HL Deb 11 January 2005 vol 668 cc1-56GC

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]

The Deputy Chairman of Committees (Lord Ampthill)

Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of two points of procedure. Noble Lords will speak standing. The House has agreed that there shall be Division in a Grand Committee. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.

If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.

Title postponed.

Clause 1 [Commonwealth Secretariat]:

Lord Craig of Radley

moved Amendment No. 1: Page 1, line 8, leave out subsection (3). The noble and gallant Lord said: Amendment No. 1 is a probing amendment, as I shall seek to explain. In 1995, Commonwealth member governments, including the UK, agreed that the Commonwealth Secretariat Arbitral Tribunal (CSAT) would be the final adjudicator for any grievance against the Commonwealth Secretariat's management. However, in 2002, a former member of the Commonwealth Secretariat staff appealed against a CSAT judgment to the UK court.

The UK court accepted jurisdiction, there being no legal basis for not doing so. Although the Commonwealth Secretariat, I understand, won that case on the substantive issue, this clause as drafted does not seem to close the door to further possible litigation in UK courts, following on from CSAT judgments both before and conceivably even after the arrangements in this Bill come into force.

I assume that as a matter of principle HMG accept that international organisations should have sole recourse to their own arbitration mechanisms as agreed by the member states—always accepting that these are consistent with human rights law—and are not to be subject to the jurisdictions of national courts of member countries. I would welcome the Minister's assurance on that point.

Against that background, I propose that Clause 1(3) be deleted, which as drafted fails to ensure that only CSAT judgments will be applied to any case that might still be in train or started before the Secretary of State by statutory instrument makes that clause operative. It would seem to be anomalous to attempt to close the door on appeal to UK courts while leaving open a loophole for such appeals to be made.

I am not clear where the costs of such appeals would fall. Certainly, the Commonwealth Secretariat would initially have to find those costs, which could well mount up. But the other 52 Commonwealth governments, which recognise CSAT as the final court of appeal for Commonwealth Secretariat staff, presumably might expect HMG to shut this door fully and as quickly as possible.

Anyway, it would be reasonable of them to expect that all the Commonwealth Secretariat's financial liability resulting from litigation in the UK courts before this loophole has been closed should be met by the UK itself.

Am I right to assume that HMG accept that they would have to meet such costs? If so, it seems to me that it is in HMG's interest to avoid this potential difficulty or at least to consider as an alternative a rewording of the clause to restrict liability to any contract or situation where litigation has already been started before the Bill has become law and the commencement date approved. I invite the Government to reconsider their approach to this point. I beg to move.

Baroness Rawlings

We do not support this amendment. I wonder whether the noble and gallant Lord, Lord Craig, is aware of any particular agreement that might pose a problem to the Commonwealth Secretariat, and that that is why he is suggesting such a change. This amendment, as we understand it, would provide indefinite carte blanche to members of an organisation who should have acted in a responsible and accountable way, in the knowledge of the limits of any immunities and privileges at the time. As such, I do not see why their behaviour should need the retrospective protection suggested by the amendment.

Baroness Falkner of Margravine

We support the amendment and agree with the broad outline of the argument.

Baroness Crawley

I wish all noble Lords a happy New Year, if I have not seen them this year, and look forward to a productive afternoon.

After very careful consideration, the Government's firm view is that as a matter of legal policy it would not be appropriate for the new extended immunity to apply retrospectively, as the noble and gallant Lord, Lord Craig, has suggested, to disputes in relation to contracts agreed before this new legislation comes into force. Why have we come to that conclusion? Because individuals or entities entering into contracts with the secretariat—for example, into employment or commercial contracts—may be taken to have done so on the basis that their consent to be bound by that contract is predicated on the assumption that their contractual relations will be governed by the law regulating the legal position of the secretariat at the time on the contract. Therefore, the secretariat should not have complete immunity from the jurisdiction of the courts in the UK in relation to claims under such contracts.

In those circumstances, I believe that it would be unfair to change the legal position in respect of existing contracts by taking away the right to challenge certain decisions of CSAT through the UK courts. As the noble and gallant Lord will know, the general presumption of governments historically is that legislation should not make retrospective provision. There are exceptions to that—for example, when a retrospective provision can be justified on the basis that it would be of overriding public benefit. But conferring immunity from jurisdiction on the secretariat so that it applies to contracts agreed before this legislation comes into force cannot be justified, in the Government's legal view. It would not be fair to those who entered into those contracts on an understanding that they would have recourse to the UK courts if necessary.

The noble and gallant Lord raised the issue of costs. The costs of the secretariat defending a case in the UK courts would fall to the secretariat.

For those reasons, I cannot accept his amendment.

