Baroness Chapman of Darlington:

Moved by Baroness Chapman of Darlington

33: Clause 4, page 3, line 18, leave out paragraph (b)Member’s explanatory statementThis amendment would remove the prohibition on a person publishing a statement indicating that they would have acted in a way prohibited by Clause 1 if it were legal to do so.

My Lords, I rise to move this amendment with the permission of the noble Lord, Lord Willetts, who, owing to the delay to the start of today’s deliberations, is unavoidably detained at an event being held, I believe, in his honour, so it would have been incredibly rude for him not to be present. Given that I think we are of one mind on this issue around Clause 4, I am very happy to speak to the amendment on his behalf.

There is much to complain about with this Bill, as we have heard in every group that we have discussed so far, but to my mind Clause 4 has to be one of the most egregious, nonsensical and unnecessary clauses in the entire Bill and, for that matter, pretty much any Bill that I have ever been involved with bringing through either House.

When I first read this clause—which talks about statements that a public body may make with regard to whether it will be taking a decision on BDS— I thought, “Ah, what the Government are trying to do here is to stop a public body making a statement that could be interpreted as a threat to commit to a boycott, or to divest”. But that is not right. This is a prohibition on making a statement that you are not going to enter into any kind of divestment or boycott decision. This is extremely odd.

I will give what might be a ridiculous example, but then I think this is a ridiculous clause; I will use it to explain to noble Lords just how crazy this is. The Minister is a stylish lady. I saw her when she walked in tonight and I thought she looked good. She has a very nice handbag with her this evening. It is very smart. I might have thought to myself, “I wouldn’t mind having that handbag away; I think I’ve got an outfit that it could go with”. But I will not do that to the Minister, because it would be a crime.

I can stand here and say that I am not going to take her handbag away with me tonight because it would be a crime and would, quite rightly, cause me to be punished, perhaps lose my job, embarrass the kids and all the rest of it; I am not going to do that to the Minister. I can say that; it is perfectly fine for me to say that about the crime of theft and depriving the Minister of her smart handbag. I can stand here, or anywhere I like, and make that statement. I am not threatening to do anything or saying that I intend to take away her handbag. I am saying that I am not going to remove her handbag because that would be a crime. That is fine for me to say.

I am not able to make an equivalent statement about divestments or boycotts if I am a public body under Clause 4. That is over the top, unnecessary and something that I cannot think we would ever apply to any other crime. We do not apply this to terrorism, child abuse or murder but, for some reason, the Government think it is necessary to put in this Bill that a public body cannot make a statement saying that it will not breach the terms of the Bill. That is extraordinary.

Further, it cannot even be the case under Clause 4 that a public body should be likely to make such a statement that it intends not to break the law. I have never seen anything like this in a piece of legislation anywhere. I am very curious as to the thinking behind it. I wonder whether the Minister could point us in the direction of an equivalent clause in any other Bill, from any period in the history of this fine country. To me, this goes beyond a gagging clause, which I think it has been called. This is thought police. This is saying that, even if it is suspected that a public body is likely to make such a statement, it can be subject to an information notice, to penalties and to unnecessary intrusion. I just do not see why it is needed, even if we were to accept— and we do not—that the approach the Government are taking in the Bill as a whole would be successful.

The last time we met in Committee, the noble Lord, Lord Warner, raised some interesting points about Clause 4. He made a very good speech, but on Clause 4 he was asking the Minister about her statement of compliance with ECHR. It was his view that she may have been misled or ill advised, or that it may not have been correct for her to sign off on compliance, particularly with Clause 4 in mind. He committed to go away and consider that, and I am interested to hear what the noble Lord, Lord Warner, might have to say this evening. I suspect that he may have read the Constitution Committee report that advises that the House may wish to consider whether Clause 4 should be removed from the Bill. I think the committee has a very good point, and we are very much of the mind that Clause 4 should be removed from the Bill. The noble Lord, Lord Collins, has tabled his intention that Clause 4 should not stand part of the Bill.

Aside from the oddity of this and the fact that it is not really needed, I think I am right in saying that this clause is capable of being applied to elected representatives. I am thinking of positions such as the First Minister of Scotland, Wales or Northern Ireland, where the current postholders are not individuals known for hiding their lights under bushels. Were they to decide that they thought something the Scottish Government were going to do, for example, might contravene the Bill, are we seriously saying that the First Minister of Scotland would be prevented from making a statement explaining their position? I do not think that is viable or the right thing to do. I do not think that is the kind of country we are.

Elected officials ought to be obligated to say where they stand on these issues. If they would have liked to have done something—not that they are going to do it or threaten to do it but had that been their wish—they should be obliged to say that. They should be free to say that. The fact that the Government are asking us to pass a Bill that would prevent the First Minister of Scotland saying what they think is dangerous, unnecessary and not something that we on these Benches would ever support. I do not understand why the Government need to do this and I genuinely urge the Minister to reconsider. I beg to move.

