My Lords, Amendment No. 1 seeks to revert to the status quo ante in terms of the Commonwealth Secretariat Act 1966 and, thus, to leave the situation as it currently stands. Without going over the many concerns raised at Second Reading and in Committee, I will distil concerns to one or two issues only. These relate to human rights issues and access to justice relating to staff of the Commonwealth Secretariat.
The Joint Committee on Human Rights has considered the Bill. I am a member of the JCHR. I should like to put on record that I did not participate in the committee's discussion as I feared that there might be a conflict of interest as I had formerly been a member of the Commonwealth Secretariat Staff Association. I therefore had no part to play in the JCHR scrutiny function.
Nevertheless, the JCHR report makes two important points, which have not been satisfactorily dealt with in the response of the Foreign and Commonwealth Office. Paragraph 3.10 of the interim report states:
"A number of immunities conferred do not appear to be required by international legal obligations, however. This appears to be the case in relation to the Commonwealth Secretariat and the Commonwealth Secretariat Arbitral Tribunal. Although the Explanatory Notes observe that conferring more extensive immunities on these bodies and persons connected with them would 'bring the Secretariat into line with a number of other international organisations based in the UK', it is not clear that there is any international legal obligation in this regard, or in regard to the immunity from suit of CSAT and its members".
The JCHR went on to ask two questions of the Foreign and Commonwealth Office. The first question that it put to the Minister concerned whether each of the immunities conferred by the Bill was required by international law. Bill Rammell, the Parliamentary Under-Secretary of State, in his response to the committee, tells us that,
"The UK accepts, in principle, that the Commonwealth Secretariat's jurisdictional immunity should be on the same level as that enjoyed by other organisations in the UK".
I do not believe that a general belief, in principle, is adequate to protect human rights in every particular case.
We are told repeatedly by the Government that good governance does not follow an approach where one size fits all. If one were to follow the logic of that approach, it would be obvious that different measures must be taken to deal with different problems.
The problem here is that an employee of the Commonwealth Secretariat contested a suit in the UK High Court, which held that United Kingdom courts did, indeed, have jurisdiction. So one court case has led to the Government seeking to extend a blanket immunity on the Commonwealth Secretariat.
The question put by the JCHR was whether those immunities were required, not whether they were preferable in principle. I do not believe that that question has been answered adequately in the case of the Commonwealth Secretariat.
The second question posed by the JCHR was:
"What alternative avenues of redress are available to satisfy Article 6 rights of effective access to court in respect of each of the organisations dealt with in the Bill, and how do these alternative mechanisms ensure that the very essence of the right of access to court is not impaired?".
That question goes to the very heart of the matter as regards human rights. Article 6 rights cover the right to a fair trial. It states that,
"everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
As the Government point out, it is correct that in Waite and Kennedy v Germany, the European Court of Human Rights held that the relevant German courts were indeed correct to grant immunity to the European Space Agency. But in making that judgment, the European Court noted two important caveats where such immunity applies.
It recalled that the convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective. That, it found, to be particularly true for the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial.
Secondly, for the court, a material factor in determining whether granting ESA immunity from German jurisdiction is permissible under the convention is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the convention.
In this landmark ruling, the test was proportionality and adequate alternative remedy. Both these tests would come under threat in the particular case of the Commonwealth Secretariat and CSAT if Clause 1 is in fact omitted.
It is important to look at the rights and protection available to CSAT applicants within the existing dispute resolution mechanism; that is, CSAT. Are there sufficient safeguards under the CSAT process? For example, under the existing CSAT system no protection is available in the event that a decision of CSAT gives rise to a question of error of law. The issues of independence and impartiality are critical to the operation of CSAT, and it is viewed that the removal of the limited but fundamental protection which is currently available to litigants—in other words, to members of staff in the secretariat—through extremely limited access to UK courts would appear to be reasonable and proportionate. Doing away with those rights to access UK courts in very stringent circumstances would, I argue, be disproportionate and would have a serious impact on rights of appeal by staff.
The granting of full immunities to the Commonwealth Secretariat would therefore have serious implications for anyone who enters into a written contract with the organisation. The tribunal, composed as it may be of senior judges, should not become the sole arbiter of justice without any other remedy available if Article 6 rights are to be practical and effective, in line with the court's ruling.
Finally, I shall deal with the impact of the Bill. It will affect not only UK nationals, who have become the subject of several questions as regards numbers; that is, how many are employed. The number of UK nationals is important, but it is the diminution of rights that will affect not only UK nationals, but also staff from a further 52 Commonwealth countries who should all be entitled to the protection of their human rights. I beg to move.
My Lords, this amendment would remove from the Bill the proposed extension of immunity to be conferred on the Commonwealth Secretariat.
At the moment, under the Commonwealth Secretariat Act 1966, the Commonwealth Secretariat has immunity from the jurisdiction of the UK courts subject to three specific exceptions: first, cases in which the immunity is waived by the Secretary-General; secondly, cases concerning motor accidents or motor traffic offences; and, thirdly—addressing the point we are talking about—where arbitration proceedings are taken in respect of a written contract with the secretariat.
The last exception concerning arbitration proceedings has been interpreted by the courts in the UK as allowing our courts to exercise supervisory jurisdiction over the arbitration proceedings of the Commonwealth Secretariat Arbitral Tribunal (CSAT). The purpose of Clause 1(1)(b) is to remove this particular exception to immunity in order to bring the secretariat's immunity provisions in line with those enjoyed by many other international organisations based in the United Kingdom.
This new and extended immunity will not, however, apply to written contracts entered into by or on behalf of the secretariat before Clause 1 enters into force. For these contracts, the courts will continue to have supervisory jurisdiction.
The effect of the proposed amendment would be that the immunity currently enjoyed by the Commonwealth Secretariat could not be extended to bring it into line with that enjoyed by other international organisations based in the UK. Examples of other international organisations which already enjoy the immunity that we are seeking to extend to the Commonwealth Secretariat are the International Maritime Organisation, the International Seabed Authority, the Organisation for the Prohibition of Chemical Weapons and the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organisation.
