countries.” The Bill does just that—no more and no less.

Shadow Secretary of State Lisa Nandy argued that it should not be wrong in principle for public bodies to take ethical investment and procurement decisions:

In fact, there is a long history of councils, universities and others taking a stance in defence of freedom and human rights.

Universities and students were deployed at various points in the debate. Matthew Offord (Con) argued that the BDS movement and its increased presence on university campuses has seen the Community Security Trust state that there has been a 22 per cent increase in campus antisemitism:

We are now in a situation where many of my constituents will not go to university because they face such hostility.

Many pointed to the anti-apartheid movement and boycott decisions taken by local authorities back when the government supported apartheid in the 80s. Nadia Whitthome (Lab) argued that people tend to not want their own university or local authority to be complicit in human rights abuses:

In Nottingham, we have significant numbers of people, including Hongkongers and those from other parts of the world, who have fled from many countries perpetrating human rights abuses. They rightly do not want their councils or universities to be complicit in human rights abuses that their family and friends continue to experience.

Margaret Hodge (Lab) was one of many baffled by the apparent incompatibility of the bill with recent measures on freedom of speech:

I learnt that fighting the British National party in the 2010 general election. I did not beat Nick Griffin by refusing to engage with him. It was by engaging publicly, by his appearance on “Question Time”, and by allowing him free speech that we exposed what a vile, divisive, racist party he led. Unmasking him through debate helped us to smash him at the ballot box. The Government have just legislated to enshrine free speech in our universities, but are now cancelling the freedom of elected officials in this grubby little Bill.

And Kit Malthouse (Con) pretty much agreed:

We have just passed a law to guarantee academic freedom: freedom on campus. For that freedom now to be restricted. particularly for those in leadership positions in universities, strikes me as perverse. It should come as no surprise that the Union of Jewish Students is flatly opposed to the Bill, which is apposite given that its members are often the people most exposed to antisemitism in this form.

There were three themes to the critique. The first was the way in which, in attempting to catch BDS campaigns, the proposed legislation apparently catches all sorts of other arguably more palatable types of ethical decision making.

Clause 1(2) of the bill creates a general ban on public authorities (including universities) from being influenced by political or moral disapproval of foreign state conduct in relation to a “territorial consideration” when making procurement and investment decisions.

A legal briefing from Richard Hermer KC was deployed at various points in the debate to point out some of the problems with the drafting. The bill’s Clause 1, he argues, could 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):

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 people… One could make a decision not to invest in Sri Lanka because of discrimination against their Tamil minority generally but not because of crimes against humanity committed against the Tamil population in the north.

But he argues that the other possible interpretation could be worse:

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.

Given universities are “hybrid” public authorities, the bill would only apply to those activities that are public in nature. But even if we ignore student campaigns for a moment, the pressure on universities to have and adopt ethical policies from research funders could create real issues if a university is prevented from even thinking about human rights around the world.

The second big critique surrounded the so-called “gagging clause” in the bill. Clause 4 prohibits public bodies from making public statements indicating that they intend to act in a way that would contravene the ban, or that they would, in theory, intend to act that way if not for the ban.

That would appear to mean that a member of a university governing body, when contributing to a debate about a particular procurement decision, could no longer make statements such as the following:

Our university would have boycotted these goods from this state-owned enterprise due to the state’s conduct in relation to this territory, but the law does not permit this, and we intend to comply with the law.

Liberty argues that this a “staggering” interference with individuals’ exercise of the right to free political expression – given that it would effectively ban public bodies (and those who make decisions on behalf of public bodies) from simply expressing their desire to engage in boycotts:

Banning individuals from expressing political views in this way is highly likely to be a disproportionate interference with article 10 ECHR, especially given the recognised weight and importance accorded to free discussion and debate as an essential part of a democratic society.

It certainly puts SU Officers who sit on the governing bodies of their universities in a bind. If their democratic structures lawfully pass pro-BDS resolutions aimed at influencing their university’s investments or procurement, it effectively prevents them from ever discussing them out loud.

Even a chat with the VC or the Chair of Finance Committee would appear to be ruled out given that a “decision-maker” would be required to not have regard to a territorial consideration:

…in a way that would cause a reasonable observer of the decision-making process to conclude that the decision was influenced by political or moral disapproval of foreign state conduct.

And even if you have a deep distaste for BDS, the gag would appear to apply to all sorts of other human rights abuses.

That “thought crime” issue caused Desmond Swayne to pipe up seconds into Gove’s speech:

Were I to be a leader of a local authority opposed to the provisions of this Bill, once it became an Act, if I continued to say that I disagreed with its provisions and what I might wish to have done with the Toggle showing location of powers I retained were those provisions not to have been made law, I would be breaking the law. That cannot be right in a free society, can it?

The third set of critiques surrounded the “singling out” (or, for others, appropriate targeting) of Israel on the face of the bill, and the way in which it gives the Secretary of State the power to create exemptions based around the government‘s current foreign policy. Some argued, for example, that the bill would have prevented local authorities from making relevant decisions in relation to Russia ahead of the government’s own sanctions regime coming into force. Others worried that the bill cuts across otherwise devolved matters.

Naturally, this being the House of Commons, the opposition amendment fell and the bill passed second reading. But let alone what might happen in the Lords, we should expect some substantial revisions when the bill goes onto Committee stages in the Commons.