A law against Boycotting Israel
(The map shows the Golan Heights, taken from Syria in 1967).
Boycott, Divestment and Sanctions (BDS) against Israel or the Occupied Palestinian Territories are to be made illegal by a new bill going through Parliament, led by Michael Gove.
According to the proposed law, public bodies are forbidden to disapprove of any country, unless the Secretary of State has disapproved first and he will not be allowed to disapprove in the case of Israel, the Occupied Territories and the Golan Heights.
Section 1 : “Disapproval of foreign state conduct prohibited”
But:
“The Secretary of State or the Minister for the Cabinet Office may, by regulations, specify a country or territory to which Section 1 does not apply” [eg Russia] and, the Secretary of state can never specify Israel and the Occupied Territories or Golan Heights as ‘a country or territory to which Section 1 does not apply”:
“Regulations under subsection (5) may not specify, and regulations under subsection (2) may not result in a description of decision or consideration relating specifically or mainly to—
1. (a) Israel,
2. (b) the Occupied Palestinian Territories, or
3. (c) the Occupied Golan Heights.”
The Economic Activity of Public Bodies (Overseas Matters) Bill –
This Bill is at the Report stage, it will have a third reading and then go to the House of Lords. On 3 July 2023, 268 MPs voted to continue with the bill, 70 voted against. We reproduce below some of the arguments.
The bill intends to ban public bodies such as Councils or Universities boycotting Israeli goods, but its stated aim is to prevent public bodies from making their own decisions regarding procurement and investments according to their moral principles at all: It is a bill to “Make provision to prevent public bodies from being influenced by political or moral disapproval of foreign states when taking certain economic decisions, subject to certain exceptions; and for connected purposes.” Section 1 is entitled: Disapproval of foreign state conduct prohibited
There is opposition to the bill, but it is not on the ground that an apartheid state should be boycotted. It is on the grounds that the bill goes beyond banning the boycott of goods from Israel by also banning the boycott of goods from the illegal Occupied Territories, and so the bill is illegal. Further, the bill penalises not just instituting a boycott, but also expressing the opinion that such a boycott should take place, were it legal to do so. The bill also prevents any boycotts at all, unless they coincide with the government’s foreign policy: “The Secretary of State or the Minister for the Cabinet Office may, by regulations, specify a country or territory to which Section 1 does not apply]”. The boycotting of South African goods would have been illegal under this proposed law.
Several MPs express the fear that singling out Israel as an exception could increase feelings of hostility towards Jews.
19 June 2023
“From:
Department for Levelling Up, Housing and Communities and The Rt Hon Michael Gove MP
Published
19 June 2023
“Today’s Bill will stop businesses and organisations – including those affiliated with Israel – being targeted through ongoing boycotts by public bodies – leading to community tensions and, in the case of Israel, a rise in antisemitism.”
[But it’s OK to boycott organisations connected with Russia, because that is in line with UK foreign policy]:
“The UK has a well-established sanctions policy which remains in place. Organisations with links to Russia and Belarus will still be prevented from benefiting from taxpayers’ money with councils able to terminate existing contracts with those linked to Putin’s barbaric war machine.”
The government added:
“The Government remains strongly committed to the UK’s long and proud tradition of free speech. The ban will not apply to individuals or private organisations, where they are not carrying out public functions. It will also not change the UK’s approach to the Middle East Peace Process, or our position on settlements, which are illegal under international law.”
The debate before the second reading.
The Conservative Crispin Blunt opposed the bill, making important points:
“As the effect of Israeli policy since 1967 has been to build out of existence the possibility of a two-state solution by settling 700,000 Jews who have arrived in the state of Israel, with their right to go there under Israeli law, it is now no longer possible for there to be a two-state solution, so what is British policy to be?”
Joanna Cherry
… I also found the Secretary of State’s suggestion that those of us who oppose the Bill are condoning antisemitism, or are in fact antisemitic, to be disgraceful. Has she, like me, seen a public letter to the Secretary of State from a number of British-based Jewish academic experts in the fields of Jewish studies, the study of antisemitism and Israel studies, including my dear friend Professor Francesca Klug OBE, visiting professor of human rights at the London School of Economics? They have expressed the view that this legislation is damaging and wrong-headed and should be withdrawn. Will the hon. Lady confirm that that is a letter from leading British Jewish academics?
Dr Whitford
The hon. Lady talks about when she has visited Israel or Palestine, as I have done regularly with the breast cancer projects I am involved with in Gaza and the west bank. The thing is that the settlements are illegal under international law, and they have been condemned by the Government in the past. Obviously, companies, pension funds, councils and devolved Governments who try to act ethically and do not wish to purchase settlement goods, which are illegal, would be floored by that clause. How does that match with current UK policy?
