UK anti-boycott bill 'will stifle free speech', Labour legal advice says

UK anti-boycott bill 'will stifle free speech', Labour legal advice says
5 min read
03 July, 2023
Ryvka Barnard, deputy director of the Palestine Solidarity Campaign, called the UK government's anti-boycott bill 'repressive'.
UK Communities Secretary Michael Gove's anti-boycott bill is formally called the Economic Activity of Public Bodies (Overseas Matters) Bill [Leon Neal/Getty-archive]

Free speech could be under threat if the UK government's controversial anti-boycott bill becomes law, according to a legal opinion provided to the opposition Labour Party.

The advice from Matrix Chambers lawyer Richard Hermer KC was published on Monday ahead of the bill's second reading in the House of Commons later in the day.

Like legal advice provided by another lawyer to Amnesty International, obtained by The New Arab on Sunday, Hermer raised the issue of freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).

"This very poorly drafted bill is likely to have a detrimental impact on the United Kingdom's ability to protect and promote human rights overseas, is in certain respects inconsistent with our obligations under international law, will stifle free speech at home (in a manner incompatible with Article 10 of the ECHR), will take powers long exercised by local authorities into the hands of the Secretary of State and will likely lead to an array of illogical outcomes," Hermer said.

Ryvka Barnard, deputy director of the Palestine Solidarity Campaign, called the proposed legislation "repressive".

"It is no surprise that legal experts have confirmed our position that the government's anti-boycott bill is incompatible with international law and conventions on human rights, including but not limited to issues around freedom of expression," she told The New Arab.

"The government and opposition will have to take this legal advice seriously as they consider this outrageous bill."

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'Extraordinary gagging clause'

The anti-boycott bill, formally called the Economic Activity of Public Bodies (Overseas Matters) Bill, is aimed at stopping public bodies, such as councils, from carrying out boycott, divestment and sanctions (BDS) campaigns against Israel.

It would also block public bodies from implementing their own actions against other countries and territories, preventing them from making procurement or investment decisions "influenced by political or moral disapproval of foreign state conduct".

Clause 4 of the bill would stop a decision-maker from publishing a statement saying they intend to make such a decision our would intend to do so were this allowed by law.

"This is an extraordinary gagging clause on democratically elected politicians and public bodies," Hermer said.

"The clause if enacted is highly likely to be deemed incompatible by the courts with Article 10 of the ECHR, in particular (i) the relevant public official's right of freedom of expression and (ii) the right of the public to receive information on matters of public interest/importance."

Amnesty International's advice

The legal advice received by Amnesty also addressed Article 10 of the ECHR. The opinion was provided by Doughty Street Chambers lawyer Stephen Cragg KC.

"Assuming the bill does apply to individuals, it seems to me there is a strong case to say that it is incompatible with the ECHR and/or that application of its terms, especially [clause] 4, would have that effect in individual cases," he said.

The Human Rights Act 1998, which brought the ECHR into UK law, protects individuals' rights.

Cragg quoted Conservative Communities Secretary Michael Gove as saying public authorities would be affected but not "elected officials acting individually".

However, Cragg said: "If that is the intention then it needs to be spelt out more clearly in the bill."

But the legal advice he provided Amnesty suggested doing so would not be enough to resolve all freedom of speech-related concerns.

"Even if Article 10 ECHR does not apply (because the decision-maker will always be a public authority), it is clear that the bill, and in particular clause 4, offends against the spirit of free speech," Cragg said.

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Gove: Bill 'compatible' with ECHR rights

However, a statement previously made by Communities Secretary Gove as part of the legislative process made clear he believed his bill complies with the ECHR.

"In my view the provisions of the Economic Activity of Public Bodies (Overseas Matters) Bill are compatible with the Convention [ECHR] rights," he said.

A spokesperson for his Department for Levelling Up, Housing and Communities reiterated to The New Arab on Sunday that the government's bill "is compatible" with the ECHR.

Asked about Amnesty's legal advice, Layla Moran, the opposition Liberal Democrats' foreign affairs spokesperson, criticised the anti-boycott bill.

"Not only is this divisive political posturing that undermines our democratic principles, perhaps unsurprisingly it also breaks international law," she said.

"If the government had any sense, they'd withdraw this legislation immediately."

An infographic detailing the stages the UK's anti-boycott bill will need to go through to become law

'Wrong at every conceivable level'

If the bill passes its second reading, there will still be a way to go before it becomes law.

But civil society organisations have already expressed concern about its potential impact.

Chris Doyle, director of the Council for Arab-British Understanding, called the anti-boycott bill "wrong at every conceivable level".

"It helps human rights-abusing regimes. It treats local councils with contempt. It smashes freedom of expression," he said.

"To top it all it would as [Amnesty's] legal advice highlights be in breach of the UK's own legal obligations."

Human Rights Watch's UK director Yasmine Ahmed called for MPs to oppose the bill at its second reading on Monday or be "on the wrong side of history".

"This bill joins a long list of measures this government has introduced that undermine fundamental democratic rights," she said.

"A responsible government should be standing up against human rights abuses, not punishing government bodies seeking to end their involvement in such abuses.

"This is yet another example of the British government seeking to punish those who disagree with it and undermining human rights.

"From standing up to apartheid South Africa to shining a spotlight on [dictator Augusto] Pinochet's regime in Chile, boycotts have allowed British workers, companies and organisations to take a stand against oppression and brought the media's scrutiny to bear."

Danielle Bett, communications director at British Jewish organisation Yachad, said 14 leading Israeli rights groups had publicly opposed the UK's anti-boycott bill.

"We stand with them and the [UK's] Union of Jewish Students as well as major Jewish youth movements who oppose the bill," she added.

"At a time when human rights and free speech are under threat in Israel, this should not be the issue of the day."

The New Arab contacted the UK's Department for Levelling Up, Housing and Communities for comment but did not immediately receive a response.