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Lord Stoddart of Swindon: I support the noble Lord, Lord Pearson, in his remarks. It is very difficult for people who are of a sceptical view, not only about Europe but also about everything else, to deal with Bills that currently are flowing towards us at quite a heavy rate and to ensure that no Bill eludes our scrutiny. Unfortunately, like the noble Lord, this Bill eluded my scrutinising eye. It was not until I read the speech made by the noble Lord, Lord Wallace, that I realised that here was something of which we should have taken notice, but had not.

When I read the speech made by the noble Lord, Lord Wallace, and saw that there was a reference to the noble Lord, Lord Pearson of Rannoch, I knew that there must be more in the Bill than I originally thought. Of course, I was right; and the noble Lord, Lord Wallace, was right. He did an excellent job at Second Reading querying not only points about the Commonwealth Secretariat but also querying in general whether we need all those immunities for other people as well as for the Commonwealth and, by extending those immunities, whether we are not, as in the Soviet Union, creating a new elite. The noble Lord was right to be worried about that.

So he and I, coming from, perhaps I may say, different spectra of the European argument, have reached the same conclusion. If we are not careful, we will create an elite that eventually will annoy the people of this country. They may ask what exactly is going on. Why is it that not only certain diplomats but also other members of international organisations should have privileges, which they might understand, but why are those privileges being extended to their wives, their children and even their servants?

The people who recognised that there was more in this Bill than the noble Lord, Lord Pearson, and I thought, because we did not notice it, have done a great service in bringing it to the attention of the House of Lords, to the people of the country and in waking the noble Lord, Lord Pearson, and myself up.

As regards the amendment moved by the noble Baroness, Lady Falkner, I should like to ask whether the staff of the Commonwealth Secretariat were made aware of the proposed changes to their rights and were they consulted? If they were not, they should have been. If they were, I would like to know exactly their response. If there was a response, what notice did the Government take of it? Nowadays, people working for an organisation ought to be consulted. Perhaps the noble Baroness could answer that question.
 
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As regards Amendment No. 3, the noble Baroness said that of course we will have some affirmative orders. That is all very well. It sounds very good. The problem is that affirmative orders cannot be amended: they can only be rejected. If an affirmative order is rejected, the Government say, "Well, you really must not do that. It is not done". The House of Commons never does it: the House of Lords, seldom, if ever, does it. Therefore, we are presented with a fait accompli. It sounds very good, but our power over affirmative orders is very limited, although perhaps it is less limited in this House than in the House of Commons.

That is not a good argument for giving government, once again, Henry VIII powers. There is a continual extension of Henry VIII powers being given to governments who simply cannot be trusted to use such powers properly. I said to my noble friend Lord Pearson that he was slipping when he praised the Government. I said that because you should never praise governments, because praise only encourages them to bring forward more laws and worse laws. Never praise the Government: praise the Opposition if you like, but do not praise the Government. That simply is not done in decent democratic circles.

I have one final question, asked by the noble Lord, Lord Pearson, which I think was not answered. It is an important question because this is a House of Lords Bill; it is not a House of Commons Bill. Let us suppose that the House of Lords rejects the Bill and it goes to the Commons who cannot amend it. It will then come back and we shall insist on our amendments. Because it is a House of Lords Bill, the Parliament Act cannot be used. Under those circumstances, since the Government say that we have these international obligations to which we must agree, what will be the position if Parliament, through the House of Lords, says, "No, you are not going to have them"?

Lord Wallace of Saltaire: I should just wish to mark that this is the first occasion that I can recall where I have stood shoulder to shoulder with the noble Lords, Lord Pearson of Rannoch and Lord Stoddart of Swindon. I trust that it will not be entirely the last.

I would also wish to mark that I, too, am sceptical of a number of things, but I am sceptical of the principle of sovereignty and the whole idea of the nation state. Therefore, I share a certain amount of scepticism of a system of diplomatic law that has grown up for a system of sovereign states as created in the 18th and 19th centuries. As it happens, I have taught a course on international institutions at the London School of Economics in recent years.

I am deeply conscious of the proliferation of international organisations and agencies. We will come to the proliferation of the European agencies later. I therefore want to question the extent to which we should assimilate additional international organisations into the arrangements made for—perhaps I may quote the Minister—"many other international organisations based in the United Kingdom".
 
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I had hoped that we might use this Committee stage to press the Government to consider more broadly the issue of what diplomatic privileges should be extended to international and European agencies. Of course, we accept that that is not something which the United Kingdom can change unilaterally. But it is an issue—I have spoken to people in the Commission and elsewhere—that the European Union might change, which we might want to raise in the whole context of UN reform because it is an important issue and will become more of an important issue as the proliferation of global and regional organisations continues.

I share the views of the noble Lord, Lord Pearson of Rannoch, about the dangers of the proliferation of a privileged class. The European Commission is in some ways already a privileged class in Europe, which is one of the reasons why the EC attracts a degree of criticism. I think you are all aware that I have to declare an interest as the dependent spouse of someone employed by an intergovernmental organisation. I am conscious in that respect that I benefit from this, but we have to raise some very large issues from it. I hope that on Report or at Third Reading, the Government may be able to tell us how far they are willing to start a process of reconsideration of what British policies should be in the future regarding European and international agencies and the diplomatic immunities that they attract.