My Lords, I support this amendment and the stand part notice, to which I have added my name. I declare again my interest that as a bishop I can, in certain circumstances, be deemed to be a public body in my own right. I can also assure your Lordships that I have no acquisitive designs on any noble Baroness’s handbag this evening.

Clause 4 represents an attack on free speech. It prohibits even statements that suggest a person would have acted differently had it been legal to do so, even if they make it clear that they are going to act within the confines of the law. It is hard—as the noble Baroness just said—to see this as anything other than a sizeable infringement on that basic right to free speech, which is a cornerstone of our democracy.

Your Lordships will not be surprised that I oppose that restriction as a matter of principle. Free speech should be limited only when it is absolutely essential in order to prevent some very grave harm. I have heard nothing to date to suggest that such grave harm is likely to arise. If the Minister or her colleague has an example—perhaps in the aforementioned handbag— I plead with her to share it with us tonight.

Having taken a matter of principle, let me now set out why I believe the clause also contains important practical challenges. The Local Government Association has labelled this clause as particularly problematic. The Government say in the Explanatory Notes that councillors are not prohibited from expressing support—including in minutes—but if that is so, why is it not clearly in the Bill? Why not just remove this problematic clause?

Aside from the moral qualms that we might have about limits on freedom of speech, it is difficult to see how this clause could be enforced. It makes councillors particularly vulnerable to challenge when we elect them to give their opinions; they have to be free to do so. I also know, from having served for a good number of years as the independent chair of a local authority standards committee, that it is not always clear when the elected member is acting on behalf of a council or on their own behalf. Noble Lords may well remember one famous case where this distinction lay at the heart of it, involving the person who was at that time the Mayor of London. Mayors are of course public bodies in their own right, and that entire case, at the various levels it went through, hung on whether at that time he was acting as the Mayor of London or simply as a private individual going about his own business.

We heard at Second Reading the concerns that this will create a culture in which difficult ethical discussions do not take place, because of fears that this clause might be brought into action. Later this year, we are going to have a general election, I believe. Many candidates in that election may also serve on local government bodies. It would be invidious to our democracy for a candidate not to be able to answer honestly a question raised at a hustings, or by a journalist, out of fear that action might somehow then follow under this clause.

I have focused on local authority members, but we have spent many hours already in Committee discussing the uncertainty as to who exactly constitutes a public authority or a public body, or even whether those two terms mean the same thing. If we end up with university authorities being so classified, do we really wish to fetter the free speech that lies at the heart of healthy academic institutions—in fact, the free speech of which, on just about every other occasion we have discussed it in this House, I have always felt this Government to be a strong supporter? The only way to avoid such a culture of intimidation, which I am sure we all agree would be detrimental to local democracy, and potentially to wider civic and public life, is to remove this clause altogether.

My Lords, I have been trying to think of the right reverend Prelate as a public body. He is certainly a public authority, but he is at most a hybrid public body. I am not quite sure what sort of hybrid he is in this respect.

My name is on Amendment 33 and the clause stand part notice. I make it clear that this entire clause should go. The exact phrase in the Conservative Party manifesto in 2019 was:

“We will ban public bodies from imposing their own direct or indirect boycotts, disinvestment or sanctions campaigns against foreign countries”.

There was nothing about what they say there, although I note that the department’s memorandum for us says:

“It is intended that the measures will be widely construed”.

This is widely construed to the degree of being ambiguous and imprecise, as so much of this badly drafted Bill clearly is.

Yesterday I ran into the noble Lord, Lord Frost, in the corridor and commented on his rather good article, which was in the Telegraph on Friday, on freedom of speech as fundamental to the Conservative Party. I then asked him what he thought about Clause 4 of this Bill. He looked at me in some confusion and said, “I thought that had been withdrawn already”. I wish that that thought was a precursor of the change.

I have found it difficult to find arguments in support of the clause. I looked through the Commons Public Bill Committee stage, where evidence was taken from the legal adviser to the Free Speech Union, who said:

“My position is that clause 4 really needs to go in its entirety … there is no need—I think it is not necessary either politically or perhaps even legally—to prohibit statements. The mischief that is to be prohibited is the threatened act … This Bill very clearly targets expressions of political and moral conscience, which is to say the form of expression that is most highly protected by article 10””.—[Official Report, Commons, Economic Activity of Public Bodies (Overseas Matters) Bill Committee, 5/9/23; cols. 38-39.]

of the European Convention on Human Rights. It is not just the European Convention; we go back to the Atlantic charter, the fundamental basis on which the post-war international order rested, drafted by British diplomats, and in which the four freedoms include freedom of speech and freedom of belief.