Alicia Kearns Con
[her main point is: we would support a boycott of products from the occupied territories, because we consider them to be illegal or annexed, [but the bill puts together (a) Israel, (b) the Occupied Palestinian Territories, or (c) the Occupied Golan Heights. As places that cannot be the object of an economic boycott.]
This evening’s debate should focus on the specifics of the Bill in front of us. The right of Israel to exist and defend itself is not up for debate. The right of Palestine to exist and defend itself is also not up for debate. The UK supports a two-state solution, and I believe that everyone in the Chamber would also be of that mind. I wish to draw the attention of hon. Members to the implications of the current drafting of the Bill. It has implications on our historic commitments and responsibilities and ability to play the role of honest arbiter within the region, and risks undermining our commitments as a United Nations Security Council member.
My concerns about the Bill fall within four areas: first, foreign policy implications; secondly, exceptionalism in legislation; thirdly, protection of freedom of speech; and finally, the legality of what we are being asked to support. Let me begin with the implications of the Bill on foreign policy and international obligations. My first concern, as was raised in earlier interventions, is the conflation of Israel and the Occupied Palestinian Territories. Conflating East Jerusalem, the west bank and the Golan Heights breaks with our position, because the UK recognises the Golan Heights as annexed and the west bank and East Jerusalem as Occupied Palestinian Territories. That is a departure from our foreign policy.
Not only does the Bill break with our foreign policy, but clause 3(7) puts the UK in breach of our commitments under UN Security Council resolution 2334 (2016). That is not just an international commitment; it is one that we drafted back in 2016. It states that in their “relevant dealings”, states must distinguish
“between the territory of the State of Israel and the territories occupied since 1967.”
The Bill does not distinguish between our treatment of Israel and the OPTs.
Why does breaching UNSCR 2334 matter? Because we rely on the rules based system to protect ourselves and to protect our allies. How many of us have talked about the rule of law in this Chamber, when it comes to Ukraine and Russia, Serbia, the Balkans, and so many other parts of this world? The impact of the Bill would be significant. It will undermine our position as a respectable and reliable multilateral partner, committed to upholding UN Security Council resolutions as we should as a permanent member. It risks our losing the support of Arab states on shared issues, and their vote at the UN. We all know that western states are spending a significant amount of time trying to shore up the support of so-called non-aligned countries. I have spent most of the last few days on the phone to Arab ambassadors—the same Arab ambassadors who recognise Israel and want to normalise relations with Israel. Finally, we risk giving China, Iran, Russia, Serbia and others an easy propaganda win, because they will use this against us when we talk about the annexation of territories around the world.
I am concerned that the UN Special Coordinator would have no choice but to explicitly name the UK in their next report on how member states are adhering to compliance with UNSCR 2334. I also worry that it sends the wrong message about the achievement of sovereignty through violence. It means that if Israel breaches international law in the occupied territories, public bodies cannot express their ethical objection to those crimes. I worry that the Bill will leave the international community questioning whether Israeli settlements in the OPTs and the Golan Heights are still regarded as illegal by the UK Government.
[…]
I have received significant representations from human rights organisations within Israel, and also from within our Jewish communities in the UK, who feel that this is not only the worst possible timing for the Bill, but that they themselves do not support it.
If we are now to have questioned our position on the OPTs legally, how is the Bill compatible with that, and with the fact that the Conservative Government recognise that settlements built on occupied Palestinian land since 1967 are illegal? We must ensure that all legislation makes a clear distinction between Israel where we support no boycott, and the illegal settlements on occupied land where a boycott would be consistent with our position on UNSCR 2334. Why are we undermining our international position by breaching our position on a two-state solution, and changing the UK’s recognition of certain territories as occupied, when the Bill can achieve the same end simply by removing clause 3(7)? The House will hear that point reiterated throughout the evening by many of my colleagues.
I was also concerned that the Secretary of State appeared not to be aware of the concerns emanating from the Foreign Office and from diplomatic posts. I ask him to clarify that when winding up this evening. I think the wording was that “no such advice had been received”. Has the Foreign Office truly not given any advice that it had concerns that the Bill breached our UN Security Council resolutions?
Dr Whitford adds:
Is it not an issue to use the term “boycotting” with regard to the settlements? They are illegal under international law, so no public body should be investing in, or making profit from, them.
