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Lord Wallace of Saltaire: It may help if I say a little about the broader approach that we have to the issues behind the Bill, which cut across several amendments. We have some hesitations about the expansion of diplomatic privileges and immunities to new organisations and agencies as they are created. When we come to the European Union, we will want to talk specifically about European agencies; after all, the EU is at the moment creating a very large number of additional agencies.
I have done a certain amount of devilling over the Christmas period on the question of diplomatic privileges and immunities. I am struck that the international law is created for relations among states and was originally developed in the 18th and 19th centuries for relations among hostile states, when diplomats expected to be in difficult territory and had to be protected from abuses of their rights. International organisations' privileges have been assimilated to the existing law. In many cases, it seems that international organisations are not the same as states. Indeed, paragraph 1830 of the third edition of Schermers and Blokker's International Institutional Law states: "Although such missions"—those of international organisations—
That therefore requires us to question, in the context of the Bill and for future reference, how far diplomatic immunities should be extended to international organisations. It seems sensible to accept that global international organisations, which have to operate across the world in democratic and non-democratic states, need extensive privileges. When we talk about the OSCE, I will therefore suggest that it needs some diplomatic protection. I was in Georgia and South Ossetia this summer and met some OSCE personnel there. I felt pretty insecure, and I am sure that they do in doing their work.
The Commonwealth Secretariat, however, serves a group of democratic states. Those that cease to be democratic stand at risk of being expelled from the Commonwealth, as has happened to Pakistan and Zimbabwe on various occasions. The Commonwealth Secretariat seems to operate in a world in which traditional diplomatic immunities do not have to be extended. Therefore, the question of how far it needs and deserves all the protection is one that we wish to probe. Add to that that the Commonwealth Secretariat has operated in London without the need for the extension of the additional privileges given in the Bill,
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and that 65 per cent of its staff are British citizens. The changes proposed in the Bill seem to require very substantial justification.
Lord Pearson of Rannoch: I regret that this is my first contribution to the passage of this unfortunate Bill. Perhaps it would help if I started by confessing that I and, I think, other Euro-sceptic Members of your Lordships' House were caught napping by the Bill's Second Reading on 16 December. I admit that the Bill had been on the forthcoming business for the some time, but submit that its innocuous title—the International Organisations Bill—is unlikely to have alerted us to its contents. One suspects that that was why such a boring and unhelpful title was chosen.
Be that as it may, my confession stands that we Euro-sceptics were asleep at the switch at Second Reading on 16 December, so did not speak. I suppose that our only excuse is that we have to run our opposition to our membership of the European Union with very little assistance, and it is really not physically possible for us to examine every item that appears on our ever more voluminous Order Paper, or the vast mass of EU laws. Some 80 per cent of all our laws—well over 1,000 per annum—are now visited on us from Brussels.
That said, I still contend that it was sneaky—to put it as kindly as I can—to include the Bill on the Order Paper in a list of other business that looked run-of-the-mill, and to start its Second Reading during the lunch hour at 1.32 p.m. on a Thursday, when the House was not sitting on the Friday and we were rising for the Christmas holiday the following Tuesday. In other words, I congratulate the Government on their subtle handling of the Bill.
Lord Stoddart of Swindon: You are slipping.
Lord Pearson of Rannoch: My noble friend objects to that congratulation, but I trust that it may stand.
I also submit that it is naughty to hold this Committee today, so soon after Second Reading, when I doubt whether the questions raised at Second Reading have yet been answered in correspondence. I may be wrong and the Government may have answered those questions, in which case no doubt the Minister will inform us of that. However, it is certainly true that the two Written Questions that I tabled on 21 December—as soon as possible after I had read with dismay Hansard for 16 December—have not yet been answered. I shall return to those Questions later on the appropriate amendment.
Of course, I admit that the Government are technically in order to hold the Committee today, because 14 days have passed since 16 December, but only three sitting days have passed. As I said, my Written Questions have not been answered, which by the same token they should have been. I have not tabled amendments for today because I was waiting for the Answers before doing so. I have to confess, too, that I was not aware that the Committee had been scheduled for today. Again, I suppose that that
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ignorance is my fault, because the Minute for 21 December did not reach me till yesterday; in it, this Committee was included as new business.
What is clear is that we are granting immunity and tax privileges to a large number of people in the employ of the European Union and other undeserving bodies. It is also pretty clear that the Government—again, they will correct me if I am wrong—have already committed us to this Bill by treaty, so this Parliament has once again become a rubber stamp. If the Minister disagrees, can she tell us what will happen if your Lordships' House were to refuse to pass the Bill?
I shall return to more specific matters on the European Union later, but I look forward to the noble Baroness's answer.
Baroness Crawley: I thank all noble Lords who have spoken for a very interesting and reflective set of contributions. I shall start with the noble Lord, Lord Pearson of Rannoch. I am sorry if he thinks that the Government are naughty; I try very hard not to be naughty. I worry that he devalues Thursday lunchtime, which is a particularly happy time in this House. Business that goes through on Thursday lunchtime is just as valuable as business on any other day of the week. I understand that the Answers to the Questions that he tabled before Christmas are now with his office. I am told by my officials that they were sent there this morning. I apologise for their lateness.
Lord Pearson of Rannoch: I am most grateful to the noble Baroness. My office has not been able to inform me of that happy event. As I said, I shall give her the chance to answer the Questions again when we come to the appropriate amendment.
Baroness Crawley: I thank the noble Lord for that.