I note that, in the Commons stages, one Conservative MP, David Jones, said:

“This is a Conservative Government. Conservatives believe in and value free speech … This is a deeply un-Conservative measure and I believe that the amendment”— to Clause 4—

“is right and that the provision should go

The Committee should take that seriously. In the Commons debates, another Conservative MP referred to this clause and the ones that follow as introducing the concept of “thought crime”.

The Constitution Committee of this House’s very critical report says:

“The protection of free speech is a fundamental right. In our view, clauses 4(1)(a) and 4(1)(b) unduly limit freedom of speech … The House may wish to consider whether clause 4 should be removed from the Bill”.

I dare to suggest to the Minister that this House will reject this clause and that, when the Bill returns to the Commons, it is quite possible that a number of Conservative MPs who do believe in conservative values of free speech will find it convenient not to be there when the Commons vote again. Therefore, it would be wise for the Government to consider their position and, I suggest, withdraw this clause.

My Lords, the noble Baroness, Lady Chapman, was kind about my previous speech and almost enticed me to get up and go over some of this ground again. When I spoke on Amendment 19, I was concerned about the statement of compliance with the Human Rights Act that the Minister had signed in the Bill. I probably took my eye off the ball a little by going for that rather than Clause 4 directly. But I said that the reason for the non-compliance was the presence of Clause 4 in the Bill, which was clearly in breach of Article 10 of the ECHR. I asked the Minister to cite the Government’s legal advice that justified that statement of compliance. I was given the usual answer from Government Front Benches, that the Government do not reveal their legal advice.

After that event, I turned my attention, as the noble Lord, Lord Wallace, did, to the Constitution Committee’s report, which is an interesting document. Paragraph 5 says, in bold type, that this clause is in contravention of the ECHR. It does not mince its words; it says it clearly and unequivocally. It is worth looking at the make-up of the Constitution Committee. It has 12 members, five of whom are distinguished lawyers. It has a former Lord Chief Justice, a former Lord Chancellor and three eminent King’s Counsels. It also has a former Conservative Leader of this House: the noble Lord, Lord Strathclyde. The Minister was reticent about quoting the Government’s legal advice, but I am not at all reticent about citing the source of my legal advice: the Constitution Committee.

I can see no grounds why this Government should continue with this gagging clause when a very eminent set of lawyers on the Constitution Committee has said, in words of one syllable, that this is a breach of Article 10 of the ECHR. I will not go back over the ground about the statement of compliance—the issue is clear cut. It is that we remove this gagging clause, which is an impediment to free speech.

My Lords, I support the amendment that we are discussing, which would remove Clause 4(1)(b), and will speak also to the clause stand part issue that is grouped with it. I declare that I am a member of the Constitution Committee, about which the noble Lord was so complimentary a moment ago. I have also had a long involvement with Liberal Democrat Friends of Israel, and I understand where the pressure for legislation of this kind is coming from, and the concerns that have given rise to it, including some very aggressive campaigns that have occasionally veered towards anti-Semitism and contributed to a real sense of insecurity, leading to a demand for legislation of this kind.

When consideration was being given to a ban on boycotts, I do not think that anybody expected that this was going to include the sort of provisions that we are debating now—provisions to prevent people talking about a situation that has given rise to something as significant as a potential ban on boycotts. That is what this part of the Bill does—this prohibition of statements

“indicating (in whatever terms) … that the person intends to act in a way that would contravene section 1, or … that the person would intend to act in such a way were it lawful to do so”.

That really is the most preposterous set of words I have come across in any piece of legislation that I have looked at in my entire time in either House of Parliament. It is quite extraordinary and preposterous.

The Government are keen to explain that all sorts of people will not be covered or affected by it. The noble Baroness spoke earlier about councillors. In their Explanatory Memorandum, the Government are very keen to say “Oh, councillors won’t be covered by the Bill”. It is not entirely clear to me that this is true, but let us just accept for the moment that it is the Government’s position. The Explanatory Notes say that

“councillors of a local authority are not a public authority and, therefore, are not prohibited from expressing support for or voting in favour of a motion supporting a boycott or divestment policy. If a local authority published the minutes of a debate or a meeting in which a councillor said that they would be in favour of their local authority engaging in such campaigns, this statement would not be captured under this clause”.

The mere fact that this has been included in the Explanatory Notes suggests that the Government are a little worried on this point. Perhaps the Minister can explain how confident they can be that councillors are not covered.

