§ 6.33 p.m.
§ The Joint Under-Secretary of State for Foreign Affairs (Mr. R. H. Turton)
I beg to move,That an humble Address be presented to Her Majesty, praying that the International Organisations (Immunities and Privileges of the Commission for Technical Co-operation in Africa South of the Sahara) Order, 1955, be made in the form of the draft laid before this House on 14th June.We hope you will agree, Mr. Deputy-Speaker, that for the convenience of the House I should also refer to the three subsequent Motions, which deal with similar subjects, so that we can have one debate on the whole matter.
§ Mr. Deputy-Speaker (Sir Rhys Hopkin Morris)
If that meets with the convenience of the House, it seems to be desirable.
§ Mr. Turton
I am submitting three new draft Orders in Council and one draft Order amending an existing Order in Council, all of which it is proposed, should be made under the International Organisations (Immunities and Privileges) Act, 1950. Section 6 of that Act laid down that Orders made under it should be laid before Parliament in draft and should not be submitted to Her Majesty, except in pursuance of an Address presented by each House of Parliament praying that the Orders in Council should be made.
These draft Orders in Council, which have been laid before both Houses of Parliament, are designed to fulfil certain obligations which Her Majesty's Government have undertaken, or desire to undertake, as a result of our membership of the following organisations, the first three of which have established, or will establish, a headquarters in the United Kingdom. The first is the Intergovernmental Maritime Consultative Organisation, the second is the Commission for Technical Co-operation in Africa South of the Sahara, the third is Western European Union, and the fourth is the World Health Organisation. The Order relating to the World Health Organisation merely amends an existing Order in Council.
I want to turn to a detailed examination of the individual draft Orders. To take the first, the Intergovernmental 462 Maritime Consultative Organisation, this Order is substantially similar to many Orders in Council that have previously been made in respect of Specialised Agencies to which the General Convention applies. It gives the same immunities and privileges as have been given before. The constitutive Convention was signed at Geneva on 6th March, 1948, and was ratified by Her Majesty's Government on 14th February, 1949.
The Convention does not come into force until twenty-one States have become parties. At present, seventeen States have ratified it and the Organisation is expected to establish its headquarters in London directly the other four States have ratified. The secretariat of the Organisation will probably consist of a secretary-general and twelve permanent international staff. Only the secretary-general will be entitled to the full range of privileges and immunities appropriate to a high official, as contemplated in Part Il of the Schedule to the 1950 Act.
Taking, next, the draft International Organisations Immunities and Privileges (World Health Organisation) Order, this is required to enable Her Majesty's Government to extend to representatives of associate members of the World Health Organisation those immunities and privileges already granted by Article 8 of the original Order to representatives of members of the Organisation and persons designated to serve on the executive board of the Organisation. This extension is required to enable Her Majesty's Government to accept and apply the revised Annexe VII to the Convention on Privileges and Immunities for Specialised Agencies.
There are at present only four associate members of the World Health Organisation. They are the Federation of Rhodesia and Nyasaland, Spanish Morocco, French Morocco and Tunisia. In the past it has been the habit of associate members to send two representatives to a meeting and, therefore, the total number of persons likely to be involved, should the World Health Organisation come to London, would be eight. In the past, the World Health Organisation has never held a meeting in London, but it is possible that in the future it might hold a meeting in London and for that reason I ask that this Order be agreed to by the House.
463 The third Order deals with immunities and privileges for the Commission for Technical Co-operation in Africa South of the Sahara. This is merely a limited Order which confers on the Commission the legal capacities of a body corporate as required by Article 6 of the Agreement establishing the Commission. The Agreement was signed on 18th January, 1954, and was ratified by Her Majesty's Government on 12th April, 1954. It is expected to enter into force shortly—as soon as the six member Governments have deposited their instruments of ratification, or notices of approval. These countries are Belgium, France, the Federation of Rhodesia and Nyasaland, the Union of South Africa, Portugal and the United Kingdom. Up till now four of these members have ratified.
The secretariat of the Commission will be established in London, where it is already functioning on a provisional basis. In this instance, the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) will be glad to notice that no grant of immunity from jurisdiction or exemption from tax is involved, either for the Commission or its staff. The grant of legal capacities will merely confer on the Commission such attributes as the right to acquire property, to engage and employ staff, etc., in its own name.
