Lord Warner:

Moved by Lord Warner

20: Clause 3, page 3, line 7, leave out subsection (7)

My Lords, despite the last debate, this amendment brings us to the heart of what I regard as a misguided Bill: Clause 3(7), which effectively provides the State of Israel with a considerable, unique protection, almost in perpetuity and certainly until new legislation is passed to overturn it. I will make three main points to justify the changes to this provision.

First, the primary justification for this extraordinary legislation is that boycotts, disinvestments and other such campaigns not only undermine UK foreign policy but lead to

“appalling antisemitic rhetoric and abuse”,

in the words of the departmental press notice launching this Bill. Yet, many groups in the Jewish diaspora have said that the Bill will not combat anti-Semitism. The Government’s claim that it will has been convincingly challenged by evidence produced for parliamentarians by the organisation Jews for Justice for Palestinians. Its evidence demonstrates that the rise in anti-Semitic incidents is

“correlated closely with spikes of violence in Israel and Palestine, particularly with the major Israeli army attacks on Palestinian areas, not with boycott and divestment advocacy”.

It was that formidable campaigner against anti-Semitism, Dame Margaret Hodge, who said in the Commons that this legislation would increase anti-Semitism.

Secondly, alongside drafting a Bill that is more likely to increase anti-Semitism than reduce it, the Government seem to have used wording in Clause 3(7) that is at odds with the UK’s stated foreign policy, because it includes “the Occupied Palestinian Territories” and “the Occupied Golan Heights” in the protection given to Israel. By treating these two areas as part of Israel, the passage of the Bill would seem to mean that the UK is legitimising Israel permanently retaining two large swathes of territory obtained by acts of war. As the noble Lord, Lord Hain, who is unfortunately not in his place, Amnesty International, and others have pointed out, this would mean that the Bill will violate UN Security Council Resolution 2334, which the UK voted for. The resolution declares Israeli settlements in the Palestinian territories occupied since 1967, including east Jerusalem, as legally invalid and a clear violation of international law.

Thirdly, the Government’s claim for this legislation is that it makes it clear internationally that it is the Government who determine UK foreign policy, not protestors or other levels of government. Most people in this country and overseas would assume, then, that when the Foreign Secretary utters on policy towards Israel he speaks for the Government—therefore, they can rely on him to set out the current policy. With this in mind, I draw the Committee’s attention to a piece in the Times on 22 March with the headline:

“Gaza aid held up by arbitrary Israeli denials, says Cameron”.

In that piece, the noble Lord, Lord Cameron, is quoted as telling the Commons Foreign Affairs Select Committee that it was,

“‘an enormous frustration’ that aid had been ‘routinely held up waiting for Israeli permissions’”.

To make sure that his views were fully understood, the noble Lord seems to have gone on to say that:

“Israel’s ‘arbitrary denials’ of aid being sent to Gaza is now the ‘main blocker’ to providing humanitarian assistance”.

All this on top of suggesting, in February, that the UK could unilaterally recognise a Palestinian state in the aftermath of a ceasefire.

The noble Lord, Lord Cameron, has accompanied his words with deeds, by imposing sanctions on extremist settlers in the Israeli-occupied West Bank who have violently attacked Palestinians. He went on to say:

“This behaviour is illegal and unacceptable … Too often, we see commitments made”— by Israel—

“and undertakings given, but not followed through”.

I found the noble Lord’s views refreshingly frank, and rather similar to my own. However, I also found it difficult to reconcile them with the wording and timing of the Bill.

We are now in a rather bizarre situation. On the one hand, we have Michael Gove bringing forward a Bill to give unprecedented protection to the Israeli Government —I could, if I were unkind, say that Clause 3(7) could have been drafted by Mr Netanyahu and Likud. On the other hand, there is the Foreign Secretary laying into the same Government for blocking humanitarian aid to a territory in which thousands of women and children have been killed or displaced, and are starving, as a result of Israeli military action.

Any responsible public body decision-maker or international observer would be entitled to be confused about what the UK Government’s policy is toward the current Israeli Government. Should people heed Mr Gove’s Bill or the words and actions of the Foreign Secretary, who has actually seen what is going on in Israel and the occupied territories? What would the Minister’s advice be to any confused citizen? Perhaps she and her colleagues might want to further consider accepting my amendment. I beg to move.

My Lords, I am pleased to support the noble Lord, Lord Warner, in his Amendment 20, which, as he set out, would delete Clause 3(7) of the Bill. I do so because what is already a very bad Bill is made worse by this subsection. First, it singles out Israel as the only country which cannot be exempted from the provisions of the Bill, even should a future Government decide that such an exemption should be made. The noble Lord, Lord Mann, has set out why that is potentially problematic in relation to the IHRA anti-Semitism definition. Moreover, Ministers have frequently argued that legislation should not single out individual countries but rather should apply common principles. Clause 3(7) goes completely against that approach and, in doing so, sets a dangerous precedent. Like the noble Lord, Lord Warner, I seriously doubt that it will do anything to tackle anti-Semitism; in fact, it is most likely to be counterproductive.

