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Session 2008 - 09
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Public Bill Committee Debates

The Committee consisted of the following Members:

Chairman: Mr. Edward O'Hara
Ainsworth, Mr. Bob (Minister for the Armed Forces)
Baron, Mr. John (Billericay) (Con)
Buck, Ms Karen (Regent's Park and Kensington, North) (Lab)
Clwyd, Ann (Cynon Valley) (Lab)
Cryer, Mrs. Ann (Keighley) (Lab)
Harvey, Nick (North Devon) (LD)
Joyce, Mr. Eric (Falkirk) (Lab)
McGovern, Mr. Jim (Dundee, West) (Lab)
Main, Anne (St. Albans) (Con)
Mullin, Mr. Chris (Sunderland, South) (Lab)
Murrison, Dr. Andrew (Westbury) (Con)
Pritchard, Mark (The Wrekin) (Con)
Rennie, Willie (Dunfermline and West Fife) (LD)
Roy, Mr. Frank (Lord Commissioner of Her Majesty's Treasury)
Stanley, Sir John (Tonbridge and Malling) (Con)
Todd, Mr. Mark (South Derbyshire) (Lab)
Mark Oxborough, Committee Clerk
† attended the Committee

Sixth Delegated Legislation Committee

Tuesday 20 January 2009

[Mr. Edward O'Hara in the Chair]