Lord Craig of Radley

I understand the basis of the Government's argument on retrospection. However, it seems to me that the legal basis for the concept of retrospection in this particular case is a bit week, with regard to something agreed at Commonwealth level in 1995, when there has been delay on the part of Her Majesty's Government in introducing legislation in a timely manner. As for the costs, when one bears in mind the delay on the part of Her Majesty's Government—I mean also the government of the time, not necessarily only this Government—in introducing the legislation, it seems that the secretariat could potentially be exposed to high legal costs if a case arose which needed a lot of defending. The blame, or at least the reason why the secretariat would have to shoulder these costs—which is what the Government would wish—is because again the Government have not acted in a timely manner. It seems to me that there should be some give on the part of the Government on those two counts, if not in the whole case as far as the legal aspect is concerned, but certainly as far as any cost is concerned. It is not just the Government; the secretariat is responsible to the other 52 Commonwealth countries, which I think would also take a somewhat less than satisfied view if Her Majesty's Government, having failed to bring in the legislation in a timely manner, are now maintaining the position that they are not prepared to foot a bill in the event, perhaps the unlikely event, that it did arise.

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 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 1 agreed to.

Clause 2 [Commonwealth Secretariat Arbitral Tribunal]:

Baroness Falkner of Margravine

movedAmendment No. 2: Page 2, line 3, at end insert— (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—

  1. (a) section 1 of the Arbitration Act 1996 (c. 23), and
  2. (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.

3.45 p.m.

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 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, 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 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?

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— may share some features with diplomatic missions of states, the similarity is limited". 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, 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.

4 p.m.

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 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 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.

4.15 p.m.

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 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.

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.

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".

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.

4.30 p.m.

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, 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 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 Ministers 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.

Lord Pearson of Rannoch

I wish to press the Minister on a question that I put to her earlier in my remarks. We have clarified what happened to my Written Questions, but I am not sure that she answered my query as to what happened to the questions posed by my noble friend—if I may refer to her as such—Lady Rawlings, in her intervention at Second Reading, and whether they have been answered in correspondence. I ask that because at

the end of the reply from the noble Baroness, Lady Symons of Vernham Dean, at Second Reading, she said: The noble Baroness raised a number of other questions. I shall go through them very carefully and I hope to give her satisfaction in the answer I provide".—[Official Report, 16/12/04; col. 1478.] It would be helpful to know whether those answers have been given.

Baroness Crawley

I thank Members of the Committee for that debate. In answer to the noble Lord, Lord Pearson, answers to the remaining questions that were not dealt with by the noble Baroness, Lady Symons, in our Second Reading in December, will be sent to the noble Baroness, Lady Rawlings, very shortly. I hope that through the process of today's Committee stage we can answer some of them anyway. But there will be some outstanding written replies for the noble Baroness.

Lord Pearson of Rannoch

I trust that the Government then agree that it is a pity that those replies are not already with us to inform our proceedings today.

Baroness Crawley

We certainly did not want to be discourteous to the noble Baroness. I hope that she will accept that we shall certainly send her the replies very shortly.

I shall add another few numbers to the figures on the percentage of British citizens in the Commonwealth Secretariat. That point was originally raised by the noble Lord, Lord Wallace, and taken forward by the noble Baroness, Lady Falkner. My note tells me that at the last count, 79 of approximately 270 Commonwealth Secretariat staff were British. That is less than 30 per cent.

Baroness Falkner of Margravine

And residents?

Baroness Crawley

Well, those are the numbers that I have. I am sure that we can come back to that matter if more clarity is needed.

The noble Baroness, Lady Falkner, raised the issue of the compatibility of the immunity provision with the European Convention on Human Rights. The noble Baroness, Lady Rawlings, also raised that matter at Second Reading. The issue of the compatibility of the conferral of immunity on international organisations with the European Convention on Human Rights has been considered in the past by the European Court of Human Rights in Strasbourg. The court has held, in a number of cases, that the right of access to a court under Article 6 of the convention is not absolute and may be subject to limitations, providing that they pursue a legitimate aim and are proportionate.

The Court in Strasbourg has accepted that conferring immunity from jurisdiction on international organisations is a legitimate aim, as it is an important means of ensuring that the proper functioning of such organisations continues free from unilateral interference by individual governments. It is also relevant to consider whether there is a reasonable alternative means by which individuals may pursue claims against the organisation. Although the noble Baroness and myself have a different opinion on the matter, I would say that with the Commonwealth Secretariat, as is the case with many international organisations, there is an internal dispute resolution mechanism in place to hear such claims.

Since the creation of CSAT in 1995, a number of changes have been made to its statute. It is proposed that the revised version of the CSAT statute will be attached to the revised agreed memorandum of the Commonwealth Secretariat. Any further changes to the statute in future will be subject to the agreement of Commonwealth governments.

At Second Reading, the noble Baroness, Lady Rawlings, raised the issue of the Joint Committee of Human Rights reporting on the Bill. The noble Baroness, Lady Falkner, also raised the issue in this debate. The JCHR is aware of the Bill and has informed us that it will report on it at the end of this month.

The noble Lord, Lord Stoddart, raised issues about whether the staff of the Commonwealth Secretariat were consulted on the Bill. It is my understanding that consultation between the Government and the management of the secretariat has been going on for a number of years. The management welcome this Bill, and it is up to the management to ensure that consultation is then made between themselves and their staff. It is a matter for the Government to consult with management and then for management to consult with their staff.

4.45 p.m.