The secretariat is the primary inter-governmental organisation of the Commonwealth. It facilitates consultations and co-operation between Commonwealth members and provides policy advice and technical assistance aimed at promoting the well-being and development of member countries. It is important that the UK does not treat the Commonwealth Secretariat unfavourably by conferring more limited immunity than that conferred on other international organisations. The Bill is doing nothing more than bringing the secretariat's immunity from jurisdiction into line with the treatment accorded to a number of international organisations based in the UK and abroad.
The noble Baroness, Lady Falkner, asked whether the revised agreed memorandum of the Commonwealth Secretariat imposes international legal obligations to confer privileges and immunities. The UK Government consider themselves bound to implement the revised agreed memorandum which has been agreed between the Commonwealth governments and evidences a commitment by the United Kingdom that the Commonwealth Secretariat should be granted the privileges and immunities set out therein. We have always acted on this basis. To change our practice could be very damaging to our relations with Commonwealth governments.
The noble Baroness also raised her concerns about human rights issues. She referred to correspondence between the Joint Committee and the Minister. She spoke of concerns to do with an adequate alternative remedy to CSAT applicants. I would say in reply that the important point is that the statute of CSAT already makes provision for a fair and independent procedure which is consistent with fundamental human rights. Article 6.2 of the statute reads:
"The rules of the tribunal shall ensure that applicants are dealt with in a manner that is independent, impartial and consistent with the Commonwealth Harare principles relating to fundamental human rights and the independence of the judiciary".
I hope that that reassures the noble Baroness that human rights are very much at the forefront of the changes we are proposing to make.
My Lords, I thank the Minister for that reply. I would be more reassured if the independence and impartiality of the tribunal were guaranteed more rigorously by access to justice rather than by the Harare principles which, after all, are political principles and thus have no bearing in law.
However, I am somewhat reassured by what the Minister has said. I beg leave to withdraw the amendment.
My Lords, first, I should like to thank the noble Baroness, Lady Crawley, the noble Lord, Lord Triesman, and the Bill team for the detailed letters that I have received in the run-up to the Report stage.
I make no apology for tabling this amendment a second time. The noble Baroness, Lady Crawley, assured me that the,
"Commonwealth Secretariat has not indicated that it is considering setting up any successor bodies to CSAT"—[Official Report, 11/1/05; col. GC10.]
However, I am still not happy with the possible situation that may arise if and when such a decision is taken.
This amendment would effectively remove the ability of the Secretary of State to transfer the immunities and privileges that the Bill awards to the Commonwealth Secretariat Arbitral Tribunal to a successor organisation using a statutory instrument to alter the original 1966 Act. My concern is that a successor could be one with quite a different emphasis on what it does, albeit that it may include arbitral tribunal duties. Although Parliament would have the opportunity to discuss the potential successor by affirmative order, it would be denied the opportunity to amend any provisions for the new body unless it threw out the order altogether—something that we in this House rarely do.
The Minister argued in Committee that it was necessary to be able to confer the immunities and privileges in a speedy manner should a successor be established, suggesting that a failure to do so may act against our commitments under the agreed memorandum. First, can the Minister explain the time span she envisages as "speedy"? One of the first questions I asked at the start of the Bill was why it had taken so long to bring it about when it referred to international agreements signed up to five years ago. As the Minister implied, we have thus been contravening these agreements—or at least parts of them—until now. I am sure that similar leeway would be allowed should a problem of timetabling a Bill arise to award any immunities and privileges to a successor body.
Secondly, if there were to be a successor body, I am sure that it would take time to discuss, set up and implement, during which the government of the day could timetable primary legislation to award the privileges and immunities agreed while allowing Parliament to scrutinise and amend any new provisions for the new body. This would not break our commitments under the memorandum; nor would we have to ask the Commonwealth governments to change the agreed memorandum as the noble Baroness suggested. In that way we would have a check and balance on potential mission creep of a body which is awarded privileges and immunities. This is an important question regarding our right and powers to scrutinise such changes. I beg to move.
My Lords, the result of the amendment would be to remove from the Bill the enabling provision to allow for the same immunity to be conferred on the members of any successor body to the Commonwealth Secretariat Arbitral Tribunal, should one be established in the future.
I am afraid that I am going to disappoint the noble Baroness by reiterating the arguments that I made at the Grand Committee stage of the Bill, when I said that the Commonwealth Secretariat has not indicated that it is considering setting-up any successor bodies to CSAT. However, the Government are of the view that it is important to include the possibility of conferring privileges and immunities on the president and members of any successor body because the agreed memorandum establishing the Commonwealth Secretariat and agreed, as the noble Baroness knows, at the Commonwealth Heads of Government Meeting in 1965, and revised in 2002, specifically contemplates the possibility of a successor body. So we have to be prepared.
It is important that the UK has the power to confer privileges and immunities speedily on any successor body should one ever be established. Failure to make provision for such an eventuality might one day result in the UK acting in a manner contrary to its commitments in the agreed memorandum. The most practical way to avoid this is to provide for immunities and privileges to be conferred on any successor body via secondary legislation. The Bill therefore includes an enabling provision for an affirmative order to be made by the Secretary of State.
As noble Lords will know, they will have an opportunity to consider and debate any such change proposed in the future because such an order, as the noble Baroness said, will have to be approved by resolution of each House. If we were very unhappy, for instance, with any new structure that should come before us in the future, we would, by that affirmative resolution, be able to throw out that new structure.
If the amendment were agreed, to prevent the risk of the UK perhaps having to act in a manner contrary to its commitments in the memorandum the UK might have to ask Commonwealth governments to change the agreed memorandum. Noble Lords will know that there is no guarantee that such agreement from 53 Commonwealth governments would be forthcoming. For those reasons we are opposed to the amendment.