Draft European Union Military Staff (Immunities and Privileges) Order 2008
4.30 pm
The Minister for the Armed Forces (Mr. Bob Ainsworth): I beg to move,
That the Committee has considered the draft European Union Military Staff (Immunities and Privileges) Order 2008.
The Chairman: With this it will be convenient to discuss the draft Visiting Forces and International Headquarters (Application of Law) (Amendment) Order 2008 and the draft International Headquarters and Defence Organisations (Designation and Privileges) (Amendment) Order 2008.
Mr. Ainsworth: Thank you for chairing our proceedings, Mr. O’Hara. Before we start debating the orders, let me put it on the record that we are here during the inauguration of the 44th President of the United States. I have attempted to negotiate with the Opposition Front-Bench spokesman to enable us to get out of here, but my approaches have been rebuffed by individuals who are not interested in such an historic occasion so it seems that we must stay and work through the proceedings.
The three draft orders were laid before the House on 23 October, together with the joint explanatory memorandum. They give effect collectively to certain provisions of the three status of forces agreements to which the United Kingdom is a party. They are the North Atlantic Treaty Organisation status of forces agreement, the NATO partnership for peace status of forces agreement and the European Union status of forces agreement.
The SOFAs establish the status of military and civilian personnel originating from one country when they are located in the territory of another country. They also provide for the status of military headquarters established in other countries. The status, privileges and immunities conferred on military and civilian personnel by the draft orders are no greater in extent than those required by the relevant SOFA or the established custom and practice to enable either NATO or the European Union and specified individuals connected with those organisations to function effectively.
The NATO SOFA effectively has primacy. The partnership for peace SOFA extends the NATO SOFA to all the states that have accepted the invitation to participate in the partnership for peace. The EU SOFA only comes into force when it has been ratified by all the EU member states and only applies in so far as the status of their forces is not regulated by the NATO or the partnership for peace SOFA.
The Visiting Forces and International Headquarters (Application of Law) (Amendment) Order 2008 amends the Visiting Forces and International Headquarters (Application of Law) Order 1999 to include Bosnia and Herzegovina, Croatia, Ireland, Montenegro, Serbia and Tajikistan in the list of visiting forces countries. It also updates the list of headquarters to which the 1999 order applies. For example, the NATO headquarters for Allied Naval Forces North Western Europe has been renamed the Maritime Component Command Headquarters Northwood. The effect of the order is to ensure that the various laws apply to visiting forces and international headquarters in the same way as they apply to our domestic forces.
The International Headquarters and Defence Organisations (Designation and Privileges) (Amendment) Order 2008 provides for the amendment of the International Headquarters and Defence Organisations (Designation and Privileges) Order 1965. It updates the list of headquarters to which the 1965 order applies. That order provides for the inviolability of the official archives of international headquarters, which have a presence in the UK. In respect of some of those headquarters, the 1965 order also confers legal capacity and provides for immunity from legal process that involves the seizure of any funds or property.
The European Union Military Staff (Immunities and Privileges) Order 2008 confers privileges and immunities on the European Union and its military staff. Principally, it states that staff
“shall enjoy immunity from suit and legal process, in respect of things done or omitted to be done in the course of the performance of official duties”.
It also provides that the official archives of the EU military staff and the EU are inviolable, in the way that those of diplomatic missions are inviolable under the Vienna convention of 1961.
Once the orders have been made, Her Majesty’s Government will notify the secretary-general of the Council of the European Union under article 19(2) that constitutional procedures for the ratification of the EU SOFA have been completed. There are no further notification requirements in respect of the NATO and partnership for peace SOFAS. The orders simply bring the list of countries and headquarters up to date.
The provisions of these orders extend to the United Kingdom. In Scotland, they apply only so far as they relate to reserved matters under section 29(2)(b) of the Scotland Act 1998. The orders will allow the United Kingdom to comply with its international obligations. They will give full effect to the privileges and immunities that were agreed in the SOFA agreements, and will allow the United Kingdom to develop the strong partnership that it has with those organisations.
I am satisfied that the orders are compatible with the human rights contained within the European convention on human rights. They are important and I hope that they will receive the Committee’s support.
4.37 pm
Dr. Andrew Murrison (Westbury) (Con): Let me say what a great privilege it is to serve under your chairmanship, Mr. O’Hara, in the other great political event of the day. I must declare my interest in the Register as I am a medical officer in the Royal Naval Reserve. The second two listed orders are of a housekeeping nature. They are largely uncontroversial and need not detain us long. They are made under the Visiting Forces Act 1952 and are commensurate with the NATO SOFA and the partnership for peace SOFA. We are happy with them.