Secondly, as we have heard, Clause 3(7) conflates Israel and the Occupied Palestinian Territories, contradicting long-standing British-government policy and violating UN Security Council Resolution 2334, which was co-authored by the UK, voted for by the UK, and requires member states to distinguish between Israel and the Occupied Palestinian Territories. As far as I can see—and we have heard a lot about local government and other public bodies not setting foreign policy—the Department for Levelling Up, Housing and Communities is promoting legislation that directly contradicts UK Government policy and the UK-authored Security Council resolution as part of a Bill whose declared objective is to prevent public bodies contradicting government policy.

This contradiction of settled UK foreign policy has serious ramifications which Ministers are trying to avoid by pretending that the Bill is compliant with Resolution 2334. At Second Reading in the other place and in response to Dr Philippa Whitford, who asked why the Bill did not distinguish between Israel and the Occupied Palestinian Territories as required by the resolution, Michael Gove stated that

“they are separated in the Bill. I am afraid the hon. Lady is wrong

His claim is apparently that the separation of Israel and the Occupied Palestinian Territories between paragraphs (a) and line (b) of subsection (7) satisfies the requirements of Resolution 2334, but of course that is nonsense. The resolution does not call for the semantic separation of the State of Israel and the Palestinian territories; rather, it

“Calls upon all States, bearing in mind paragraph 1 of this resolution, to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”.

It is absolutely clear that the “relevant dealings” of the Bill explicitly do not distinguish between the two, because subsection (7) applies equally to them. I hope the Minister will address this issue, because she seemed herself to stray towards this sort of Govian sophistry at Second Reading in this House.

For all those who want to see peace and security both for the people of Israel and the people of Palestine, Israel’s continued illegal occupation and illegal settlement of the Palestinian territories is both a tragedy for the people of Palestine and a disaster for the people of Israel. To my mind, it is wrong to single out Israel, or, indeed, any other countries, from the provisions of the Bill, but to do so in respect of the Occupied Palestinian Territories is not only wrong in principle but wrong in law and contrary to established UK foreign policy. It cannot be right for the Government to prevent public bodies exercising their legal and moral judgment about engaging in economic activities with settlements in those territories. Indeed, given that the settlements are illegal under international law, the Government appear intent on forcing public bodies to ignore their international law obligations. That is presumably why we get into all the confusion of the exemptions under paragraph 6 of the Schedule.

For years, the international community has been calling on Israel to halt the illegal settlements and end the occupation, and for both parties to cease violence and arrive at a peace settlement based on two states living side by side in peace and mutual respect. Yet in that time, successive Israeli Governments have seemed determined to deliver the maximum national humiliation for the Palestinian people. Settlements have expanded ever further and they have often stood aside in the face of settler violence. Those Palestinians who want a peaceful resolution with Israel have been consistently undermined. This in turn has empowered the violent extremists who have no desire for peaceful co-existence with Israel and who have flourished instead.

Clause 3(7) is deeply damaging, because it suggests to Israel that its conduct in the Occupied Palestinian Territories does not matter and that it is immune from any criticism from its friends, whatever it does and however it acts. That is not a demonstration of friendship; it is the encouragement of a dangerous delusion that will lead the region to ever greater disaster. We should cease encouraging that delusion. A good place to start would be to delete Clause 3(7) or, better still, to dispense with the Bill altogether.

My Lords, I support the amendment introduced by my noble friend Lord Warner. It is conceivable that the Government’s objective of exempting the State of Israel—I say that carefully, the State of Israel—from the imposition of BDS, which I do not support, could be achieved with different drafting. However, to have introduced it in the way that it is introduced in Clause 3(7) is a mistake, and the mistake is compounded by mixing up completely different things: the State of Israel and the Occupied Territories, which certainly include the West Bank, east Jerusalem and the Golan Heights. They should not be treated in the same way. They are not part of the State of Israel in the view of the British Government, though they are in the view of the present Israeli Government. I repeat, they are not in the view of the British Government part of the State of Israel. Within those Occupied Territories—Golan, east Jerusalem and the West Bank—there are internationally illegal settlements. Illegality is another category on which the British Government’s policy is quite clear—just read the Security Council resolution, which has been quoted. Mixing these things up together is, frankly, a solution of disaster. It will just doom this legislation by including it.

I am not trying to suggest that it would not be possible to do something, though I doubt very much whether specifically mentioning Israel is a wise thing in the first place. I agree with the Government that public bodies should not be making foreign policy, but I am not sure that specifying one country out of 194 where they particularly should not be making foreign policy is a very clever way of setting about that. If you took that away and tried to sort out these unhelpfully mixed-up elements, there might be a better chance of this Bill making progress. So long as they are all mixed up together, we will have a cat’s cradle of contradictions.