The noble Baroness, Lady Rawlings, asked me what I meant by "speedy". This refers to the fact that finding time for primary legislation often means waiting months, perhaps years, for the right slot in the legislative timetable to appear, whereas if we are ready, waiting and prepared with secondary legislation available we would not fall outside our commitments to the Commonwealth in the agreed memorandum to which we have signed up.
moved Amendment No. 2A:
Page 3, line 38, at end insert—
"( ) This section comes into force the day after Her Majesty's Government have initiated a review within the Council of the European Union of the privileges and immunities which ought to be extended to the bodies and persons to which this section applies.""
My Lords, this is a simple amendment that I hope will help someway satisfy those who were involved in the debate on Clause 5 in Committee—although I note that it does not go as far as the noble Lord, Lord Pearson of Rannoch, would like.
It is effectively a sunrise amendment. It states that this section of the Bill could not come into force until Her Majesty's Government have initiated a review with the Council of the European Union. With our country's forthcoming presidency of the Council, this is a simple undertaking. Indeed, I believe that legally the amendment would not require the completion of such a review, although I rather hope that Her Majesty's Government would be gentlemanly enough to do so.
I should like to remind the noble Lord, Lord Triesman, of the extremely sensible words he used in Grand Committee:
"When the occasion for a review arises, I have no doubt that it will be seized upon".—[Official Report, 11/1/05; col. GC53.]
The amendment would provide the aforesaid occasion. If we are not to continue to be remiss in our commitments under European treaties, I hope the Minister will seize the option. I beg to move.
My Lords, it may be helpful to intervene in support of this amendment, even though there are a number of things I wish to say on Amendments Nos. 4 and 5. It is not our intention to block the Bill or to make things difficult for the Government; it is our intention, both on the Conservative and Liberal Democrat Benches, to make sure that this extension of immunity does not go by unobserved.
With my academic as well as my political hat on, I am struck by the extent to which the extension of international organisations and international agencies escapes scrutiny by national parliaments. As we heard from the Government Front Bench today, the argument is always made that, "We cannot do anything on our own without renegotiating with another 52 governments"—or whatever number it may be, depending on which organisation is involved—"so, by and large, we have to let things go".
It is our intention, both in this amendment which relates to the European Union and in Amendments Nos. 4 and 5 which relate to other organisations, to raise the question of how far international immunities should be maintained and extended. We recognise the impossibility of unilateral change, as has been argued, so we urge the desirability of promoting multilateral reconsideration.
There should be a general bias in favour of fewer immunities rather than more, and of fewer beneficiaries of immunities rather than more. I really cannot see why, for example, the European Schools need any diplomatic immunities. I am not entirely sure why the European Space Agency needs all the immunities it has. As the number of agencies associated with the European Union continues to expand—and it will—this is a question that we ought to raise.
We very much hope that Her Majesty's Government will therefore be willing to say in response to both amendments that they will undertake to commission a broad multilateral review of what is needed. We were told in Committee that the protocol that governs EU immunities is the European Economic Community protocol of 1965. That is a short time ago, but I think that everyone would agree that the European Union has expanded not only its membership but its competences enormously since then.
We were told that immunities with regard to other international organisations were governed by the Vienna Convention 1961—even longer ago. It seems, therefore, entirely appropriate that Her Majesty's Government should promote and initiate some sort of multilateral review. I cannot resist suggesting, since I see the noble Lord, Lord Kerr of Kinlochard, in his place, that we have an excellent potential chairman of such a multilateral review sitting on the Cross Benches. I am sure that he would love to undertake the task and would rapidly accept the Government's review.
We are looking for a commitment that the Government will not just let the Bill go by but will take the opportunity to ask how many diplomatic immunities do how many people need, for what purposes, and how far in future negotiations, in the European Union and other international organisations, we attempt to cut down the current extension.
My Lords, I thank the noble Baroness, Lady Rawlings, for her kind remarks about me—to say that anything I said was wise was always going to tempt me. I should probably congratulate the noble Lord, Lord Wallace, on flattering the noble Lord, Lord Kerr. If the debate had gone on any longer, we could probably have included all noble Lords in the House. I should like to start by making a general comment about why we confer privileges and immunities on organisations and bodies, including the ones that we are discussing today, and then turn to the substance of the noble Baroness's amendment.
Privileges and immunities are conferred on organisations and bodies to ensure that they are able to carry out their functions without being impeded. All the bodies that have been mentioned—some of them will sound curious in this context—make important policy decisions, and all are capable of being leaned on if they have vulnerabilities that are not covered by such international arrangements. The general policy of the Government in this respect goes back some way, certainly through the 1980s. Privileges and immunities should be granted primarily on the basis of functional need. The scope of the privileges and immunities conferred, and the organisations and bodies on which they are conferred, are determined only by the international obligations into which the United Kingdom enters.
As regards the organisations and bodies covered by the Bill, we have signed international agreements committing us to confer privileges and immunities on them. They are commitments that this country has entered into in good faith. A number of those agreements are of long standing; those for the OSCE, the ECHR and ITLOS were signed in 1993, 1996 and 1997 respectively. Any further delay in implementing those agreements could be interpreted as a real lack of commitment to those organisations.
I understand the noble Baroness's point about a sunrise clause. She invites me to say that this is the occasion on which to trigger the mechanism. However, I am afraid that I do not think that it is the occasion to initiate the review within the Council of the European Union on the privileges and immunities that ought to be extended to bodies created under Titles 5 and 6 of the Treaty on European Union. That is because EU member state governments negotiate specific agreements covering privileges and immunities for each body. It is the Government's policy and was the previous government's policy—it goes back some way—to ensure that the privileges and immunities are granted on the basis of a functional need. We had this discussion in Committee—it is specifically on the basis of a functional need. The Government are satisfied that the privileges and immunities granted to the bodies are necessary so that they can function properly and fully.
I suggest that noble Lords who have taken part in the debate, or other noble Lords who have a specific interest in the issue, might meet my noble friend Lady Symons of Vernham Dean to look through the issues involved in the amendment, see whether further clarification is required and have an exchange of views.