Let us just take that situation a little further. Such a debate takes place in a local authority, and the minutes record that several councillors got up and said that they were very keen that there should be a boycott. The person who is, for the purposes of this legislation, a person who makes a statement on behalf of the authority, finds himself in a room surrounded by journalists and campaigners who ask “Why did you come to that decision? We’ve looked at your minutes and the majority of councillors said they were in favour of it—so why did you come to that decision?” To which the answer is, “I came to that decision because it would be against the law for us to do that, and this local authority is not going to do things that are against the law—we believe in the rule of law”. That statement would bring that person into jeopardy under the provisions of the Bill. We do not actually yet know what the system of enforcement is really going to be, because the Bill is unclear on the point. But that mere explanation of why that is the outcome—why there is not going to be a boycott by that authority—would be covered by the provisions of the Bill.

These provisions are not necessary, as my noble friend pointed out, to satisfy the Conservative manifesto promise, which made no reference to provisions of this kind. It simply indicated that the Government would

“ban public bodies from imposing their own direct or indirect boycotts, disinvestment or sanctions campaigns against foreign countries”.

There is nothing there about making sure that people could not explain what they were doing or not doing.

Here we have the ultimate paradox of a situation in which some country is the subject of a campaign because of its breaches of the rule of law—because it shows no respect for the law. The campaigners and people on a local authority or a public authority say, “We should boycott them because they don’t uphold the rule of law”, and the leadership of the authority says, “We can’t do that, because then we wouldn’t be upholding the rule of law, and we are in favour of the rule of law”. If they go out and make a statement saying so, once again they are in jeopardy under the provisions of this legislation. Do we support the rule of law or do we not? If we do, people should be allowed to talk about its relevance to that situation.

These provisions are quite extraordinary. There are a number of places in the Bill where the drafters have bent over backwards to try to enact provisions that do not have the wrong effects, and some pretty tortuous drafting has resulted. In this particular case, it is absolutely manifest that there is no justification for these provisions. They do not help the purpose of the Bill and they are a very damaging incursion into an area which, as the Constitution Committee pointed out, we should be protecting: freedom of speech.

I shall follow the line taken by the noble Lord, Lord Beith, who quoted from the Government’s Explanatory Notes. This is the House of Lords wording in the Explanatory Notes: it was supposedly toughened up following discussion in the Public Bill Committee in the House of Commons. So we have this explanation in front of us and I shall just quote again what the noble Lord, Lord Beith, quoted, which is that

“councillors of a local authority are not a public authority and, therefore, are not prohibited from expressing support for or”— my emphasis—

“voting in favour of a motion supporting a boycott”.

Can the Minister give us an assurance? If councillors vote for a boycott, which they are entitled to do, according to the Explanatory Notes, and if that boycott motion is passed, enforcement action is taken and ultimately a civil penalty can be levied, is there any prospect whatever of those councillors who voted for the boycott motion being surcharged? Because the prospect of that must clearly be a limitation on their ability to speak.

My Lords, as a Conservative, I believe absolutely in the right to freedom of speech, but I do not think that the limits on freedom of speech in Clause 4 are as great as some noble Lords have tried to make out. I do not think that Article 10 of the European Convention on Human Rights is something that affects the rights of individuals, and Clause 4 is fundamentally aimed at public authorities. I completely understand that there is a very small number of public authorities who can be individuals as well, but, as my noble friend the Minister explained at Second Reading and as the Explanatory Notes make very clear, the prohibition on statements is against public authorities and attaches to individuals only to the extent that they are speaking for the public authority. Even if it applies to the statements made by individuals on behalf of the public authority, the ban applies to the public authority and the enforcement action is taken against the public authority. So individuals are not targeted by Clause 4.

We have to remember that this is not an academic issue. We already know that councils are starting to pass BDS motions and they are against this Bill. We know that the student encampments are including demands or public statements on the conflict in the Middle East and on divestment. They may not get all their demands, but that is certainly where they are pushing towards. Without the Bill, I think we can be fairly sure that BDS activities and statements will continue to increase and that will have an impact on social cohesion, and a particular impact on the Jewish communities that are affected by the sorts of statements that are made.

The noble Baroness said that she is afraid that BDS statements will increase. Is she in favour of preventing such statements in unavoidably lively public debate?

Yes, I am against statements being made by public authorities. I am trying to make the distinction at the moment between public authorities and the individuals who are involved in those public authorities, who I think are hardly affected by this, except to the extent that they speak for the public authority. I think there is a case for taking a position against statements by public authorities, because of the impact on social cohesion.

We have to remember that this provision does not come from nowhere: it is rooted in the real, live example of what happened in Leicester Council back in 2014. It passed a BDS motion and then said, “only as far as legal considerations allow”. At that time, that was hugely divisive in the local community. It does cause very real harm and that is why this is so different from the kind of example that the noble Baroness, Lady Chapman, gave at the beginning, about wanting to make a statement about stealing my noble friend’s excellent handbag. This is about social cohesion, at the end of the day; that is why this provision is in here.