The first order listed, the draft European Union Military Staff (Immunities and Privileges) Order 2008 is more problematic. In our view, it is redundant as the armed forces partner nations will be covered by SOFAs and orders relating to NATO and partnership for peace, or could be added by Order in Council in accordance with section 1(2) of the 1952 Act. The primary purpose of the EU order seems to be that of promoting the military identity of the European Union to give it military competency or personality. We are concerned that that is part of the drift towards giving an equivalence to NATO, and we believe that it is unhelpful. We have made it clear that we do not see the European Union as a standing military outfit and that we have no objections to ad hoc coalitions of the willing. However, we have grave concerns that if the European Union develops its military dimension, it will vie or compete with NATO. That could cause confusion and weaken the organisation which, on 4 April this year, will have kept us safe for 60 years.
On this special day, with 18 minutes to go as we ponder our future relationship with the United States, it behoves us to consider carefully the implications of what the Government have embarked on, and the damage that might be done to our collective defence by allowing the European Union to muddy the waters of that defence in any way.
I have a few brief questions for the Minister. Paragraph 4.5. of the explanatory notes states that of the three SOFAs cited—the EU SOFA, partnership for peace SOFA and NATO SOFA—the NATO SOFA has primacy, and the Minister referred to that. It is not clear what that means in practice and how that primacy might be exercised. Why is it necessary to build a SOFA hierarchy at all? Apparently, the EU gets the IKEA sofa and NATO the John Lewis one. That is all right by me, but it is not clear, unless the Minister envisages a conflict, why one has to have primacy over the other. He might like to explain the circumstances in which he envisages that there might be an issue and why it is necessary to establish that one SOFA has primacy over the other.
In paragraph 5 of the explanatory notes, we learn that Scotland is partially exempt, in respect of reserved matters, from the orders. Again, the Minister touched on that, but did not describe any circumstances in which it might be so. Can we expect legal action to be taken against members of armed forces of other countries in Scotland but not in England, Wales and Northern Ireland, or that headquarters in Scotland will be accorded a different status and separate arrangements for privileges and immunity?
Can the Minister say which countries have yet to approve the EU SOFA, and confirm that the order will be void unless the SOFA has unanimous support? Finally, what EU military headquarters in the United Kingdom does the Minister have in mind as candidates for the provisions of the EU order before us?
4.41 pm
Mr. Ainsworth: I thank the hon. Gentleman for being brief in raising his concerns. I was not surprised, as he was expected to say that his concerns were with the EU SOFA. His obsession is shared by many other hon. Members, particularly but not exclusively in the Conservative party.
Dr. Murrison: The Minister has fired me up to point out that my obsession is shared by 70 per cent. of the British public, so we are in good company.
Mr. Ainsworth: It depends on what question we ask and how we ask it whether we get the 70 per cent.
The hon. Gentleman asked why there was a need for an agreement at all and why the countries involved could not simply be covered by the other arrangements. First, we have entered into an agreement with the European Union, and the order brings it into effect. Having entered into an agreement, Her Majesty’s Government have a habit of trying to honour the agreement. That is a reputable habit, which should be followed by other countries. The hon. Gentleman has to accept—I hope that he does—that we could envisage a situation in which a member of the European Union was not a member of NATO and had chosen, for whatever reasons, not to be, at any particular point in history, a member of the partnership for peace arrangement with NATO, either. In that case, it would fall into neither of the other categories, yet we would have a legal obligation to cover it and to allow it to enter into a status of forces arrangement with us as an EU member state. The third category is necessary to cover that eventuality. I think, although I am not sure, that Ireland falls into that category or did do until fairly recently.
Dr. Murrison: I am grateful to the Minister. I think that Ireland is included in the orders that we are debating today, but let us set that aside. Can he confirm that under section 1(2) of the 1952 Act, an Order in Council could be made that would include the armed forces of any member state? Can he also confirm that Parliament is sovereign and that we are not here today to conduct a rubber-stamping exercise in respect of agreements entered into by the Government?
Mr. Ainsworth: I suppose that the hon. Gentleman is right, in that we could enter into status of forces agreements with each and every individual country separately and bilaterally; that is another way of doing it. Her Majesty’s Government have chosen to enter into a status of forces agreement with the European Union. The country has only three status of forces agreements: one with NATO, one with the partnership for peace nations that are attached to NATO or that have that arrangement with NATO, and the other with the European Union.
Dr. Murrison: And Iraq.
Mr. Ainsworth: Well, in Iraq we have a status of forces agreement, but in the UK we do not have a status of forces agreement with Iraq. There are more countries than just Ireland. The hon. Gentleman asked how many EU member states have so far ratified the EU SOFA. All member states have ratified it with the exceptions of Denmark, Italy, Ireland and the UK. We are near the back of the list and have no particular desire to be the last.
Dr. Murrison: This is a point of some concern. Defence is a matter retained by the Westminster Parliament. I hoped that the Minister would at least have had a discussion with his colleagues in Edinburgh to ensure that the Scottish Parliament will vote in a way that accords with ours. There is potential for differences in the way such issues are handled within the UK. To put it mildly, that would be untidy.
To clarify my last question that the Minister referred to, I was thinking about the Visiting Forces and International Headquarters (Application of Law) (Amendment) Order 2008 in relation to the status of EU headquarters. I was wondering which EU headquarters in the UK he has in mind for the application of the order.