Looking very rapidly through the international conventions on that, it seems that they are fitted for a pre-globalisation age. Now that we are in a world in which interdependence is far closer than before, we ought to question how far this goes. My noble friend Lord Roper has drawn attention to a Written Answer on 10 January to the noble Lord, Lord Marlesford, which, if I understand correctly, tells us that there are some 3,000 officials of intergovernmental organisations currently based in the United Kingdom, plus roughly the same number of dependants—that is, some 6,000 people living in this privileged position—of whom 500 of the 3,000 are estimated to be British citizens. I guess that that figure is also likely to grow.

The intergovernmental organisation of which my wife is a part is based in Italy. It has a substantial number of Italians working for it, some of whom, if I understand correctly, are still receiving allowances for having been transferred from Brussels to a foreign posting. That is the sort of issues that we get into: I have no doubt that that applies to most international agencies. Again, I share with the noble Lord, Lord Pearson, the view that we should question that. One has therefore necessarily to question the general principle because we know that we cannot change the law unilaterally.

Baroness Falkner of Margravine: I shall pick up on many of the points that have been made in the debate. The Minister drew our attention to the fact that the Government seek to extend the arrangements for the Commonwealth Secretariat to those existing for other international organisations based in London. I refer her to col. 1469 of the Official Report of 16 December,
 
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when we asked the Government to tell us of other examples that existed in which access to justice was similarly restricted. On that occasion, I said:

"It would also be illuminating to hear whether, in such cases that might exist, immunities have been further extended to restrict rights since the Human Rights Act came into force".—[Official Report, 16/12/04; col. 1469.]

We still look forward to hearing the Minister's response to that.

The issue was raised of the role of statute 6.2 of the tribunal, asking for conformity with Harare principles. As one who in my time at the secretariat was called to the unenviable task of clarifying for Ministers what the Harare principles stood for, in terms of what we can do in relation to member governments, I remind the Committee that those are political principles. They are to do with human rights, good governance and democracy, while what we are discussing today are legal employment rights, which is rather a different kettle of fish.

The noble Baroness, Lady Rawlings, at Second Reading at col. 1474, asked whether the Joint Committee on Human Rights could be asked to report on the issue while the Bill was passing through the House. Will the Minister reassure us that advice will be taken from the Joint Committee, as it is a duty of that body to advise on Bills? We would be grateful to hear what its views were on the matter.

The noble Lord, Lord Stoddart, has raised various apposite points on staff consultation. The genesis of the changes, as I explained, were the court case Selina Mohsin v Commonwealth Secretariat. Subsequent to the ruling in that case, there were attempts to change the agreed memorandum. The intention to change the agreed memorandum was set out in a new annexe C, and thus was shared with member governments but never disclosed to Commonwealth Secretariat staff. I understand that it has never yet been made available to those staff. As I understand it, annexe C was not even agreed at a meeting of Commonwealth heads of government, but appeared in the form of a document circulated to governments on an individual basis. A document being sent to member governments is substantively different from a consensus-based decision being taken in a committee of member governments.

It is perhaps understandable that Commonwealth member governments agreed to the blanket immunity, as the message given to them was that staff, due to the Selina Mohsin judgment, were subject to English employment law, and that that exposed the secretariat to the risk of expensive court proceedings in the United Kingdom. The communication with staff on the issue was set forth in a circular sent by the Secretary-General to the staff on 5 April 2004, in which he sought to justify the need for a full immunity in reference to the Mohsin case. He felt that, while the court ruled against the Commonwealth Secretariat on the jurisdictional issue, on the facts the judge found in favour of the secretariat. However, as he explained, governments needed to be convinced that the UK court did not have jurisdiction, and that one country's employment law did not prevail
 
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over that of 53 others. Therefore, the problem had to be resolved. Hence, he argued for the management's support for the legislative change that the UK Government was undertaking.

As we know, there has been no attempt at all on the part of member governments, in the light of their agreement to annexe C, to find out the views of secretariat staff. In my own case, representing the staff association, we sought several times to have sight of the annexe, but were unable to do so. The noble Lord, Lord Stoddart, made the important point that in this day and age staff should be seen as a party to these sorts of changes in employment contracts. In this case, we understand that they were not seen as a party.

Overall, it seems to me with regard to this clause that the Government are changing legislation that has worked well over many years. The 1966 Act was a careful and considered piece of legislation, aimed at preserving the international nature of the organisation and giving CSAT primacy in disputes to the exclusion of English courts. The 1966 Act achieves those aims; the sole effect of the Bill will be to remove from staff and third parties in commercial disputes the protection of rules of natural justice in the event, however unlikely it is, that members of CSAT are found to be lacking in independence or are biased.

The Minister mentioned her conviction that CSAT would be independent. However, there is also the issue that if members chose, on occasions, possibly because of time constraints, or because of the judgment that has come from the tribunal, not to take witness statements or evidence, the ability to make a case on the part of the person going before a tribunal is lost. That is why it has been important to have the safeguard. On our side, we feel that while governments are meant to approach legislation to give effect to the Human Rights Act, by promoting this Bill, the UK Government appears to be willing to deprive what is, I admit, a very small number of staff, of that protection.

Incidentally, I wish slightly to correct the statement made by my noble friend Lord Wallace. He said that 65 per cent of staff were British citizens, but in fact 65 per cent are either British citizens or they are residents of the United Kingdom. That is a point of clarification. However, in the light of the Human Rights Act, it would be a very sad day if even a small number of staff were treated less favourably than other citizens of the UK.

The final point relates to the Minister's comment that she believed that the tribunal would take UK law into consideration. However, in terms of UK employment rights, on the whole, UK secretariat employment rights are significantly lesser than those accorded by the UK in general to its employees.

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