Alice Kearns also made the point about freedom of expression:
“a local council leader, university vice-chancellor or even the chief executive of a private company delivering public services” [saying or writing that they would like to boycott products (say from the OPTs) break the law and can be fined, even if no action was actually taken.] “ to now stop elected individuals from expressing moral disapproval or even to consider or vocalise ethical investment decisions is wrong.”
“Our obligations under the UN guiding principles on business and human rights essentially mean that this legislation would see the private sector having greater adherence to our human rights than the public sector. I encourage the Secretary of State to consider potential conflict between the UK Government and the UN stating that settlements are illegal while then penalising local councils in the UK for taking ethical procurement decisions to address that illegality.”
Monday 3 July 2023
Updated 6 October 2023
Beth Winter
This Bill is the latest example of the shrinking space for freedom of expression in the UK, following the passage of the Elections Act 2022, the Police, Crime, Sentencing and Courts Act 2022 and the Public Order Act 2023, and the [continued progress of] the Strikes (Minimum Service Levels) Bill.
For the first time a piece of British legislation will require Israel and the territories it illegally occupies to be treated in the same way, departing from decades of international consensus on the illegality of settlements.
Three decades ago, Margaret Thatcher said that the ANC was a “typical terrorist organisation”, adding
“Anyone who thinks it is going to run the government in South Africa is living in cloud-cuckoo land”.
History proved her wrong on that, but that history was shaped by the determined efforts of people worldwide, including millions in this country and many local governments, to boycott South Africa. The lesson is clear: Governments are not always right; Governments do not always make moral decisions; Governments do not always act in line with the wishes of the population, but through the democratic process, millions of people can effect change. This Bill ignores that lesson. It shuts down the freedom of people to exercise a key democratic right. It is just another example of this Government’s anti-democratic crackdown, with restrictions on the right to vote, the right to protest and the right to strike.
Labour’s reasoned amendment, which declines to give the Bill a Second Reading and which I will be supporting, makes the case clearly about the many deep flaws in the Bill, as did the shadow Secretary of State in her response. In summary, the Bill is a huge attack on the concept of ethical investment and procurement by preventing public bodies from being influenced by “political or moral disapproval” of the actions of any foreign state. The Government claim that boycott and divestment will still be possible, but just not where it
“relates specifically or mainly to a particular foreign territory”.
That simply does not wash.
Almost all cases of companies engaging in human, labour or environmental abuses have a territorial element. If we are talking about divesting in companies that cut down the rainforest, for example, that activity will obviously take place in areas with rainforests, and certain countries would be targeted by campaigns. This Bill even bans public bodies from saying they would support such boycotts were it legal to do so. It is a gagging Bill that breaches freedom of speech and would prevent a local councillor in hustings debates or other public forums from giving their political view.
This Bill also has chilling elements in how it will be enforced, including potentially huge fines and far-reaching information compliance notices. The aim is clear: to put so much fear into public bodies of ending up in court that they do not just act within the law, but go beyond it in an effort to reduce that risk. As legal advice provided to the Labour party makes clear, this Bill would be likely to place the UK
“in breach of international law obligations”
and
“effectively equates the Occupied Palestinian Territories 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.”
I am afraid that I do not have any faith in the exemptions listed in the Bill at schedule 3. Just as apartheid was legal in South Africa, much environmental destruction takes place entirely legally. The very fact that something is illegal is often the rationale for a boycott and divestments campaign in the first place. Many people in the discussion today and around this Bill have mentioned boycotts—not just those relating to illegal settlements in the Occupied Palestinian Territories, where we have seen terrible scenes today in Jenin, but arms boycotts against Saudi Arabia over its war crimes in Yemen, boycotts in Colombia over its past treatment of trade unionists, and commercial boycotts of goods relating to the treatment of the Uyghurs in China or the Rohingya in Myanmar. It is not for us to decide which countries people are allowed to boycott—that is a huge curtailment of basic freedom. We need to maintain the democratic rights of people to challenge Government policy through boycotts and divestment, if that is their wish.
To conclude, the Bill has faced widespread civil society opposition, including from the Quakers and the Methodists, the Muslim Association of Britain, Friends of the Earth, the Union of Jewish Students, the TUC, Unite the union, Unison and the directors of 14 Israeli civil society and human rights organisations, as well as Human Rights Watch, Liberty and Amnesty, whose own legal ruling suggests that the Bill would be illegal. Not all those groups support boycotts, but they do support the right for people to boycott. That is what we are voting on today. We cannot allow the Government to scrap this cherished democratic right.
Labour Affairs 