The general issue came up in Committee about whether we should always be prepared to review such matters, quite aside from whether this is the right moment to do so. I said on that occasion that people should not close their mind to thinking in fresh ways. We do not think that the mechanism proposed in the amendment would be right, but we believe that the kind of discussion I have offered on behalf of my noble friend Lady Symons would be very timely.
My Lords, I am disappointed by that rather wimpish response. I often regret that Her Majesty's Government do not pursue the more positive areas of our commitment to European co-operation more vigorously.
My Lords, I thank the Minister for his detailed answer. I agree that it is important for the organisations to carry out their duties without being impeded and that the commitment was entered into in good faith, but I am sorry that the Minister cannot reassure us on this occasion. I look forward to meeting the noble Baroness, Lady Symons of Vernham Dean, at a later stage. However, the issue is so important, given that the British presidency is coming up and the possibility that this could be on the agenda, that I wish to test the opinion of the House.
My Lords, I rise to move that Clause 5 do not stand part of the Bill. I imagine that your Lordships will not be surprised that I have chosen to exclude EU bodies from the immunities proposed by the Bill, given my antipathy to the whole project of European union. But there is also a perfectly good reason for singling out the EU and its various bodies—the other seven organisations covered by the Bill do not have such a substantial and growing influence on our daily life as does the European Union. That is not to say that I agree that the other bodies should have these immunities—I do not. I am not sure that I understand any longer why even foreign embassies should continue to enjoy them. Be that as it may, what is it that these bodies, their functionaries and their functionaries' families and households—not to mention their dogs and mistresses, as we see from col. GC 44 in Grand Committee on
My amendment would leave new bodies under the EU umbrella out of the Bill. It is worth placing on record in these proceedings on Report a Written Answer that I received on
"immunity from jurisdiction, exemption from taxation, exemption from customs duties and prohibitions and restrictions on importation and exportation of articles for official use".
The Answer also revealed that, thanks to the European Communities Act 1972, which absorbed the 1965 protocol on the privileges and immunities of the European Communities, the immunities are already extended to,
"the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors ... the European Central Bank, the European Monetary Institute and the European Investment Bank; and ... to certain representatives of member states and certain officials and servants of the Communities".
Could the Minister tell us who those last people are?
The Written Answer goes on, somewhat coyly, to say:
"The provisions of the protocol have also been applied to bodies created under the Community and to certain officials and staff engaged in the work of such bodies".—[Hansard, 11/1/05, col. WA 33.]
I am not entirely sure—and no doubt the noble Lord, Lord Triesman, will intervene if I am wrong—but I believe that those last bodies may be those revealed in the letter that he sent on
In Committee, the Minister said that there were 19 such bodies, but it seems that one had been counted twice, so we were left with 18. I appreciate that the letter has been placed in your Lordships' Library, but nevertheless I believe that it would be helpful if the 18 bodies were revealed in the Official Report. They are: the Agency for the Management of Operational Co-operation and the External Borders; the EU's Community Plant Variety Office; the European Agency for Safety and Health at Work; the European Aviation Safety Authority; the European Centre for the Development of Vocational Training; the European Environment Agency; the European Food Safety Authority; the European Foundation for the Improvement of Living and Working Conditions; the European Maritime Safety Authority; the European Agency for the Evaluation of Medicinal Products; the European Monitoring Centre for Drugs and Drug Addiction; our old friend, the European Monitoring Centre for Racism and Xenophobia; the European Network and Information Security Agency; the European Railways Agency; the European Reconstruction Agency; the European Training Foundation; the Office for Harmonisation in the Internal Market (Trade Marks and Designs); and the Translation Centre for the Bodies of the EU.
I hope that gives your Lordships some idea of the scope of existing EU activity in our daily lives and of the number and variety of new bodies that we may expect to receive these privileges and immunities in future under the Bill. One has to ask why any of those bodies need those immunities.
I repeat a question that I put to the Government in Committee and to which I did not receive an answer. Why should any of those foreign bodies, particularly the EU bodies, be blessed with those immunities, when foreign companies working in the UK do not—or, for that matter, which our companies and representatives working abroad do not enjoy? What is it that these bodies do which qualifies them for these privileges which are not available to the people who make the money which pays the tax which pays for all of them?
I suppose that part of the Government's defence for their position on this Bill and for the immunities proposed by the Bill may be that they are part of a system that has been running for years—that they are nothing new. Indeed, the noble Lord, Lord Triesman, advanced that philosophy in his answer to the previous amendment. But that defence should not wash. If a system has been running for years, that does not necessarily justify its continuance, especially if it is increasingly out of date and unnecessary. The noble Lord said that the immunities were necessary for the function of these bodies; could we draw that out a bit? Why are they necessary for their function?
Finally, I am aware that the Government may repeat what they said in our earlier proceedings on the Bill—that they, the Executive, have already signed up to the Bill under various international treaties, so Parliament, the House of Commons and your Lordships' House, are honour-bound to rubber stamp the agreement reached in international forums. This is not the time for a general debate about our relationship with the European Union, but I trust that your Lordships will agree that this is the assumption that has already handed so much of our sovereignty to Brussels.
Thanks to successive EU treaties, vast swathes of our national life which used to be entirely controlled by Parliament have been handed over to Brussels. Under the treaty establishing the European Communities, for instance, our commerce and industry, social and labour policy, environment, agriculture, fish and foreign aid have become subject to the qualified majority vote in the Council of Ministers. The country faces unlimited fines in the Luxembourg Court if Parliament were to refuse to ratify a law thus passed in those areas.
I know that some noble Lords, led perhaps particularly by the noble Lord, Lord Wallace of Saltaire, would like EU integration to proceed apace to its logical conclusion. Indeed, he has been very interesting on the philosophy that underpins his approach to the subject. But I trust that that does not prevent him agreeing with me on the amendment. I trust that it is common ground that no more of the EU's servants should be given the immunities and privileges envisaged in the Bill. I beg to move.
My Lords, I feel bound to support the noble Lord, Lord Pearson, in his amendment and in the remarks that he has just made. He very often makes those remarks, because he believes very much in what he says. I suppose that I have been making those remarks for well over 40 years, and I continue to believe what I believed then—that we should not have joined the Common Market and that we should now leave the European Union. That declares my interest in the whole matter.
