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Baroness Crawley: I will come back on one point. The noble and gallant Lord criticised the Government for waiting so long to bring this Bill forward. It has not been possible to find a legislative slot until now for this Bill. He will agree that this Bill is in many ways actually welcomed by the Commonwealth Secretariat as being a great step forward, one that he might say is long overdue. In that sense, the inconvenience that he talks about in terms of cost and other bureaucratic terms
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would still not impress on Government legal policy that this was of overriding public benefit to create an exemption in this case.
Lord Craig of Radley: I thank the Minister for her response, I thank other noble Lords who have spoken, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Commonwealth Secretariat Arbitral Tribunal]:
Baroness Falkner of Margravine moved Amendment No. 2:
"(3A) When considering disputes that effect officers and servants of the Commonwealth Secretariat arising from the provisions of this Act, the Commonwealth Secretariat Arbitral Tribunal shall have regard to—
(a) section 1 of the Arbitration Act 1996 (c. 23), and
(b) the Human Rights Act 1998 (c. 42)."
The noble Baroness said: I start by declaring an interest. I worked for the Commonwealth Secretariat for several years, I was vice president of the staff association and in my capacity as vice president I was involved in an arbitral tribunal proceeding of the secretariat.
I have several concerns about this Bill, particularly in relation to this clause. I will give a little background about the changes that will take place here. The Commonwealth Secretariat Arbitral Tribunal is appointed by the Secretary-General. It is remunerated by the Secretary-General, and there does not appear to be any basis on which any other party can have any say in the appointment of the panel. It makes its own decisions as to whether it wishes to take oral evidence, and in the past has chosen not to take oral evidence nor cross examine witnesses.
I will refer here to why these changes are taking place. The background to the case is that a member of staff sought to address contractual disputes within the existing framework of the secretariat. She was dissatisfied with the resolution, and she took her case to English courts in the case Selina Mohsin v Commonwealth Secretariat. In that case, English courts ruled under Lord Justice Steel that in certain very narrow circumstances of contractual disputes that UK courts did have jurisdiction, and they therefore exercised the jurisdiction to hear the case.
This Bill will take away those rights of people who have contracts with the secretariat, which principally affects, in the case that I am talking about, some 300 employees of the secretariat. It will take away their rights in last recourse to take their grievances and disputes to United Kingdom courts.
On Second Reading the Minister said that internal grievance procedures existed and therefore the last resort in terms of natural justice—which was what I was calling for—was not necessarily needed. It was implied that the picture we were painting was too grave
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or too negative. However, people go to a tribunal or court only in last resort. Internal grievance procedures of themselves cannot be enough to effect rights to justice. When all senior and middle-level staff are appointed by the Secretary-General alone, serve on three-year contracts and their contracts are therefore renewed by the Secretary-General alone, it becomes extremely difficult for staff to have complete confidence in internal grievance procedures because the people who sit as judge and jury on their case—senior management—are themselves beholden to the senior manager, the Secretary-General. As regards natural justice, it is important for staff to have access to financial aid. In most cases that I am aware of no financial aid is available. People pay to go to a tribunal, and may undergo extreme financial hardship. It is not as if pools of money are available that they can access. Staff go to a tribunal under extreme circumstances. The effect of the Bill for secretariat staff as regards creating complete immunity from suit is grave.
Several differences arise compared with the position that existed under the Commonwealth Secretariat Act 1966. Staff had no right of access to UK courts save to make a challenge under the 1966 Act if they had grounds to show that the Commonwealth Secretariat Arbitral Tribunal (CSAT) was not independent or was biased or to enforce an award made in their favour by CSAT. Under the Bill staff will have no right of access to the UK courts, or to any court in the world. They will have no right to challenge a CSAT ruling if it is lacking in independence or is biased. I emphasise that that is where the amendment is coming from. Staff will also have no right to go to court to enforce an award should the CSAT ruling not be complied with.
There have been instances where CSAT rulings have not been complied with either in spirit or within the full terms of the ruling. Such precedents are already evident. Therefore, it is difficult to see what possible justification there could be for removing these very limited but fundamentally important rights, or to see how the removal of these rights by widening the immunity and making it a blanket immunity can be justified under the Human Rights Act 1998. This is particularly the case in circumstances where staff play no role in appointing the members of CSAT. The members of CSAT are not appointed independently; that is, they are not appointed by member governments acting together. The power of member governments in that regard is given to the Secretary-General who acts alone in appointing the members of CSAT. The members of CSAT are paid by the Commonwealth Secretariat; that is, the Secretary-General, who I understand sets their terms of remuneration.
As I say, staff do not have a right to a hearing or to give witness if the CSAT decides that is not necessary, and have no right of appeal against a decision, be it to another international such as the ILO, the International Criminal Court or to any other court.
I turn to European law in this regard, having mentioned the Human Rights Act and the European Convention on Human Rights. At our debate on 16 December, the noble Baroness, Lady Rawlings,
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sought to ensure that, if blanket immunity were provided it would conform to these instruments. We argue that it would not.
I refer to a recent case in the European Court of Human Rights on contractual disputes of a similar nature where the court found that a material factor in determining whether immunity should be granted from the jurisdiction of that country was whether applicants had available to them reasonable alternative means to protect effectively their rights under the European Convention on Human Rights. In that particular case, the court found that the applicant did, but ruled that it was a material factor in determining the judgment. The Bill as currently devised does not afford available alternative means of dispute resolution. Therefore, we argue that new subsection (3A) should be inserted. I beg to move.
Baroness Rawlings: I stand to speak to my Amendment No. 3 and the other amendments in this group. With regard to the amendment moved by the noble Baroness, Lady Falkner, I was concerned about points raised in the noble Baroness's speech at Second Reading. Her amendment could address those concerns.
The amendment in my name, like the majority of those I tabled today, is a probing amendment. I asked the noble Baroness, Lady Symons of Vernham Dean, many questions during Second Reading and would like to take the opportunity in Committee to explore those questions further. The amendment as it stands would remove subsections (4) and (5) of Clause 2 of the Bill, which 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.
As the noble Baroness highlighted at Second Reading:
"All these organisations are different; all of them are unique in their own way".—[Official Report, 16/12/04; col. 1475.]
My concern is that any successor would be created due to the need for changes to the current one. These changes could result in a very different successor, unique in its own way, with a different emphasis on what it is to do, albeit that it may include arbitral tribunal duties.
With that possibility in mind, I question whether the Committee should find it satisfactory for this legislation to give a government power to amend the existing law by order in whatever way the Minister of the day "considers appropriate". Although the affirmative order currently in subsection (5) would give us the opportunity to discuss the proposed changes, it would deny Parliament the opportunity to amend any provisions for the new body unless we threw out the order altogether, something Committee Members will know happens only rarely.
Will the Minister inform the Committee whether her department is expecting the Commonwealth Secretariat Arbitral Tribunal to be altered in any way, hence the inclusion of the powers that I have just discussed? If it is to be altered, will the Minister give us more information
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about when and why these changes will be made? Also if, as I suspect, there is nothing to prevent a successor organisation being significantly different, will she not agree that it is our parliamentary duty to be able to scrutinise and if necessary amend any provisions for a new body through primary rather than secondary legislation?
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