I have listened with interest to the noble Baroness. Can she explain why the rather talented and experienced Constitution Committee took a totally different view from her and was so concerned about Clause 4? Why is she saying that, in effect, it has got this wrong—that it should not be saying that Clause 4 should be removed from the Bill but should welcome it as delivering the requirements of the Bill? I am rather puzzled.

I have never been a member of the Constitution Committee—I am certainly not a current member—so I simply cannot answer that question. I do not know why it has reached the conclusions that it has, but I believe that they are not in accordance with the impact of Clause 4 as drafted.

When dealing with stopping people doing things and making judgments about whether doing so is right, a balance always needs to be struck. In this case, the Government have tilted the scales in favour of social cohesion. People may think that that is the wrong decision and that allowing elected officials to speak on behalf of an authority in the way that they want to is a price worth paying. I believe that, because of the limited nature of Clause 4 as drafted, it strikes the right sort of balance in this case.

We must remember that this Bill does not stop elected officials speaking in their own capacity, nor does it stop bishops doing so—not that that would ever be an easy thing to do. Individuals in public life can have a big impact on social cohesion, but they are not debarred by this Bill from giving their own views on BDS activities, even though they would have such an impact. In that sense, this Bill is a modest change to the status quo on public statements. It is certainly not as far reaching as people have tried to make out. I would like to get a little balance in this debate.

My Lords, the noble Baroness asserted that Clause 4 does not apply to individuals but only to entities. Clause 4 says:

“A person who is subject to section 1 must not publish”, and so on. In law, a “person” could be a corporation or an individual, but Clause 1 is quite clear in referring to a “decision-maker”, which can clearly be an individual. One can easily visualise a public entity where the decision is made by one person who has had authority delegated to them, a committee or group of people who have the power to make such a decision or the full council, body or whatever it may be. Clearly, Clause 4 is capable of being directed at individuals.

I hear what the noble Lord is saying. Clause 1 affects persons who are decision-makers. Decision-makers are defined in Clause 2, which uses the definition of public authority. As I said earlier, there are a very small number of cases where individuals can be decision-makers. It is not a question of people taking delegated authority to be decision-makers; if I were in a council and delegated to the chief executive, they would not thereby become the decision-maker. The decision-maker remains the public authority under the terms of Clause 2.

I refer the noble Baroness to Clause 1(7)(b), not just Clause 1(7)(a), which says

“any person seeking to persuade the decision-maker to act in a certain way”.

That sounds to me rather like an individual.

Indeed, but a person who is subject to Clause 1 is a decision-maker. The noble Lord has just referred to the person giving advice or the person seeking to persuade the decision-maker, but that person is not a decision-maker for the purposes of Clause 1, and therefore not for the purposes of Clause 4.

With all due respect, Clause 4 applies to Clause 1(7)(b), which refers to an individual. We must perhaps ask the Minister to advise us on whether that is true.

We discussed this very point on our first day in Committee, and I think I have stated the correct position on the interpretation of the Bill.

My Lords, to answer some of the points made by the noble Baroness, Lady Noakes, the idea that individuals are not targeted is certainly not sufficiently reassuring to make local decision-makers feel protected. Most of what is in the Bill seems to be very much targeted at local authorities and their members.

It is perhaps worth while to point out here, in this unelected Chamber, that councils are directly elected and are accountable to their electorate. They are also obliged to report back to their constituents about such things as decisions that they have made. I was a former leader of a council, and I would have wondered, on seeing this Bill, having been asked why I had made a certain decision, whether replying in a certain way would mean that I was prosecuted, or perhaps that I was not able to reply because I am forbidden to speak about this. There is sufficient lack of clarity in the Bill to make people wonder about that. I do not think that it has been demonstrated otherwise. As the noble Lord, Lord Warner, said, the Constitution Committee sees this as a major threat to free speech. We need some more guidance on this.

I take exception to the idea that, somehow, statements from student encampments are equated with statements issued by locally elected authorities and their officials. They are not the same at all. Local authorities have a constitutional role, and they should be respected as such. The contempt that I have heard from some people in this Committee is unwarranted, given the lack of evidence of councils making such decisions as are prohibited in the Bill.

The idea that prohibiting such statements will have a good effect on social cohesion is much more likely to have the opposite effect. If people are told that they are not allowed to make statements, they are much more likely to try to find other ways of getting their messages across. The idea of oppression leading to better social cohesion seems to me to be a false premise.

I agree with the noble Baroness, Lady Chapman, that there is a complete failure by many of us in this Chamber to explain why Clause 4 is necessary. We have not really heard any good reason, other than the noble Baroness, Lady Noakes, telling us it is for social cohesion.

On the idea that freedom of speech is offended by Clause 4, as the right reverend Prelate said, freedom of speech is a basic right and a cornerstone of democracy. Although we are an unelected House, we fight for democracy—I would hope—and stand by democratic principles, as has the Constitution Committee, as told to us by the noble Lords, Lord Beith and Lord Warner.