The noble Lord is right—and the noble Lord, Lord Wallace of Saltaire, is right. At Second Reading, in Committee and today, the noble Lord, Lord Wallace, has made it clear—although he and I are on different sides of the fence—that he is concerned about the growth of privileges given to certain elites. Those sorts of privileges are beginning to undermine the confidence of people in international bodies and international systems. He is right in believing that. I think that we all believe in that. That is why it is necessary—it is a pity that the previous amendment was not carried—for the amendments to be tabled, and that includes this amendment.
The European Union is increasingly becoming a unitary government. Therefore, as it is becoming a unitary government, it does not need the privileges that are extended to it. The Commission has privileges. If I am not mistaken, agents of the Commission sitting in London and in various cities and towns in our country also have those privileges. I should like confirmation of that. If that is so, the widespread privileges that those people have impinge not only on our national life but on our local life.
I should also like, at this point, to raise the question of British Commissioners serving in Brussels. They enjoy privileges, as far as I know. It appears that one of them wants privilege beyond the privilege that he already has, and that is the privilege to interfere in national affairs and indeed to criticize the BBC itself and individual members of the BBC. Perhaps noble Lords have not noticed it, but he has launched into an attack on John Humphrys, accusing him of being a Euro-sceptic. I do not know where he has been for the past 30 or 40 years, but he has also accused the BBC of being Euro-sceptic. Anyone with any knowledge at all knows that that simply cannot be true.
Mr Mandelson is enjoying privileges as a European Commissioner but still wants to intervene in the political life of this country and to libel—this is the question to which I am coming—individual members of an organisation. Does his privilege extend to immunity from being sued for libel? I should like the answer to that.
The Bill appears to be a small, minor Bill. However, as we have gone through Committee, and as we are going through Report stage, we are beginning to find that it has far more importance than even I thought right at the beginning. That so often happens. We had the European arrest warrants legislation before us, and the noble Lord, Lord Pearson, and I and others took part in that debate. We said that it was very dangerous for British citizens, and we consequently opposed it. Apparently, however, many Members of the Commons did not understand what was happening. I see from a report in the Daily Telegraph of
I make that point simply to underline the fact that it is necessary for the House to scrutinise every Bill that goes through it and to do so in detail. If we do not, we might find that we are putting the British people in great jeopardy. Once we have done it in relation to the European Union, we cannot get out of it because of the acquis communautaire. Once we have agreed to something and once it has become law in the EU, we cannot undo it without the complete support of the European Council and the Council of Ministers.
So I hope that the House will consider the amendment very seriously. If there is a vote, I will, of course, support it in the Lobby.
My Lords, I agree with the noble Lord, Lord Stoddart, that this House was the first to recognise the dangers of the European arrest warrant and that the House of Commons woke up to the dangers of that warrant late in the day. However, I should like briefly to ask the noble Lord, Lord Triesman, a question. Will the members of the bodies concerned and their families be exempt from parking restrictions and parking fines, in addition to the many tax and import duty privileges that are being afforded to them?
My Lords, I am afraid that I am liable to disappoint all three of the noble Lords who have spoken because I do not intend to debate the issue of European integration. I do not intend to reopen some of the questions that have been asked because they are nothing whatever to do with this Bill. It is not a discussion of whether Europe has effectively become a unitary government. The Government are absolutely clear—we have always been clear and could not be clearer—that the EU is an organisation made up of independent nation states. That will continue to be the case.
Some of the questions that have been asked, to which I shall try to reply briefly, seem if anything to perpetuate mythologies. Are people exempt from parking restrictions? I think that that question must have been asked and answered a dozen times in this House. No, they are not. Is Peter Mandelson exempt from any action if in a private capacity he libels people and they take action against him for libel? No, of course he is not.
My Lords, Mr Mandelson was speaking as a European Commissioner. That is the question I was asking. If he is speaking in his capacity as a European Commissioner, is he exempt from being sued for libel if he makes a libellous statement? That is the question, and I should like an answer to it.
Perhaps I may deal with another point. Is it the case, as the noble Lord, Lord Pearson, suggests, that families are covered in the way that he describes? The current agreements conferring privileges and immunities for bodies under Title V and Title VI of the Treaty on European Union do not apply to families. That is another matter that has been cleared up on several occasions. The noble Lord suggested that it might apply to people's dogs. I can assure him that, by and large, dogs are not charged with offences under any national law and brought before courts, and nor do they have to plead immunities in those circumstances. We are really in the land of the wholly fanciful. I cannot believe that it helps the cause of arguing about the issues on the noble Lord's part, let alone mine, to deal with them in such ways.
I turn to matters of fact. The noble Lord, Lord Pearson, read out the names of a significant number of European Community bodies. However, they are not relevant to this Bill. They were listed because I was asked for a list of bodies in a particular context but they are not relevant to the Bill as it proposes conferring privileges and immunities on agencies established under the Treaty on European Union. Those bodies were not established on that basis. The bodies that were include the European Parliament, the Council, the Commission, the Court of Justice and the Court of Auditors. With the greatest of respect to the House, that is ground that we have all covered before. Covering it again will not change those facts.
I turn to matters of substance because that is where we ought to make our judgments. Deleting Clause 5 would mean that we would not be able to confer privileges and immunities or legal capacity on EU bodies established under the Treaty on European Union, or on persons connected with those bodies. There is no other existing legislation to allow the United Kingdom to implement its commitments to confer privileges and immunities under secondary legislation. Leaving such matters to be dealt with in primary legislation would make it extremely difficult and very long-winded for the United Kingdom to fulfil the obligations it has undertaken to confer privileges and immunities in the EU measures establishing the relevant EU bodies. These are not the only bodies with which we have these kinds of arrangements. Indeed, only some half an hour ago we discussed the arrangements that we have with our partners in the Commonwealth. Treaties exist in relation to many other nations. I am not espousing a philosophy here; these mutual obligations are a fact of life when making international treaties. It is not simply a characteristic of Europe.
