The British government formally published Wednesday new guidance ostensibly intended to “stop inappropriate procurement boycotts by public authorities.”
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While the Conservatives have presented the document as a way of protecting Israel from the growing Boycott, Divestment, and Sanctions (BDS) campaign, activists say that the measures actually fall short of a ‘ban’ on boycotts.
According to the Cabinet Office press release, the guidance “makes clear that procurement boycotts by public authorities are inappropriate, outside where formal legal sanctions, embargoes and restrictions have been put in place by the government.”
The guidance impacts “all contracting authorities”, including “central government, executive agencies, non-departmental public bodies, the wider public sector, local authorities and NHS bodies.” A breach of the regulations could result in “severe penalties.”
The press release cites the World Trade Organisation (WTO) Government Procurement Agreement, which requires signatory states “to treat suppliers equally”, adding: “any discrimination against Israeli suppliers involving procurements would therefore be in breach of the Agreement.”
The full ‘Procurement Policy Note’ states its purpose as setting out “contracting authorities’ international obligations when letting public contracts.” These are existing obligations.
According to the government, the guidance “complements existing government guidance about trading or investing overseas (including with Israel), where we advise UK businesses to consider any potential legal and economic risks of doing so.”
This is a reference to a warning first published in 2013, and still in place, that “financial transactions, investments, purchases, procurements as well as other economic activities (including in services like tourism) in Israeli settlements or benefiting Israeli settlements, entail legal and economic risks.”
Responding to the publication of the guidance, the Palestinian BDS National Committee (BNC) said that “the new documents amount to an attempt to intimidate councils and universities but do not appear to introduce new legal obligations on public bodies.”
“Perhaps the public outrage over the governments attack on local democracy hit a nerve in Westminster because the document published today does not 'ban boycotts' in the way that the government announced it wanted to,” said Riya Hassan, the BNC’s Europe Campaigns Officer.
“We’re seeking further legal advice but it appears that it remains perfectly legal for councils and universities to take ethical stances that reflect the views of their communities and exclude companies that violate human rights or commit other forms of gross misconduct from tender exercises.”
Hassan added: “The tone and language in the documents published by the government is intended as a gift to Israel and is clearly designed to intimidate councils into falsely thinking that they are no longer allowed to exclude companies that violate human rights from tender exercises, making this a particularly underhand attack on local democracy.”
According to activists, campaigns urging universities and councils not to award contracts to those complicit in Israeli human rights abuses are based on the participation of the company in question in violations of international law, not because of its presence or connections to Israel.
The existing Public Contracts Regulations 2015, based on EU law, allows for companies to be excluded from tender exercises if they have committed “gross misconduct”, a provision that does not appear to have been changed.
The Conservative government is, however, also pursuing restrictions regarding public sector pension funds, which, the BNC stated “is expected to go much further in limiting powers of public bodies.”
More than 15,000 people have written to the government urging it not to give central government veto power over local council investment decisions as part of a campaign organised by a coalition of climate, anti-arms trade and Palestine campaigners.