Finally, I come to the Draft International Organisations (Immunities and Privileges of Western European Union) Order. I must make it absolutely plain that this Order, with the others, has been before the Select Committee on Statutory Instruments and the Committee has asked for an explanation of certain provisions in the Order. It is my duty to point out that fact to the House. I will furnish the explanation which has already been furnished to the Select Committee. There is an urgent need for the Order and I hope that, in all the circumstances, the House will approve it. However, if hon. Members do not wish to take that course I shall quite understand and I suggest that the debate on the Order should be adjourned, though that will cause inconvenience to certain members of the Western European Union. I therefore hope that, on reflection, the House will be satisfied with my explanation.
Western European Union was established by the Protocols to the Brussels 464 Treaties signed at Paris on 23rd October, 1954. It has its seat in London. It has taken the place of the Brussels Treaty Permanent Commission as the Organisation established for the purpose of the Brussels Treaty, as modified and completed by these Protocols.
Immunities and privileges were accorded with respect to the Brussels Treaty Permanent Commission, which also had its seat in London, by the Diplomatic Privileges (Brussels Treaty Permanent Commission) Order in Council of 1948, and the Diplomatic Privileges (Brussels Treaty Permanent Commission) (Amendment No. 2) Order of 1949. We require the present Order to enable Her Majesty's Government to ratify the Agreement on the Status of Western European Union, National Representatives and International Staff, which was signed in Paris on 11th May, 1955. The present Order will also revoke the previous Orders.
The provisions of the Agreement require that Western European Union shall have the legal capacity of a body corporate and that certain immunities and privileges shall be accorded in connection with the Organisation. They are broadly similar to those accorded in respect of other international organisations of which Her Majesty's Government are members, in particular, the North Atlantic Treaty Organisation.
The Order has this distinctive feature: it grants exemption from Income Tax to the officials of the Organisation with retrospective effect. If the Order is approved, they will have the privilege of exemption from Income Tax dated back to 6th May, 1955, the date of entry into force of the Protocols constituting the Organisation. There are precedents for this, because Article 12 of the 1954 Order dealing with the Customs Co-operation Council gave a similar exemption of Income Tax that was retrospective in character. So did Article 14 (b) of the Draft International Organisations (Immunities and Privileges of the North Atlantic Treaty Organisation) Order, 1954, and the International Wheat Council Order, 1953.
The Act under which we operate contains no express provision either authorising or prohibiting Orders in Council made under it to be given retrospective effect. Therefore, the question to be determined is whether, on the true interpretation of the Act, it authorises Orders in 465 Council to be made with retrospective effect. I submit to the House that those three precedents, when the House gave exemption of taxation with retrospective effect, constitute a valid reason why this Order should be approved.
It was clearly contemplated that Her Majesty's Government should become a member of this Organisation before the date on which the Order is made. After all, the date of 6th May was well before 11th May when the Agreement was made. It would not have been possible to have brought in the Order before 11th May. For that reason, I hope that the House will allow the Order to be passed.
It will be realised that those members of the staff of Western European Union who were members of the Brussels Treaty Permanent Commission will, in fact, have been enjoying this exemption from tax up to the time when the Brussels Treaty Permanent Commission ceased to act. Therefore, for those who were members of the Brussels Treaty Permanent Commission, the effect of the Order will be to continue their privileges from the time when the Commission ceased to the next day when the Western European Union came into force.
The size of the secretariat of Western European Union in London will depend to some extent on the proportions and importance which may be assumed by its principal subsidiary body, the Arms Control Agency. I always try, when I explain diplomatic immunities and privileges, to give the House an idea of the number of persons affected by an Order. I am in the difficulty that the organisation of the Agency is still under discussion, and the size of the London secretariat cannot be defined at the moment. However, so far as can be foreseen, it is likely to comprise about fifty officials, of whom probably not more than four will receive the full range of privileges and immunities contemplated by Part II of the Schedule to the 1950 Act.