These bodies need legal capacity and privileges and immunities in order to function fully. For each body, the EU member state governments have together negotiated a specific agreement covering privileges and immunities. As I said in the previous debate, it has been this Government's policy—as it was the previous government's policy—to ensure that privileges and immunities are granted on the basis of functional need.
The ATHENA financing mechanism, the EU Satellite Centre and the Institute for Security Studies are all bodies which the United Kingdom supports as important for the successful development of the European Security and Defence Policy. They need legal capacity in order to operate; without that these agencies could not enter into agreements, for example, to enter into leases, to rent buildings, or open bank accounts. They also need privileges and immunities related to the official work of the organisation to ensure that these agencies can operate freely in support of the foreign and security policy being developed by the EU's member states, including ourselves.
I do not wish to use an example from the European Union, but if anyone doubts that diplomats and others working in these bodies need these kinds of protections, I ask noble Lords to think how such people would be placed trying to operate in a country like Zimbabwe without such protections. These protections are fundamental to getting on with the job at hand.
We have made a commitment to confer legal capacity and privileges and immunities in the way that I have described. We intend that the bodies should be able to function freely, fully and appropriately. We need to fulfil that commitment and to do that we need the legislative powers which would be conferred by Clause 5.
For those reasons we cannot accept the amendment. I appeal to your Lordships' House to argue this case in terms of the facts and the realities rather than the things which apparently are supposed to scare us but which have no application at all in this context.
My Lords, I am most grateful to noble Lords who supported this amendment and to the Minister for his very full reply, which will justify study in Hansard. The Minister said that some of the points I made had nothing to do with the Bill. I think that when your Lordships read Hansard they may not agree with that. I was trying to get out of the Minister what the present situation is with regard to the immunities we have granted to the European Union and its bodies. I went through the list of 18 bodies that he was kind enough to supply in writing to my noble friend Lady Rawlings because they show the scope of the present immunity and therefore what the scope of immunity is likely to be. That is very germane to this Bill. Therefore, I do not accept the Minister's reprimand on that account.
In response to my noble friend Lord Stoddart of Swindon, the Minister said that Mr Mandelson could be sued for libel if he was speaking in his private capacity but not if he was speaking in his capacity as a European Commissioner. He went on to say that obviously anything that Mr Mandelson says against John Humphrys will not attract immunity—at least I understood him to say that. I find that rather interesting. It is worth further study to see whether the noble Lord has that right.
The Minister pulled my leg about dogs but both in Committee and now he has not answered the question whether, if one of these people's dogs were to bite someone in the street here, those people would attract immunity. From what he said I assume that they would not. However, it seems a perfectly reasonable question to ask.
Further to the Minister's Written Answer of
I do not accept that the remarks I made are not germane to this Bill. It would be helpful to be told what these people do which justifies these immunities when they are not given to other international bodies, commercial bodies and so on. The Minister says that they need it to fulfil their functions. I am afraid that does not answer the question. It is a case of, "Bang, bang, you are dead and we are not playing". Before we come to the next and final phase of the Bill it would be very helpful to be informed by the noble Lord in writing what these bodies do which requires this kind of immunity. On the assumption that the noble Lord will be good enough to answer the other questions that I have left with him, I beg leave to withdraw the amendment.
moved Amendment No. 4:
After Clause 10, insert the following new clause—
"PRIVILEGES, IMMUNITIES AND FACILITIES REPORTS
(1) This Act shall not enter into force until a report has been published, setting out the current framework for granting diplomatic privileges and immunities, for assessing the appropriate level of such privileges and to whom they should apply.
(2) The report, as set out in subsection (1), shall be debated by both Houses of Parliament.
(3) Once the conditions of subsections (1) and (2) have been met, a report shall be published each year setting out the privileges, immunities and facilities conferred under this Act in the previous year."
My Lords, Amendment No. 5 is consequential to Amendment No. 4 so I shall speak to the two together. This is the mildest and most modest of amendments that I hope—as we have heavily signalled our intentions to the Government—it will be possible for the Government to respond in such a generous way that we may not need to divide the House, but we shall see.
The background to the amendment is the difficulty that many of us had when we started to study this issue in discovering what the situation is regarding the current framework for granting diplomatic privileges and immunities, or for assessing which privileges and immunities go to which organisation under which conditions. Inquiry to the Lords Library, the law department of the London School of Economics and the Foreign Office legal advisers left me still extremely confused and very short on recent material on the subject. There are some rather heavy weight international legal treatises but most of them refer to cases from the 1950s or 1960s. It would therefore seem appropriate for the information of Parliament to ask Her Majesty's Government to draw up a report on where we now stand. One would hope that such a report would circulate to other governments and help to promote a broader series of discussions and negotiations. We were told on one of the previous amendments that we must address the "functional needs" of appropriate international organisations. In that case, the House is entitled to know what are such "functional needs".
We recognise that much of this proceeds through inertia. We give to each new agency, whether EU, global, or regional, the privileges and immunities that had been granted to their predecessors five years ago, 10 years ago, 15 years ago, 20 years ago, and longer. However, we are in a process of rapid change. Globalisation, as the noble Lord, Lord Giddens, has written about almost endlessly over the past 20 years, is now well upon us. New agencies and new intergovernmental organisations appear every year, and this is a process that is likely to continue. We also recognise that it is extremely difficult for national parliaments to get any handle at all on this process. Governments negotiate, they present to Parliament the treaties they have concluded, and the subordinate legislation follows from those treaties. Here is an opportunity for a national parliament—our Parliament—to ask: where are we, and why? Where do we think we are going? What principles do Her Majesty's Government think they are following as they move through these negotiations?
We recognise that many global intergovernmental organisations need such immunities. As I said in Committee, I was at one point this summer in the middle of a UN convoy in south Ossetia, and I felt desperately in need of all the privileges and immunities that one could possibly have under such circumstances, and about which the armed people surrounding our convoy did not seem to be at all concerned. Not all intergovernmental organisations need all of these privileges under all circumstances. I hope that we shall hear from the Government Front Bench that the Government are willing to inform Parliament of the current situation and background as they understand it of international law. Perhaps they will give us an opportunity—not of course before the election but in the foreseeable future—to debate the principles that they think they are following. I beg to move.