I will go through the amendments that we have covered in our debate and will speak first to Amendment No. 2 tabled by the noble Baroness, Lady Falkner, and the noble Lord, Lord Wallace of Saltaire. I cannot accept this amendment on behalf of the Government because we cannot agree to any limitation to the extended immunity conferred on the secretariat under the Act. The Bill simply brings the immunity conferred on the secretariat into line with that conferred on many other international organisations based in the United Kingdom.
Neither can we accept the amendment if its intention is to ensure the fairness of the CSAT dispute settlement procedure by requiring the tribunal to refer to the Human Rights Act 1998 and the Arbitration Act 1996. That was the point made very strongly by the noble Baroness, Lady Falkner. The important point is that the statute of the tribunal already takes into account the need for it to provide a fair and independent procedure. For example, Article 6, paragraph 2, of the statute reads,
"The rules of the Tribunal shall ensure that applications are dealt with in a manner that is independent and impartial and consistent with the Commonwealth Harare Principles relating to fundamental human rights and the independence of the judiciary".
I hope that that goes some of the way to meeting the points made by the noble Baroness about independence.
The noble Baroness also asked about the independence of CSAT in relation to other governments. Although she is correct to say that the Secretary General formally appoints the members of the tribunal under Article 4 of the CSAT statute, those members must first have been selected by the Commonwealth governments on a regionally representative basis. The members, as she will know from her intimate knowledge of this matter, are appointed for four-year terms, which also assists in ensuring their independence. All members of the tribunal are required by the statute to be of high moral character and to have appropriate experience.
The United Kingdom confers immunity from jurisdiction on many international organisations based in the UK and abroad. We are not aware that in those cases any such provision referring to the Human Rights Act and the Arbitration Act is in place and has been included in the relevant legislation. The amendment would therefore undermine that aim of bringing the treatment accorded to the secretariat by the UK into line with that accorded to many international organisations. We want to treat the secretariat as we treat other international organisations—no more, no less.
The amendment appears to concern the applicability of certain legislation to the secretariat, which is a different and separate issue to that of immunity from jurisdiction of the courts. In referring to two particular Acts of Parliament, the amendment seems to suggest that CSAT need not have any regard to UK legislation—which it ought to have. Also, the fact that it refers only to disputes that affect the secretariat staff suggests that the two Acts referred to would have no relevance to the context of disputes with, for example, external contractors, such as companies supplying goods to the secretariat. The amendment refers only to staff. Those points are additional to the reasons that I have already given Committee members about why the amendment is not appropriate.
On Amendment No. 3, let me say from the outset that the Commonwealth Secretariat has not indicated that it is considering setting up any successor bodies to CSAT. I hope that that reassures the noble Baroness, Lady Rawlings, because she raised concerns about that point not only in this debate, but at Second Reading. If the secretariat did so, we would need a very strong say through Parliament in the structure and form of that organisation.
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, however. That is because the memorandum establishing the Commonwealth Secretariat—it was agreed at the Commonwealth Heads of Government Meeting in 1965 and, as the noble Baroness will know, was amended in 2002—specifically contemplates the possibility of a successor body at some time. It is important that the UK has the power speedily to confer privileges and immunities on any successor body, should one ever be established. Failure to make
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provision for that might one day result in the UK acting in a manner contrary to its commitments under the agreed memorandum.
The most practical way to avoid that 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 amending the Commonwealth Secretariat Act 1966 in that way. As all noble Lords will know, such an order would have to be approved by resolution of each House of Parliament before it was made, so there will be a great opportunity for Parliament to consider and debate any such change proposed in future.
If the amendment were agreed there would also be the possibility that, in order to prevent the risk of the UK having to act in a manner contrary to its commitments in the memorandum, the UK might have to ask all the Commonwealth governments to change the agreed memorandum. There is no guarantee that such agreement would be forthcoming. For there to be a successor organisation, Parliament would have to agree to it. In the process of that agreement, a great deal of scrutiny would be on the form that the organisation would take. For those reasons, we are not minded to accept that amendment.
Finally, in response to the opposition to Clause 2 standing part of the Bill, I want to say that the Bill, in according immunity on the presidents and members of CSAT in respect of acts in the course of their official functions for the tribunal and providing an enabling provision to confer the same immunity on members of any successor body, implements a commitment in the agreed memorandum of the Commonwealth Secretariat, revised in 2002. We therefore cannot agree to the proposal.
We do not consider that the immunity to be conferred, which relates to only the official functions of the members of the arbitral tribunal, is out of line with the immunity conferred by the UK on other international organisations and individuals connected with them, based in the UK or abroad. It assists in enabling the members of the tribunal to carry out their official functions independently—which comes to the heart of why we want to bring about these immunities and privileges—without fear of legal action against them as individuals as a result of their work for the tribunal.
While I take very much the point made by the noble Lord, Lord Wallace, about the Commonwealth and democracy and the Commonwealth not wishing to take any governments that prove themselves undemocratic into the fold or to keep them in the fold, there is an enormous number of unofficial problems regarding democracy with many governments. In the run up to eventually expelling a government, such as
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that of Zimbabwe as suggested by the noble Lord, there will be a great deal of undemocratic action perhaps taking place in that country before the final decision is made by the Commonwealth to expel that Government from its counsels.
While the noble Lord has made an interesting point about European organisations versus international and global organisations and democratic governments versus undemocratic governments, I still think that unless we start rewriting the whole of international law in that regard, we have to, today, look to implementing the commitments that we have already made.
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