I hope that that explanation of the four Orders will satisfy the House that they are necessary, and that in the case of the Western European Union the House, notwithstanding the fact that an explanation has been asked for in respect of that Order, as it was in respect of the precedent Orders by the Select Committee, will still give approval to it.
§ 6.50 p.m.
§ Sir Lynn Ungoed-Thomas (Leicester, North-East)
The draft Orders, taken as a whole, are ones which I should have thought ought to receive the approval of the House. As far as I am concerned, questions of detail are involved in the case of only two of them, and then there is the rather more important point of principle to which the right hon. Gentleman has just referred in connection with the Western European Union Order.
Speaking for myself, I have never felt any great difficulty about retrospective legislation as a matter of principle. It seems to me, and always has seemed to me, to be a matter which should be dealt with on its merits in each individual case. Therefore, speaking for myself, on the political aspect, I do not feel any difficulty about the retrospective provisions of the Western European Union Order.
I now come to the legal aspect of the provision. As the right hon. Gentleman has indicated, the Act under which the Order is made is in quite general terms, not providing expressly for or against a retrospective Order. That, surely, is his own risk. If the Government choose to bring before the House an Order for approval which is not within the terms of the Statute under which it is purported to be made, it is no use invoking the views of the Opposition about it. We can speak about it politically, saying whether we have any political objection or no political objection, but the validity of the Order is a matter which the courts will have to decide in an appropriate case. If the Government wish to take the risk of the Order not being within the Statute, that is a matter the brunt of which they will have to bear or may have to bear in due course. Therefore, I do not see that it is any part o' the function of the Opposition to oppose the Order merely upon the ground that a court of law may or may not hold that it is ultra vires the Statute under which it is made.
I have, however, some other questions arising from the Western European Union Order. They are short questions of detail which are merely instances illustrating the general approach which we have already indicated at some length in the course of the afternoon to the Orders in general.
Taking the Western European Union Order first, I see, in Article 2, which deals with immunity from suit and legal 467 process, the provision in the last sentence thatNo waiver of immunity shall be deemed to extend to any measure of execution or detention of property.I appreciate that that is in the Order because it is in the Convention on which the Order is based, but I cannot see why there is a provision in the Order, or in the Convention upon which the Order is based, excluding waiver in those cases. It seems senseless and unjustifiable, and I should like to know what justification there can be for such a provision, if it can be furnished.
Article 8 contains what might be another ultra vires provision. We have there the provision that every representative shall enjoy immunity from arrest, and so on. In paragraph (iii) we have the provision that…'representative' shall be deemed to include …Advisers, Technical experts.I understand that the paragraph is based upon Section 1 (2, b, i) of the International Organisations (Immunities and Privileges) Act, 1950. I should have thought that it was, at any rate, questionable whether advisers and technical experts come within the terms of the subsection.
The subsection refers toany persons who are representatives (whether of Governments or not) on any organ of the organisation or are members of any committee of the organisation or of an organ thereof.I should hardly have thought that advisers and technical experts would have come within that description. I do not know whether the Law Officers have considered the point. Again, that is merely a matter of ultra vires the risk in respect of which, is, of course, on the Government. I very much doubt whether those persons come within the terms of the 1950 Statute at all.
Article 9 provides that clerical staff shall enjoyInviolability for all papers and documents.Surely that is a most extraordinarily and unnecessarily wide provision. It is not limited to official papers and documents, as are other parts of the Order. It is:Inviolability for all papers and documents.In, for instance, Article 14 (b) the inviolability of papers and documents is limited to the work on which the person is engaged for the organisation. I should 468 have thought that a similar limitation should be applied in Article 9 (i, b).
I suppose the Article, which, so far as I can see, would cover British subjects as well as foreigners, would mean that all the papers of anybody on the staff of the organisation who was a British subject would have inviolability although the papers were not official ones. For instance, if there was a personal action against such a person, it seems that he would be entitled to claim privilege and not have to disclose such papers on discovery in the action. It is an extraordinarily wide provision. If I am right in my interpretation of the Article, it is utterly unjustifiable and is a bad instance of the kind of extravagant immunity about which we have been objecting during the course of the afternoon.