The practical issues with the Bill, as to how its provisions are actually enforced, is again something that needs clarity. As the noble Lord, Lord Warner, said at the beginning, we are discovering with the Bill that, the further we go with it, it really lacks clarity. Trying to establish what it is meant to do and how it is meant to do it seems to have defeated us so far.

We need much better clarification about the Human Rights Act. If the Constitution Committee of this House tells us that the Bill contravenes Article 10 of the Human Rights Act, we need to know how it is that Ministers are telling us that it is somehow compliant, as this is clearly not the case.

As the noble Lord, Lord Beith, said, to prevent people talking about issues important enough for them to be calling for a boycott is an outrage. The Explanatory Notes trying to maintain that somehow individual councillors will not be targeted or held responsible is totally inadequate if that is not going to be on the face of the Bill.

The clause deserves to be removed. I very much regret that it disrespects the role and responsibility of directly elected councillors and their officials. It has extreme overreach in trying to gag them and prevent them explaining their decisions, for which they are publicly accountable. I believe that contraventions of the ECHR are matters to be taken very seriously, so I want to hear from the Minister further explanation and further response to the recommendations of the Constitution Committee.

My Lords, Amendment 33 to remove Clause 4(1)(b), moved by the noble Baroness, Lady Chapman, and the amendment in the name of the noble Lord, Lord Collins, to remove Clause 4, undermine the aims of the Bill.

Before I address the amendments, I reiterate that the Government are committed to protecting freedom of speech, which is why the Bill’s provisions apply only to public authorities and not to individuals or companies in their private capacities. I made that clear in my response to the Constitution Committee report in March and set out why the clause is necessary to fulfil the 2019 manifesto commitment.

I also clarify to the noble Baroness that we are not creating any new criminal offences in the Bill for statements about boycotts or handbags or any other kinds of statements. Moreover, statements about one wanting to steal someone’s handbag would clearly not have an impact on community cohesion in the way that statements of intent to boycott may. Statements of intent to boycott can be threatening and intimidating, particularly for those within the Jewish community.

My Lords, we are not talking about a statement of intent to boycott; we are talking about a statement that you would have done something but you do not intend to do it. That is the point that we are trying to make.

I think that it is necessary to make these points within the framework of the Bill.

I will move on and explain Clause 4, which, in its entirety, is an instrumental part of the Bill. It prohibits public bodies from publishing statements indicating that they intend to engage in activity prohibited by the Bill. That includes statements indicating that the public body would have acted differently if the legislation had not been in place.

I will deal directly with some points that I feel are misconceptions. The clause will not affect the statements of individuals, unless they are speaking as or on behalf of a public authority. The noble Baroness, Lady Chapman, is not speaking for a public authority in her colourful example; I assure her that she would not be in breach of the ban if she were making a statement of intent to boycott. Even when an individual is speaking on behalf of a public authority, the ban applies only to the public authority itself and there is no personal liability for the individual. Thos includes councillors, to answer the question raised by the noble Lord, Lord Davies of Brixton. For that reason, I reiterate—

I am very sorry, but I must ask the Minister to address the question about Clause 1(7)(b). If she reads that clause, she will see that it could cover any individual who seeks to influence a decision-maker. That could include, in my interpretation, a journalist writing a campaign statement in a newspaper, asking whichever council it is to take action.

I will come on to decision-makers.

I reiterate that it is important that the Bill does not breach Article 10 of the ECHR on the right to freedom of speech, and I have already reiterated the Government’s support for free speech. The reason the Bill is compatible with the ECHR is that public authorities do not enjoy human rights, as the purpose of the convention is to protect individuals from undue interference by the state, of which public authorities form a part.

I gave a full reply to the committee in my letter of 15 March, and we have already added extra provisions to the Explanatory Notes, some quoted by the noble Lord, Lord Beith, to make it clear how the sorts of concerns expressed this evening may be mistaken. He provided an example where a local authority debated a motion to boycott that was ultimately not passed, and asked whether the public authority would be in breach of the ban if it explained that the reason it did not support the motion is that it would be illegal under the Bill. In this scenario, it is the individual councillors who said that this is the reason they did not support the motion in the vote. The public authority has not adopted the motion. Its statement merely summarises the individual councillors’ reasoning. It is therefore not an expression of the public authority’s intention to boycott. Even in the case where the councillor was speaking on behalf of that public authority, such a statement would be in breach of the Bill only if it clearly indicated that the public authority intended to engage in a boycott in the exercise of its public functions or would engage in such a boycott if that were lawful.

