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Baroness Crawley: My Lords, this amendment would remove from the Bill the proposed extension of immunity to be conferred on the Commonwealth Secretariat.

At the moment, under the Commonwealth Secretariat Act 1966, the Commonwealth Secretariat has immunity from the jurisdiction of the UK courts subject to three specific exceptions: first, cases in which the immunity is waived by the Secretary-General;
 
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secondly, cases concerning motor accidents or motor traffic offences; and, thirdly—addressing the point we are talking about—where arbitration proceedings are taken in respect of a written contract with the secretariat.

The last exception concerning arbitration proceedings has been interpreted by the courts in the UK as allowing our courts to exercise supervisory jurisdiction over the arbitration proceedings of the Commonwealth Secretariat Arbitral Tribunal (CSAT). The purpose of Clause 1(1)(b) is to remove this particular exception to immunity in order to bring the secretariat's immunity provisions in line with those enjoyed by many other international organisations based in the United Kingdom.

This new and extended immunity will not, however, apply to written contracts entered into by or on behalf of the secretariat before Clause 1 enters into force. For these contracts, the courts will continue to have supervisory jurisdiction.

The effect of the proposed amendment would be that the immunity currently enjoyed by the Commonwealth Secretariat could not be extended to bring it into line with that enjoyed by other international organisations based in the UK. Examples of other international organisations which already enjoy the immunity that we are seeking to extend to the Commonwealth Secretariat are the International Maritime Organisation, the International Seabed Authority, the Organisation for the Prohibition of Chemical Weapons and the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organisation.

The secretariat is the primary inter-governmental organisation of the Commonwealth. It facilitates consultations and co-operation between Commonwealth members and provides policy advice and technical assistance aimed at promoting the well-being and development of member countries. It is important that the UK does not treat the Commonwealth Secretariat unfavourably by conferring more limited immunity than that conferred on other international organisations. The Bill is doing nothing more than bringing the secretariat's immunity from jurisdiction into line with the treatment accorded to a number of international organisations based in the UK and abroad.

3.15 p.m.

The noble Baroness, Lady Falkner, asked whether the revised agreed memorandum of the Commonwealth Secretariat imposes international legal obligations to confer privileges and immunities. The UK Government consider themselves bound to implement the revised agreed memorandum which has been agreed between the Commonwealth governments and evidences a commitment by the United Kingdom that the Commonwealth Secretariat should be granted the privileges and immunities set out therein. We have always acted on this basis. To change our practice could be very damaging to our relations with Commonwealth governments.

The noble Baroness also raised her concerns about human rights issues. She referred to correspondence between the Joint Committee and the Minister. She
 
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spoke of concerns to do with an adequate alternative remedy to CSAT applicants. I would say in reply that the important point is that the statute of CSAT already makes provision for a fair and independent procedure which is consistent with fundamental human rights. Article 6.2 of the statute reads:

I hope that that reassures the noble Baroness that human rights are very much at the forefront of the changes we are proposing to make.

Baroness Falkner of Margravine: My Lords, I thank the Minister for that reply. I would be more reassured if the independence and impartiality of the tribunal were guaranteed more rigorously by access to justice rather than by the Harare principles which, after all, are political principles and thus have no bearing in law.

However, I am somewhat reassured by what the Minister has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Commonwealth Secretariat Arbitral Panel]:

Baroness Rawlings moved Amendment No. 2:

The noble Baroness said: My Lords, first, I should like to thank the noble Baroness, Lady Crawley, the noble Lord, Lord Triesman, and the Bill team for the detailed letters that I have received in the run-up to the Report stage.

I make no apology for tabling this amendment a second time. The noble Baroness, Lady Crawley, assured me that the,

However, I am still not happy with the possible situation that may arise if and when such a decision is taken.

This amendment 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. My concern is that a successor could be one with quite a different emphasis on what it does, albeit that it may include arbitral tribunal duties. Although Parliament would have the opportunity to discuss the potential successor by affirmative order, it would be denied the opportunity to amend any provisions for the new body unless it threw out the order altogether—something that we in this House rarely do.

The Minister argued in Committee that it was necessary to be able to confer the immunities and privileges in a speedy manner should a successor be established, suggesting that a failure to do so may act against our commitments under the agreed
 
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memorandum. First, can the Minister explain the time span she envisages as "speedy"? One of the first questions I asked at the start of the Bill was why it had taken so long to bring it about when it referred to international agreements signed up to five years ago. As the Minister implied, we have thus been contravening these agreements—or at least parts of them—until now. I am sure that similar leeway would be allowed should a problem of timetabling a Bill arise to award any immunities and privileges to a successor body.

Secondly, if there were to be a successor body, I am sure that it would take time to discuss, set up and implement, during which the government of the day could timetable primary legislation to award the privileges and immunities agreed while allowing Parliament to scrutinise and amend any new provisions for the new body. This would not break our commitments under the memorandum; nor would we have to ask the Commonwealth governments to change the agreed memorandum as the noble Baroness suggested. In that way we would have a check and balance on potential mission creep of a body which is awarded privileges and immunities. This is an important question regarding our right and powers to scrutinise such changes. I beg to move.

Baroness Crawley: My Lords, the result of the amendment would be to remove from the Bill the enabling provision to allow for the same immunity to be conferred on the members of any successor body to the Commonwealth Secretariat Arbitral Tribunal, should one be established in the future.

I am afraid that I am going to disappoint the noble Baroness by reiterating the arguments that I made at the Grand Committee stage of the Bill, when I said that the Commonwealth Secretariat has not indicated that it is considering setting-up any successor bodies to CSAT. However, 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 because the agreed memorandum establishing the Commonwealth Secretariat and agreed, as the noble Baroness knows, at the Commonwealth Heads of Government Meeting in 1965, and revised in 2002, specifically contemplates the possibility of a successor body. So we have to be prepared.

It is important that the UK has the power to confer privileges and immunities speedily on any successor body should one ever be established. Failure to make provision for such an eventuality might one day result in the UK acting in a manner contrary to its commitments in the agreed memorandum. The most practical way to avoid this 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.

As noble Lords will know, they will have an opportunity to consider and debate any such change proposed in the future because such an order, as the
 
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noble Baroness said, will have to be approved by resolution of each House. If we were very unhappy, for instance, with any new structure that should come before us in the future, we would, by that affirmative resolution, be able to throw out that new structure.

If the amendment were agreed, to prevent the risk of the UK perhaps having to act in a manner contrary to its commitments in the memorandum the UK might have to ask Commonwealth governments to change the agreed memorandum. Noble Lords will know that there is no guarantee that such agreement from 53 Commonwealth governments would be forthcoming. For those reasons we are opposed to the amendment.

The noble Baroness, Lady Rawlings, asked me what I meant by "speedy". This refers to the fact that finding time for primary legislation often means waiting months, perhaps years, for the right slot in the legislative timetable to appear, whereas if we are ready, waiting and prepared with secondary legislation available we would not fall outside our commitments to the Commonwealth in the agreed memorandum to which we have signed up.


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