In Article 14 immunity is conferred upon… the Secretary-General of the Organisation, the Deputy Secretaries-General, the Director of the Armaments Control Agency and such other permanent officials of similar rank as may be specified by the Council of the Organisation…As I understand it, under the Act—I believe it is Section 1 (2,b, ii)—the number of the officers of the organisation has to be specified in the Order. That was provided in order to enable the House to consider whether the immunities should be conferred if the numbers upon whom they were to be conferred were unnecessarily large. In this Order we have no indication at all of the number of the officers of the organisation upon whom the immunity is to be conferred. The provision in the Order is such that it might well be ultra vires.
Later in the Article, in paragraph (c), there is conferred upon an officer who is a citizen of the United Kingdom and Colonies,As from the sixth day of May, 1955, exemption from income tax in respect of emoluments received by him as an officer of the Organisation.That is the one provision which, on the Second Reading of the German Conventions Bill, the right hon. Gentleman himself instanced as a case in which no immunity at all should be conferred, because as he said, it would be quite improper, or, to quote his words,It is quite right that every British person should pay his Income Tax and it is very 469 unfortunate when we find people evading that Income Tax."—[OFFICIAL REPORT, 20th June, 1955; Vol. 542, c. 1060.]But what the right hon. Gentleman is doing here is to provide that very immunity from Income Tax which he found so objectionable on principle when he spoke on the German Conventions Bill.
I do not see why this privilege should be conferred upon a British subject. Perhaps the right hon. Gentleman will be good enough to explain why this extraordinary course is taken in this Order. Again, in Article 16 (b) exemption from Income Tax is conferred onall officials of the Organisation of categories specified by the Council of the Organisation.This apparently applies to United Kingdom and colonial citizens, and is open to precisely the same objection as Article 14 (c).
In his observations on the Bill which we have just been considering, the right hon. Gentleman made some play with the list of members whose names and the particulars about whom had to be published. In Article 17, provision is made for the publication of a list. But that provision does not extend to the officials who are specified in Article 16. I appreciate that the 1950 Act does not make it necessary for the names and particulars of officials specified in Article 16 to be published, but it does say that in their case they may be published.
I should say that it is precisely in the Article 16 category in which it is most necessary to publish the particulars, for this reason: the officials who are to have immunity under Article 16 areall officials of the Organisation of categories specified by the Council of the Organisation.It is left entirely to the Council of the Organisation to say who shall have these advantages, whereas in other parts of the Order anybody can see from the Order the categories of persons who are to have the advantages. Under Article 16, they are the very persons about whom no information of any kind is available. I should have thought that they were the very people concerning whom the list should be published in accordance with Article 17.
470 I wish to ask one or two questions on the Maritime Consultative Organisation. The same question arises about advisers as arises in connection with the Western European Order, and the Article here is Article 8 (b, iii). Article 8 (b, iv) says:The provisions in the preceding paragraphs of this Article shall not confer any immunity or privilege on any person…who is a citizen of the United Kingdom and Colonies.This, again, is an instance where immunity is needed as much by a citizen of the United Kingdom and Colonies as by anybody who is not such a citizen, particularly, of course, with reference to the immunity from arrest which is provided in this Article.
In Article 9 of the Order, the Secretary-General is given complete immunityin respect of himself, his spouse and his childreneven though, as I understand it, he may be a citizen of the United Kingdom and Colonies. Therefore, the exception of the United Kingdom and Colonies does not apply in his case. Though it is considered necessary in the case of the Secretary-General, no other officials of the Organisation has immunity even fromlegal process in respect of words spoken or written and things done or omitted to be done by them in the course of the performance of their official duties.That seems to be a quite unjustifiable discrimination.
The same difficulty about Income Tax to which I referred on the Western European Order arises under Article 10 of this Order. These are all points of detail which illustrate our criticisms of the Bills and of the Orders which have been made in connection with these immunities and privileges. They are instances in which it appears to me that the immunity conferred is unjustified or goes further than is necessary, or, in certain cases affecting citizens of the United Kingdom and Colonies, are instances where immunity which should be conferred is not, in fact, conferred.
§ 7.6 p.m.