As I say, it is the leader of the council who is being questioned as to why the council did not, in the event, agree to a boycott, although there were speeches in the chamber and maybe some votes cast supporting a boycott. What is he able to say that does not fall foul of the legislation as currently drafted? If he says, “The reason we are not going ahead with this is that it is against the law, and this council does not do things that are against the law”, is that not in breach?

The principle is that the person seeking to influence would not be caught by the Bill. The provision is to deal with a situation in which a public authority boycotts because of pressure from someone else, rather than its own disapproval of a foreign state.

I apologise, but I think the Minister is trying to answer at the same time the points that I and the noble Lord, Lord Warner, made. His point was about the category of people referred to in Clause 1(7), I think. I am talking about a situation, directly following the example that I gave and she has used, in which the leader of the council seeks to explain why the council is not doing what at least some people were recorded as having said that it should do during the debate, saying, “No, we’re not going to do that because this council does not do things that are against the law”.

I will take the noble Lord’s example away. I have given him a clear statement and he makes a reasonable point. I think there is an answer to it, but I will not just make it up; I want to give him a clear answer on that. Perhaps I can move on and deal with one or two other concerns.

I am sorry to delay things yet further. We have had a lot of discussion about theoretical examples of what might happen. I tried to give your Lordships’ Committee a particular example of a case against the then Mayor of London. It was a notorious case and it took months in the courts to decide whether he was acting as a public authority or in his private capacity. Therefore, how can the Minister seem to think it so simple to decide when somebody is acting in a private capacity and when they are acting as a public authority, given that the one case that really got the public attention spent months in the courts before it was eventually determined that on that occasion he had been acting in a private capacity? I am sure that everybody can remember the case.

I am afraid that I am not familiar with that case, but I take the right reverend Prelate’s point. The way I have described this shows that in fact this is limited in intent; free speech is possible in a personal capacity. I will come on to say a little more about that and about decision-makers, because I know that we need to clear up those points and I am conscious of time.

The noble Baroness, Lady Chapman, highlighted that Ministers in the Scottish Government would be captured by this provision. As I have explained, as Ministers in the Scottish Government are public authorities for the purpose of human rights, they do not have ECHR protections in their public functions. It is clearly right that this provision should apply to Scottish Ministers to ensure that communities in Scotland are protected from these divisive statements, and foreign policy is a reserved matter. Additionally, Clause 1 applies only in relation to procurement and investment decisions in the exercise of public functions. Therefore, Clause 4 would not apply to statements made by Scottish Ministers about how they tend to act in their private lives.

Can we be absolutely crystal clear on this? The Government are arguing that a Minister in Scotland, the Mayor of Greater Manchester, Andy Burnham, or the First Ministers of Wales or Northern Ireland could not legally make a statement saying, on behalf of the public authorities they are elected to lead, that they do not intend to break the law because they do not break the law. Clause 4 would prevent them doing that.

I am not sure that is right. I will seek advice.

It is important.

It may be important, and therefore it is all the more important that the noble Baroness’s question is answered fully and accurately. I have made it clear in answer to the noble Lord, Lord Beith, that as only public authorities are subject to Clause 1, Clause 4 is strictly limited to the actions of public authorities and therefore not individuals associated with public authorities.

As chair of the Constitution Committee, I should say that the answer from the Government went on to say that declarations could be as harmful as the boycotts themselves, and that was deployed in defence. It is quite right to clarify the point made by the noble Lord, Lord Beith, on what constitutes a declaration that does or does not fall under the qualification in paragraph 6 of the Minister’s reply to the Constitution Committee. I do not seek to express a view; I am just saying that there is that undefined element.

I note the point that the noble Baroness has made. We did reply to the Constitution Committee, but I will reflect further on this point.

My noble friend Lady Noakes said that there had been some confusion due to the use of the term “person”, which I have already referred to. To respond to the point raised by the noble Lord, Lord Hendy, in the context of this clause, the legal term “person” refers only to a person subject to this Bill’s ban. In other words, it refers only to a public authority as defined in Section 6 of the Human Rights Act 1998. The legal term “person” does not have the same meaning as in normal English. This is standard legal drafting.

Additionally, for the purposes of this Bill, decision-makers are public authorities—as explained by my noble friend Lady Noakes and confirmed in Clause 2(1) of the Bill, which I have just referred to. Public authorities will delegate decision-making to individuals, but individuals’ decisions or statements are captured only when they are made on behalf of the public authority. This issue was also discussed in Committee in the other place. It was because we listened to the concerns raised on this point that we revised paragraphs 32 and 33 of the Explanatory Notes. Paragraph 32 states:

“As only public authorities are subject to clause 1, this clause is strictly limited to the actions of public authorities” and therefore not individuals associated with public authorities. I think that goes three-quarters of the way to answering the question asked by the noble Baroness, Lady Chapman, but I will follow up.

