Joint Committee On Human Rights Fourth Report


3 International Organisations Bill

Date introduced to the House of Lords

Date introduced to the House of Commons

Current Bill Number

Previous Reports

24 November 2004

House of Lords 2

None

Background

3.1 The International Organisations Bill was introduced in the House of Lords on 24 November 2004. A statement has been made by Baroness Symons of Vernham Dean under section 19 (1) (a) of the Human Rights Act 1998 that, in her view, the provisions of the Bill are compatible with Convention rights. Explanatory Notes to the Bill have been published.[137] These do not contain any analysis of the Bill's human rights compatibility.

The Effect of the Bill

3.2 The Bill confers privileges and immunities from suit on a number of international organisations and bodies which operate in the UK, and certain individuals connected to those organisations and bodies. The organisations on which immunities are conferred by the Bill include the Commonwealth Secretariat (clause 1); the Commonwealth Secretariat Arbitral Tribunal (CSAT) (clause 2); the Organisation for Security and Co-operation in Europe (OSCE) (clause 4); certain EU bodies (clause 5); the International Criminal Court (ICC) (clause 6); the European Court of Human Rights (ECtHR) (clause 7); and the International Tribunal for the Law of the Sea (ITCLOS) (clause 8).

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.[138] 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.[139]

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.[140] In order for such limitations to be permissible, they must not impair the very essence of the right of access to court.[141]

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[142] but the existence of such international rules does not of itself absolve the state of its obligations to comply with rights under Article 6.[143] 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.[144]

3.7 In the case of Waite and Kennedy v Germany,[145] 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.[146] 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 appeals board.[147] 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.[148]

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.[149] 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.[150] 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.[151]

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",[152] 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.[153]

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.


137   HL Bill 2-EN (Hereafter 'EN') Back

138   Golder v UK (1979-80) 1 EHRR 524 Back

139   ibid. Back

140   Fayed v UK(1994) 18 EHRR 393; Osman v UK (2000) 29 EHRR 245 Back

141   Waite and Kennedy v Germany, App. No. 26083/94 para. 59 Back

142   ibid., para. 57 Back

143   ibid., para. 67 Back

144   ibid., para. 64 Back

145   ibid. Back

146   ibid., paras. 57 and 63 Back

147   Waite and Kennedy v Germany, App. No. 26083/94, paras. 68-69 Back

148   EN para. 7 Back

149   EN para. 8  Back

150   EN para. 9  Back

151   EN para. 10  Back

152   EN para. 5 Back

153   Appendix 3 Back


 
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