My Lords, the noble Lord, Lord Warner, said that this Bill will increase anti-Semitism. That is one view. I prefer to observe what is actually happening. We only have to look at what is happening in universities at the moment; we will come on to universities in a later group.

If we look at what has been happening with the encampments that have been springing up in the UK following what has been happening in the US, they are vocally calling for boycott and divestment in relation to Israel—and, indeed, quite a lot worse. This is a very live issue. It is causing much harm on campuses for Jewish students, who are clear that there has been a significant increase in anti-Semitism since this has started. This is not theory; it is actually happening.

Israel is always the focal point for BDS campaigns. The BDS movement itself came into being to attack Israel. I am glad that we are aligned with the noble Lord, Lord Collins, on the need to protect Israel from those activities. From my perspective, if the Bill does nothing else, it should try to protect Israel from boycott and divestment activities. That is why we need Clause 3(7): it underlines the importance of Israel and the particular attacks on Israel.

I accept that the Occupied Territories raise much more difficult issues. In line with the international community, the UK recognises the settlements as illegal, but the practicalities are that this will not be settled conclusively until there is a two-state solution. This is something that cannot be imposed; it will have to be agreed, but that is unlikely to happen very soon. Anyone who has been to Israel or has been in touch with people in Israel will know that the attacks by Hamas on 7 October have left a traumatised Israeli people, for whom the possibility of discussing a two-state solution seems almost unthinkable at this point in time. That is not to deny that that is the right solution in the long term but simply to say that it does not appear to be an immediate, practical problem.

The reality on the ground is that, in the meantime, the unsatisfactory nature of the Occupied Territories is likely to continue. Even if we thought that boycotts and divestments in relation to the Occupied Territories would punish Israel, this ignores the simple fact that there is economic activity in those settlements. Anything that harms that will almost certainly harm Palestinians as much as it harms the people of Israel. We only have to look at what happened when SodaStream, an Israeli company, was forced to withdraw from its activities in the occupied West Bank. The people who really lost out were the Palestinians who lost good, well-paid jobs when that facility had to close.

On our last day in Committee, the noble Lord, Lord Collins, pointed me to the FCDO guidance, which I duly went and read; he has read much of it into the record today. The important thing about that guidance is that, although it highlights the risks involved, it does not prohibit anyone in the UK from investing or dealing with those who are active in the Occupied Territories. I believe that this Bill reflects that pragmatic position—that the Occupied Territories are a fact of life—and that, until there is a two-state solution, trying to eliminate it from the Bill does not reflect the practical politics we are facing.

I did indeed read it into the record. Although it did not prohibit investment, it was saying, “Don’t do it. The risks are great. Be aware of those risks and seek legal opinion on them”. We are now debating a Bill that will say that you cannot make a decision based on the advice that the Government have issued.

The noble Lord is right that the FCDO highlighted the risks and said that businesses involved should seek their own legal advice but it absolutely did not say, “and you mustn’t do it”. It is a fact of life that there will be economic activity in the Occupied Territories and that that may or may not involve businesses from Britain.

The only point I am trying to make is that the Occupied Territories are a fact of life at the moment; there is no easy solution and it is probably not a near-term solution. At the point when it is settled via a two-state solution, they will cease to be Occupied Territories, so that bit of the Bill will cease to have any relevance—but, for the moment, it has relevance. The other point I am trying to make is that anything that deliberately harms that is just as likely to harm Palestinians as it is Israeli citizens.

My Lords, I am puzzled by the speech that the noble Baroness, Lady Noakes, has just made. First of all, I do not know why she feels that she can speak up on behalf of the Palestinians or how much time she has spent on the West Bank. I do not think that most of them would agree for one moment with anything she said about the proposal that we should stop, or that including Israel and the Occupied Territories in the Bill would damage the Palestinians. The Palestinians are concerned about their basic rights both to have their own state and to be able to live in what is now occupied by the Israeli Government and the Israeli Defence Forces in the completely different way that that occupation has created.

I am also very puzzled by what she said about anti-Semitism, which is in complete conflict with what was said by Margaret Hodge MP, who has thought about this very deeply—that the Bill is damaging from the point of view of creating anti-Semitism rather than alleviating it. The noble Baroness does not really respond to that point but has made points about what is happening in universities at the moment, which does not seem terribly relevant to this.

However, the point I really want to make is not to address the rather odd speech by the noble Baroness, Lady Noakes. I want to ask the Minister: what legal advice have the Government taken about including the Occupied Territories in the Bill in the way that they are? I draw the Committee’s attention to what the noble Lord, Lord Hannay, said: under international law, which we have accepted, this occupation is illegal and the settlements, which have grown and grown, are also illegal. So how can it be that the Government bring to Parliament a Bill that includes the Occupied Territories and does not differentiate them from the state of Israel? The counsel’s advice that I have seen says that to distinguish them is absolutely essential; it is pure sophistry to say that a distinction is made in the Bill and is an untenable view without any legal merit. I wonder whether the Minister would like to comment on that.

House resumed. Committee to begin again not before 7.24 pm.