§ Mr. Turton
I will try to answer the hon. and learned Gentleman's questions on these Orders. He said that he was surprised at the Western European Union Order where, having granted immunity and the legal capacities of a body corporate to the Organisationno waver of immunity shall be deemed to extend to any measure of execution or detention of property.471 He thought that a surprising thing, but I think that, on reflection, the hon. and learned Gentleman will come to the conclusion that it is not so surprising. This Organisation has to function, and it would be extremely difficult if it failed to function because all its goods were being detained or had execution levied upon them. Therefore, I do not think that that is an unreasonable immunity.
I was very interested in the point made by the hon. and learned Gentleman about Article 9. He asked why we were asking for inviolability for all papers and documents. Of course, that is only limited to the official clerical staff which is accompanying the representative when present in the United Kingdom for the discharge of its duties.
I agree that inviolability for all papers and documents does look a little bit wide, and I wondered why it was. Then I looked up Part IV, Article 9, of the General Agreement on Privileges and Immunities of the Council of Europe. I believe that was settled if not by the hon. and learned Gentleman himself when he was Solicitor-General, at any rate by his Government. Article 9 lays it down that inviolability for all papers and documents should be given to representatives at the Committee of Ministers. Therefore, if we have erred, we have merely followed the error of the hon. and learned Gentleman's own Government, and that is the reason why we are doing it.
§ Sir L. Ungoed-Thomas
That is one of the things that I really complain about on these Orders. On reading them, it occurred to me that they seemed to be just lifted out of previous Conventions. As the Solicitor-General said the other day with great effect, these Conventions are very loosely worded. I quite agree with him. It really is a most sloppy method just to lift something from a Convention which is loosely worded and put it into an Order which should be precise, of legal effect and something which could be quoted in the courts and relied upon. This is an entirely different category of things, and these Orders should not be treated in this way.
§ Mr. Turton
I quite appreciate the broad picture which the hon. and learned Gentleman has presented, but we have to remember that we might have representatives attending the Council of 472 Europe who then go, the next day, to the Western European Union; and it is a little awkward if they have inviolability for all papers and documents upon the first day and are then stripped of that inviolability on the second day. In this case, therefore, because of the similarity between the Council of Europe and the Western European Union, it has been necessary to follow the example set by the right hon. and learned Gentleman's Government. I quite agree that it is very dangerous to take examples from previous legislation.
The right hon. and learned Gentleman asked why United Kingdom citizens are exempted from tax. The reason is that, broadly speaking, in most organisations of this character, that has been the case under the Diplomatic Privileges Act. In fact, those who are officials of the North Atlantic Treaty Organisation enjoy this tax exemption. It would be very invidious if officials of the North Atlantic Treaty Organisation enjoyed tax exemption but officials of the Western European Union, under the Brussels Treaty, should be denied that exemption. We also have to consider the fact that the Brussels Treaty Permanent Commission enjoyed those facilities. That is why we have these tax provisions.
I hope that for those reasons the right hon. and learned Gentleman, if not entirely satisfied, will realise that we have given considerable thought to the terms of these immunities and privileges, and will come to the conclusion that they are not unreasonable and should be approved.
§ Question put and agreed to.
That an humble Address be presented to Her Majesty praying that the International Organisations (Immunities and Privileges of the Commission for Technical Co-operation in Africa South of the Sahara) Order, 1955, be made in the form of the draft laid before this House on 14th June.
§ To be presented by Privy Councillors or Members of Her Majesty's Household.
That an humble Address be presented to Her Majesty praying that the International Organisations (Immunities and Privileges of the Inter-governmental Maritime Consultative Organisation) Order, 1955, be made in the form of the draft laid before this House on 14th June.
§ To be presented by Privy Councillors or Members of Her Majesty's Household.473
That an humble Address be presented to Her Majesty praying that the International Organisations (Immunities and Privileges of Western European Union) Order, 1955, be made in the form of the draft laid before this House on 14th June.
§ To be presented by Privy Councillors or Members of Her Majesty's Household.
That an humble Address be presented to Her Majesty praying that the International Organisations (Immunities and Privileges of the World Health Organisation) (Amendment No. 2) Order, 1955, be made in the form of the draft laid before this House on 14th June.— [Mr. Turton.]
§ To be presented by Privy Councillors or Members of Her Majesty's Household.