The Human Rights Implications of the Bill
3.3 Immunity from suit in UK courts engages the right to a fair
hearing under Article 6 ECHR. Immunity from suit as provided for
in the Bill might mean that, for example, employees of the organisations
dealt with in the Bill would be unable to bring employment disputes
before the UK courts.
3.4 Article 6 of the European Convention on Human
Rights (ECHR) protects the right to have disputes concerning civil
rights and obligations determined by a competent tribunal. Article
6 therefore guarantees a right of access to court in relation
to such disputes.
This right includes not only the right to institute proceedings
before the court, but the right to a determination of the merits
of the claim. This right is not however, an absolute one, since
the right of access to court by its nature requires regulation
by the state.
3.5 Therefore, procedural bars which prevent the
full consideration of disputes are in certain circumstances permissible,
where they pursue a legitimate aim and are proportionate to that
aim. In order
for such limitations to be permissible, they must not impair the
very essence of the right of access to court.
3.6 In particular, the ECtHR accepts the need for
immunity from suit of international organisations as a legitimate
aim which may justify interference with Article 6 rights of access
to court. Where an immunity from suit is based on clear rules
of international law, its application in national law in a way
that interferes with Article 6 rights cannot be regarded as arbitrary
but the existence of such international rules does not of itself
absolve the state of its obligations to comply with rights under
Article 6. Any
restriction of Article 6 rights arising from immunities from suit
requires justification on the basis that it pursues a legitimate
aim and is proportionate, and must be assessed in light of the
particular circumstances of the case.
3.7 In the case of Waite and Kennedy v Germany,
the ECtHR found that an immunity from suit of the European Space
Agency in an employment dispute before the German courts constituted
a proportionate interference with Article 6 rights. In that case,
the finding that the interference was not arbitrary and pursued
a legitimate aim was based in part on the existence of clear international
rules making provision for the immunity, which had been implemented
by the German national courts.
The finding that the interference was proportionate was based
on the existence of reasonable alternative means to protect effectively
the applicant's rights under the Convention, through an independent
The existence of this mechanism meant that the very essence of
the right of access to court had not been impaired.
3.8 In relation to a number of the organisations
provided for in the Bill, immunity from suit is required by international
agreements to which the UK is party, or to which it intends to
become a party. This is the case in relation to EU bodies established
under Title V and Title VI of the TEU.
3.9 The conferring of immunities on certain persons
connected with the ICC implements an obligation under the Agreement
on the Privileges and Immunities of the International Criminal
Court 2002. The
conferring of immunities on family members of the European Court
of Human Rights in clause 7 of the Bill enables the UK to withdraw
its current reservation to the Sixth Protocol to the General Agreement
on the Privileges and Immunities of the Council of Europe.
The provisions in relation to ITCLOS permit the UK to ratify the
Agreement on the Privileges and Immunities of the International
Tribunal of the Law of the Sea.
3.10 A number of the 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.
3.11 In relation to the OSCE, although the explanatory
notes point out that the conferring of immunity follows the recommendations
of the OSCE Ad Hoc Group of Legal and Other Experts, it is similarly
unclear that there is any legal requirement to confer such immunity.
3.12 We have written to the Foreign and Commonwealth
Office asking for confirmation of whether it is considered that
each of the immunities conferred by the Bill is required by a
rule of international law; and in any cases where there is no
such requirement, the reasons why the department considers that
the interference with Article 6 rights pursues a legitimate aim.
3.13 We have also asked the Minister for clarification
as to whether sufficient 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 these
alternative mechanisms ensure that the very essence of the right
of access to court is not impaired.