My Lords, I hope it does not embarrass the noble Lord, Lord Wallace, too much if I rise to support these amendments. I can see that, if accepted, this process might have the effect of getting some of the more unjustifiable of these immunities and privileges to wither on the vine over a period of time, which would be better than nothing. Certainly, as far as concerns the organisations that are not part of the European Union, this would be an excellent step in the right direction. If the Government are in good faith, which I am sure they are, when they say that they believe that such organisations need these immunities and privileges to function in the way that they do, I feel sure that they will want to issue the report that is asked for in this amendment.
My Lords, I support the noble Lord, Lord Wallace of Saltaire, and the noble Baroness, Lady Falkner, in this amendment. It goes much further than my amendment to Clause 5, and it addresses the wider issues of immunities and privileges with regard to all international organisations, not just those within the European Union.
I do not wish to take up the time of the House by reiterating too much of what noble Lords have said. As discussed in Committee, many of the original Acts to be amended date back to the 1960s and, as such, in a world that has developed increasingly complex international relations and levels of international bodies and organisations that mesh on regional and national levels. While the Minister informed the House that privileges and immunities are effectively awarded on a case-by-case and needs-must basis, we want some more information on how that is achieved in this modern day world and on how the duties that have yet to be awarded will be working.
The immunities awarded to UN workers for the oil for food programme were much in the news this weekend, and that prompts me to question them further. On the one hand:
"Even after the publication of the interim Volcker report, Mr Sevan's status with the UN remains strangely blurred, and UN officials seem to have remarkable trouble defining it. Does he still have diplomatic immunity? Yes. Has he retired? Yes, but he still has the status of a contract employee, at $1 per year, maintaining his immunity. Does he have a pension? Yes, but it is not yet being paid".
On the other hand:
"Mark Malloch Brown, the eloquent British official who Mr Annan recently promoted to be his chief of staff with a brief to 'renew' the organisation . . . said. 'But these are extremely serious charges of wrongdoing and no one will be shielded from prosecution. If there are criminal charges, the UN will fully co-operate and waive diplomatic immunity of staff members, whoever they are'".
Even the Secretary-General, who set up the Volcker inquiry, has expressed himself shocked at the behaviour, ordered disciplinary action, and promised to lift the diplomatic immunity of any UN official facing criminal prosecution. These waivered immunities were in the news twice last week. As the noble Lord, Lord Saltaire, spelt out so clearly, this illustrates the point that in this modern global world, with so much legislation around protecting the citizen, the treaty is clearly out of date and needs reviewing. That highlights why we need to look at the question of immunities and privileges again. In this vein, I hope that the Minister will consider the amendment carefully.
My Lords, I rise slowly because I know the enthusiasm of some noble Lords to take part in the debate. This amendment—I will deal with the second amendment in the group in a moment—would mean that the Government's ability to meet their international obligations and commitments would be seriously delayed. I will reflect shortly on the consequences of such a delay.
As it covers not only Europe but also Commonwealth (worldwide organisations), we are dealing with the level of privileges and immunities to be afforded to international organisations in a sensible way and on a case-by-case basis. The privileges and immunities granted to any organisation are also subject to parliamentary scrutiny before they are given effect in UK law.
Although I was told that it was a wimpish conclusion—I am probably going to be less than wimpish as I go through this speech—I repeat the offer made by my noble friend Lady Symons of Vernham Dean to meet the noble Lords proposing the amendments to discuss what clarifications are required. I make that offer recognising that there are officials at the UN and elsewhere who do enjoy immunities. It is not impossible in an international treaty, even if we all agree about the level of immunities and privileges, to find that some people may have abused them. Some people with full diplomatic cover have done so historically. I am thinking of Lord Home expelling a significant number of what were described as "Soviet diplomats" because they had exceeded by any measure the immunities that they plainly had in the time they were in this country.
The origins of the inviolability and immunities enjoyed by diplomatic missions, and more recently by international organisations, can be traced back a long way. I probably do not need to tell the noble Lord, Lord Wallace, this, as he is one of the country's acknowledged experts, but I am told that they probably started in ancient Greece, India and China. In the modern world, they are still considered by the international community to be essential to ensure that relations between states, bilateral or multilateral, through the medium of an international organisation, can be conducted without fear of intimidation or harassment of their representatives. It follows that international organisations and their staff—if they find themselves benefiting from those immunities to enable them to fulfil their roles effectively and independently and without fear of undue pressure from any quarter—will do those jobs properly, in a way that is of benefit to the international community.
The Government's approach to questions of privileges and immunities for international organisations and their staff is long established. It is based on the fundamental principle that privileges and immunities are not for the benefit of individuals, and should be granted only where they are necessary to ensure that the organisation and its staff can perform their legitimate functions effectively. On the question of fiscal privileges, our policy adheres to the internationally accepted principles that one state should not tax another through the medium of an international organisation, and that states should not benefit financially from the presence of an organisation which happens to be located on their soil. The agreements setting up international organisations establish the level of privileges and immunities necessary for their efficient operation, and all are subject to separate negotiation.
When the Government consider their position on the level of privileges and immunities appropriate to each organisation, some factors are relevant. They were mentioned in our letter to the noble Lord, Lord Wallace, which has been more widely circulated. They deal with the range of functions which we are discussing and about which perfectly legitimate questions have been asked by the noble Lord, Lord Pearson, and others. The first factor is the area of activity—whether the organisation is of a political, commercial, social, cultural, technical, scientific or some other nature. Then there is the geographical scope—whether the organisations cover a wide area or are limited to a particular region, and whether they operate in the UK. For example, if an organisation has its headquarters in the UK, it may well be appropriate to confer a wider range of privileges and immunities on it.