Mr. Ainsworth: On that latter point, there are currently no EU headquarters in the UK. However, I think the hon. Gentleman is aware that we are running a European mission out of Northwood under the auspices of the European security and defence policy. Yes, there is a UK lead, but headquarters staff from other European countries are involved who could be covered by the status of forces arrangements when operating under the auspices of the EU in Northwood on that mission. That is the only EU mission currently in the UK. This is not a hypothetical situation; an EU operation is being headquartered out of Northwood as we speak.
Dr. Murrison: Will the Minister confirm that members of the armed forces of EU countries who are operating out of Northwood or who are otherwise deployed in the UK are not currently covered by any agreement? My thesis is that they are already covered, or could easily be covered, without the measures we are discussing. It is cause for concern if they are not covered. That would be extremely bad, but I suspect that they are covered.
Mr. Ainsworth: I cannot say that, but the armed forces of Ireland are certainly not covered at present. Members of the Irish armed forces may well be involved in the ESDP mission at Northwood. There is the real possibility that we need a status of forces agreement to cover that ESDP mission. Ireland is mentioned, but it is added in the orders we are considering.
The Foreign and Commonwealth Office has been in communication with the Scottish Executive and they have passed similar legislation on privileges and immunities. They are aware of the need to pass legislation for the full EU SOFA. This is not controversial for the Scottish Executive, but they are obviously quite jealous of their devolved powers and they have a separate legal framework, so it is clearly more appropriate for them to cover the situation, because they are the competent people to do so. They are mindful of their own legal framework, north of the border, and are better placed to deal with the matter than we are down here.
I think that I have answered the hon. Gentleman’s questions, but if I have not, I shall allow him to intervene.
Dr. Murrison: The Minister is generous. He did not really satisfy me on the hierarchy of SOFAs. We discussed John Lewis and Ikea. I wonder why it is necessary to have this hierarchy, unless the Minister envisages some sort of conflict that needs to be resolved. Perhaps he could help me on that.
Mr. Ainsworth: There is not a conflict. Overwhelmingly, the nations covered are already covered by the NATO SOFA, as the hon. Gentleman says, which is the first one that people will turn to. After that, come the additional countries that are covered by the partnership for peace process. The EU SOFA becomes relevant only where the relevant privileges and immunities in respect of a particular country have not been given by either of those two. We look first to the NATO SOFA, then to the partnership for peace, then to the EU SOFA. The immunities are broadly similar with regard to military personnel across the three SOFAs, so there is no difference—no potential conflict—in that regard.
Dr. Murrison: The Minister is being generous, but he still has not told me why we need to establish one SOFA as having primacy over the other. That is still obscure. May I press him on that?
Mr. Ainsworth: The other matter that will not be covered by either a NATO SOFA or a partnership for peace SOFA—it is probably a controversial matter for the hon. Gentleman—is ESDP activity in the United Kingdom. So there is a need for a separate EU SOFA to cover ESDP operations and activities in the UK.
Dr. Murrison: Perhaps the Minister could expand on that, because it is still not clear to me why the EU order is necessary, given that we only have one EU headquarters, working out of Northwood, and we have more or less established that that is covered by existing legislation, and the Irish element is covered by the Visiting Forces and International Headquarters (Application of Law) (Amendment) Order, which we do not oppose. Everything else is covered already or could easily be covered by simply making an Order in Council under section 1(2) of the 1952 Act, which allows the Minister to apply for that, and to add any number of countries to the remit of that Act. It is still not clear to me, other than for superstate building, why it is necessary to have the EU order.
Mr. Ainsworth: I think that the hon. Gentleman’s problem is that he objects, in the first place, to any agreement with the European Union. It is not a reason for him to say, “Well, there is only the one headquarters and therefore that could be covered.” There is one headquarters at the moment. I use that as an example, just to say to the hon. Gentleman that this is not a hypothetical situation. An ESDP is being run out of UK headquarters as we speak. That is not to say that there will not be something else at some time in the future. I know that that is anathema to the hon. Gentleman. But it is not anathema to the UK Government and it is not out of line with our agreements and obligations.
The hon. Gentleman asks why we cannot just make the designation under an Order in Council. The countries that have been designated under the relevant section need additionally to receive the exemptions and privileges afforded by the Visiting Forces and International Headquarters (Application of Law) Order. I refer him to order 299 of 2008, which has already designated those countries.
Question put:—
The Committee divided: Ayes 9, Noes 5.
Division No. 1]
Ainsworth, rh Mr. Bob
Buck, Ms Karen
Cryer, Mrs. Ann
Joyce, Mr. Eric
McGovern, Mr. Jim
Mullin, Mr. Chris
Rennie, Willie
Roy, Mr. Frank
Todd, Mr. Mark
Baron, Mr. John
Main, Anne
Murrison, Dr. Andrew
Pritchard, Mark
Stanley, rh Sir John
Question accordingly agreed to.
That the Committee has considered the draft European Union Military Staff (Immunities and Privileges) Order 2008.


That the Committee has considered the draft Visiting Forces and International Headquarters (Application of Law) (Amendment) Order 2008.—(Mr. Bob Ainsworth.)


That the Committee has considered the draft International Headquarters and Defence Organisations (Designation and Privileges) (Amendment) Order 2008.—(Mr. Bob Ainsworth.)
4.59 pm
Committee rose.

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