Preferential treatment of states can be a key part of foreign policy - Andrew Stevenson

Two controversial Bills are meandering through the UK Parliament, both giving preferential treatment to specific foreign states albeit for completely different reasons.

The Safety of Rwanda (Asylum and Immigration) Bill as first introduced requires that “Every decision-maker must conclusively treat the Republic of Rwanda as a safe country.” Thirty years ago it was anything but. The problem is that UK primary legislation which makes special provisions for particular foreign countries is at risk of being left behind inflexibly if changes in policy, status or government occur in those countries. Presumably if this Bill were to be enacted and an army coup then occurred in Kigali, our Parliament might have to rush through another Act to repeal or amend this one.

The Economic Activity of Public Bodies (Overseas Matters) Bill is remarkable too, insofar as it gives a uniquely privileged status to Israel and territory which it occupies.

As it stands, Section 17 of the Local Government Act 1988 requires local authorities to disregard non-commercial considerations in awarding public supply or works contracts. This includes taking into account the country or territory of origin of the supplier of the goods or services. The section is clearly designed to curtain the ability of councils from in effect adopting a foreign policy different from that of the national government. The provision was considered by the Court of Appeal in 2018, in a challenge to Leicestershire Council’s resolution to boycott products originating in Israeli settlements in the West Bank “insofar as legal considerations allow” (i.e. not at all).

Section 1 of the Economic Activity Bill, “Disapproval of foreign state conduct prohibited” precludes public bodies and authorities from factoring into account their views on whether countries behave ethically. To that extent the Bill resembles the 1998 Act, but there are several significant differences. Section 4 would prevent council resolutions of the type mentioned. More importantly, a section headed “Exceptions” permits secondary legislation to exempt states from the protection of the Bill. These exempted countries would presumably be those of which HM Government were to take a dim view.

Curiously, however, there are three exceptions to the “Exceptions” namely Israel, the Occupied Palestinian Territories and the Occupied Golan Heights. The Bill permits the exemption of Russia by means of regulations, but to exempt Israel would require an amendment of the 2024 Act itself by further primary legislation (e.g. by repealing Section 3(7), the “exception to exception” subsection).

This preferential treatment conferred upon the Golan Heights is peculiar. This region, around the same size as Caithness, is regarded under international law as being part of Syria. A UK Government minister could by secondary legislation remove Section 1 protection from that country other than the bit occupied by Israel. A Syrian merchant in Golan would be better protected than one 40 miles away in Damascus although the UK regards them as both residing in the same state.

In July 2023 the Scottish Government recommended to the Holyrood Parliament that it should oppose this Economic Activity legislation as impinging upon the powers of the Scottish Ministers. An interesting dispute may lie ahead.

Andrew Stevenson is Secretary, Scottish Law Agents Society