The third factor is the power of decisions—whether an organisation's decisions are binding on member states and on individuals within them, or are recommendatory or only advisory. The fourth point is the role and purpose of the organisation—whether it serves limited interests, such as those of a few producers, or has wider aims, such as serving both producers and consumers; whether it is of a financial nature, aimed at the development and improvement of social conditions; or whether it is of considerable political or economic importance.
The fifth factor is financial considerations about functions—whether the organisation is non-profit-making and funded entirely by member states or has any commercial activities. The sixth is membership—whether it is composed entirely of sovereign states or extends to non-governmental entities, and which states are members. The final factor is size. A large multinational organisation will normally require more extensive privileges and immunities than a small one.
The Government believe that to test against that template is the right practical and flexible approach. We will therefore continue to look closely at privileges and immunities proposed for international organisations on an individual basis, judged against those criteria. It is important to note that the immunities granted to the staff of international organisations are in general very restricted. Of the 3,000 staff of international organisations based or with offices in the United Kingdom, only 20 high officers enjoy the equivalent of full diplomatic immunity. The remainder have no immunity entitlement beyond immunity for acts performed in the course of their official duties.
There have been very few cases where staff of international organisations in the UK have abused their privileges or immunities. I acknowledged to the noble Baroness, Lady Rawlings, that in any human society it is not inconceivable that people will do so. However, all agreements on privileges and immunities to be afforded to international organisations do and must contain remedies—most importantly provision for immunity to be waived—which can be used where abuse does occur. While staff often enjoy exemption from national income tax on their official salary and emoluments, they are instead subject to an internal tax which is levied for the benefit of the body concerned.
It is at that point that I turn briefly away from the facts, to the philosophy that leads me to conclude that the amendment would not be appropriate at this time. I have discussed it with officials, and the scope of the work that would be involved in doing what is suggested in the amendment would be huge. If done, it would be a huge distraction from the international obligations that we will have as a nation over the next months.
There are obviously a number of things that we would like to do, given time to do so, and much that it might be beneficial to review and change. On occasion, we do so where it seems important. The change in European development aid, which we debated recently in this House, is a good example—we made change where it really counted. It would not be sensible to engage in a serious delay. During the two presidencies, we could not conceivably raise the matter as a priority and try to expedite it.
What would happen if we set our priorities during the presidencies as the elimination of the appalling conditions of famine and poverty in Africa and a major attempt to try to deal with the terrible consequences of carbon emissions on the world's environment, and said, "By the way, we'd like to review a vast number of treaties as well"? That would take vast amounts of time. It simply could not be taken as a serious proposition at that stage. There would then need to be an even more serious delay until after those presidencies were completed, so that we could then embark on this huge volume of work. It does not make much sense.
That leads us to the amendment to Clause 11, Amendment No. 5. It is linked to the proposal in Amendment No. 4 that the legislation should not enter into force until a report on the framework for granting privileges and immunities has been published and debated in Parliament. That is bound to be an international operation. It could not sensibly be done without talking to those with whom we have international relations. For those reasons, the Government oppose both amendments.
My Lords, in the context of the questions that I put to the noble Lord, would the Government find it easier to accept the amendment if, instead of stating:
"This Act shall not enter into force until a report has been published", it read "Within one year" or a period of time from the passing of the Act, "a report shall be published" and so on? That might take some pressure off the Government and still meet the point of the amendment.
My Lords, my reply was about priorities. Even within the course of one year, it hardly seems the most vital thing that we could achieve in the international community. My noble friend offered a meeting in which the matter could be explored further. I urge noble Lords to take up that offer as a serious one that would certainly be relevant.
My Lords, I am not sure whether to be more amused or exasperated by that extraordinary response, in which we have been accused, as it were, of undermining the Government's efforts to abolish world poverty by suggesting the amendment. I had thought that the Minister was a signed-up member of new Labour. As I understand it, new Labour believes in modernisation and change—in challenging the conventional wisdom and attacking inherited and outdated privilege. What I heard was that the Government prefer a quiet life on this matter, and would like to carry on according to the accepted principles.
If there is not in Her Majesty's Foreign Office a basic document that sets out the current framework for granting diplomatic privileges and immunities, and assesses the appropriate level of such privileges and to whom they should apply, I am astonished. If there is no such document, I assume that the Government operate completely by the seat of their pants on the issue. My respect for the Foreign Office's legal advisers is greater than that.
I attempted to categorise which new agencies get what, and did not find it very easy because a large number of new agencies and organisations are being created. If Her Majesty's Foreign Office would care to offer, say, a grant of £10,000 to employ three research students from some British university to go through the detail, I am sure that it could be done extremely easily and quickly. It is not a huge enterprise.
In suggesting that delays to the Bill will be created by the amendment, the Minister was going enormously over the top. We have no desire to delay the Bill. Our desire is to put down a marker about the extent to which the continuing expansion of international agencies deserves the continuing expansion of diplomatic rights and immunities.
The Minister referred to the abuse of immunities and we are well aware of those. The noble Baroness, Lady Rawlings, referred to the extent to which immunities are granted and then waived when challenged. One has to ask then, "Why are we spending so much time granting all these immunities if they are waived when necessary?".
I have some sympathy with the positions taken by the noble Lords, Lord Stoddart and Lord Pearson of Rannoch, as regards the European Union. I believe that we should question the continuation of what were diplomatic privileges and immunities in what is now a confederation.
On this occasion, we do not intend to divide the House. We do not want to delay the Bill, but we shall pursue the issue further in the face of the Government's general wimpishness on this and many other issues. I have previously attempted to push Ministers to challenge other EU member governments on areas in which they do not apply EU law. I was recently having a go at a senior German politician about the German government's refusal, for example, to recognise degrees from British universities. That refusal is clearly in contravention of EU law, but the Department for Education and Skills refuses to take up the matter.
I would like to see the Government being a little more true to the principles of new Labour as I hear them proclaimed from time to time. I struggle to understand what they are, but I do my best in that respect. I assure the Government Front Bench that we shall return to the matter and push the Government further. I beg leave to withdraw the amendment.