I hope that makes it clear that this Bill is not an assault or restriction on the principle of free speech. Rather, it aims to ensure that the UK speaks with one voice internationally. Public authorities should not be pursuing their own foreign policy agenda or publishing statements on foreign policy. It distracts from their core duties. Clause 4 will support those bodies to remain focused on that purpose. It is a core part of the Bill and meets the manifesto commitment to ban public bodies from imposing their own direct or indirect boycott, divestment or sanctions campaigns against countries and territories.

Briefly to address Amendment 33, and the point raised by the noble Baroness, Lady Chapman, I remind the Committee of just how divisive of community cohesion within the United Kingdom declarations of intent to boycott can be. That includes statements made by public authorities that indicate that they would intend to participate in boycotts and divestments if it were legal to do so. The right reverend Prelate the Bishop of Manchester, who I am very glad has joined our discussions, will have noted what I said about elected officials, including councillors, expressing a view which is not related to the narrow purpose of this Bill. He asked for an example of our concern. We saw a good example in Leicester, which my noble friend Lady Noakes referred to. In its resolution in 2014, Leicester City Council passed a motion targeting the activity of the Israeli state with a boycott

“insofar as legal considerations allow”.

The motion was widely condemned by Jewish groups and was extremely divisive. This demonstrates the need to ban statements of intent to boycott or divest which express—

My Lords, we need to be very careful about how we talk about social cohesion at present. As it happens, I spent some time last weekend in Saltaire, which is part of the Bradford local authority, talking with one of Yorkshire’s Christian leaders and one of Yorkshire’s Muslim leaders about how we maintain social cohesion and interfaith co-operation under the current circumstances. It is not easy. These are two people whom I like and trust, and they are very good friends. We have to recognise the impact of the ongoing war, and in particular the response of our younger generation—white and Christian, and south Asian and Muslim—in all their diversity. It is very delicate at present, and simply asserting that stopping debate is a way to maintain social cohesion is not the answer.

As the noble Lord knows, the Bill aims to improve the situation with social cohesion. I note what he said, but we have seen examples of councils, such as Islington, passing motions in opposition to the Bill alongside foreign policy statements about Israel and other countries. While this might not be a breach of the ban, it demonstrates a strong interest in public authorities engaging in BDS campaigns. It could demonstrate that the Bill is already having its intended effect of preventing public authorities making divisive statements.

The point is that, overall, Clause 4 supports the main aims of the Bill in ensuring that the UK speaks with one voice internationally and has one foreign policy agenda, and that public bodies do not introduce policies in that area that risk dividing communities at this difficult time. Accordingly, for this evening, I kindly ask the noble Baroness to withdraw her amendment.

My Lords, this has been a helpful debate, if somewhat frustrating at times. I do not think that it is good enough to be reminded of social cohesion as a way of trying to entice us into supporting this measure. We all want to work hard to improve social cohesion where there are issues, and I know that the Minister would accept that that is our intention too.

There are fundamental problems with this clause. The Minister herself has said that she is unable to answer some quite basic questions that we have asked, and not for the first time this evening—we have asked these questions before. We have used different examples to try to tease out the answers, but the principal question is the same: who will be subject to this measure and what might the effect of that be? We still do not know the answer to that.

With respect to the noble Baroness, I have answered the large majority of the questions, but I said that I would take away the underlying question that she is enunciating.

I acknowledge that the Minister has done her best to answer the position this evening. But I remember a meeting that we had before Second Reading and asking her about this example of a council leader, which we heard again tonight put very well by the noble Lord, Lord Beith—I think the Explanatory Notes had been amended at that point. We still do not know the answer to that. The officials who were with her said that they would take it away and come back with an answer, but there has been no answer tonight. The Minister will understand our frustration a little.

The noble Baroness, Lady Noakes—what a soldier. She shows up and does this for the Government, night after night, but, my goodness, how unpersuasive she was—she is normally very persuasive and I can normally see where she is coming from. She is doing sterling work, I am sure, but she has not provided us with the answers that we need. Saying that this is about social cohesion will not wash.

Should the Bill pass, should this clause be included, social cohesion could be damaged. What social cohesion needs is communication, open expression of where people are coming from, and relationships of trust to be built up. You cannot build relationships of trust among community leaders, whether they are councillors, leaders of combined authorities or Ministers in devolved Administrations, if they feel, and are said to feel, unable to express their true positions. That is not a situation we should be content to tolerate in this country.

It would be helpful if the Minister could commit to writing to noble Lords about the issues concerning councillors; but they apply to other elected officials too, as we have discussed. If we could have that letter before Report, that would be incredibly helpful.

I beg leave to withdraw my amendment.

Amendment 33 withdrawn.

Clause 4 agreed.

House resumed.

House adjourned at 10.26 pm.