Finally, why do we need to confer privileges and immunities on any of these organisations and bodies, which is the underlying thrust of some of the arguments, particularly from the noble Lord, Lord Stoddart, in his unholy alliance with the noble Lord, Lord Wallace of Saltaire? Privileges and immunities are conferred on organisations and bodies to ensure that they are able to carry out their functions without being impeded. That is the simple basis of this Bill. The general policy of Her Majesty's Government, which goes back to the 1980s, is that privileges and immunities should be granted primarily on the basis of functional need.

The scope of the privileges and immunities conferred and the organisations and bodies on which they are conferred are determined by the UK's international obligations, as we have discussed. As regards the organisations and bodies covered by the Bill, as I have said already we have signed international agreements committing us to confer privileges and immunities on them. A number of those agreements are long-standing, for example, those relating to the OSCE, ECHR and ICLOS were signed in 1993, 1996 and 1997 respectively. Further delay in fully implementing those agreements could be interpreted as a lack of commitment by the UK to those organisations. We would certainly not want that impression to go abroad.

Lord Stoddart of Swindon

The Minister stated that she did not know whether the staff had been consulted, and that the Government's duty was to consult with the management. The management board is of course appointed by the Secretary-General, so there is a difficulty there. Surely the Government have a duty to find out whether management have taken proper consultation with the people involved? That is modern industrial relations practice. If the management did not consult with employees who would be affected, they are guilty of bad management. It simply is not good enough. I worked in the electricity supply industry, and I know a little about negotiating with management and how difficult it is to get management to listen to what people who work on the ground have to say. We had a modern system in which management were obliged to consult with workers. It seems to me that if the Government went willy-nilly along with the decision of management and did not ask whether this was acceptable to the staff involved, they were failing in their duty.

The noble Lord shakes his head, but he is a member of the Labour party. I would have thought that he would understand what I am saying about the need to consult with employees who are having their conditions of service changed. In industry there would be strikes and industrial action if you attempted to change, without consultation and negotiation, a privilege or a term of service that had been enjoyed for a long period of time, certainly since 1966. You cannot and should not do so. So this really is an important point. Clearly, as we have heard from the noble Baroness, Lady Falkner, secretariat staff are offended by the way in which they have been treated. I would have hoped that the Government would take some cognizance of that.

I do not know whether I missed it, but did the Minister answer the question about what would happen if Parliament, through the House of Lords—because this is a House of Lords Bill—refused to pass this Bill?

Baroness Crawley

I apologise that I did not answer before. If this Bill failed to go through both Houses there would be status quo; that would be the position. I simply repeat what I have said before about our years of consulting with management at the Commonwealth Secretariat on this Bill. We could talk for hours about this, but I do not believe that it is the role of the Government to go through staff trade unions in that consultation; that is the role of management. We would quite rightly get short shrift from trade unions if we started interfering.

Baroness Falkner of Margravine

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Clause 2 agreed to.

Baroness Rawling

moved Amendment No. 4: Page 2, leave out lines 20 and 21. The noble Baroness said: Amendment No. 4 is grouped with the clause stand part debate. The aim of this amendment is to probe some of the details of the Commonwealth Secretariat tax system in light of the proposed exemption from income tax in Clause 3. Albeit that the Explanatory Notes and the regulatory impact assessment suggest that the changes in this Bill would result in little expense to the taxpayer, little expense is still a cost. I have heard this before from the Government. All costs, including minor ones, still add up.

The amendment would remove lines 20 and 21, the reference to "salaries and emoluments" from the proposed new Clause 5A(1) in Clause 3; this was designed as a peg on which to hang this debate. I understand this is by no means technically desirable, as it probably widens the immunity to income tax across everything. The Minister informed the House at Second Reading that the Commonwealth Secretariat, the only organisation covered by this Bill, which is based in the UK, employs up to 280 staff. Will she please clarify how many of those staff are UK citizens? How many of those 280 may be covered by those extended immunities and privileges? They must have some rough idea as to the numbers needed.

I would also be interested to know the current rates of taxation for the Commonwealth Secretariat staff, and whether the Minister can enlighten the Committee as to any proposed changes to these rates, unless this Bill is put in place. For comparison, would the Minister be so kind as to let us know how this measures up to the staff of the Foreign and Commonwealth Office who work in High Commissions? Will UK citizens who work for the Commonwealth Secretariat end up being treated more preferentially than Foreign and Commonwealth Office staff, or vice versa?

I presume that the Commonwealth Secretariat staff will be paying tax on savings and investments in this country that are not defined as "salaries and emoluments" in Section 5A(1). I look to the Minister for assurances on this. In doing so, it would be helpful if she could clarify what the rate of tax will be on such holdings and if that will be at the highest marginal rate. I beg to move.

Lord Wallace of Saltaire

It may help if I speak briefly to this, although I am conscious that we do not wish to take too much time on the next amendment or two if we are to complete Committee stage by 7.30 p.m., which I hope that we can. I press the Government again to expand on the principles that lie behind the degrees of immunity from domestic taxation that are available for international organisations. We are dealing here with income tax; I am also conscious that excise and VAT are issues from which for some purposes some members of international organisations are also exempt.

I stress again that we are in a situation in which—while accepting the Minister's remarks that some of these are relatively long-standing, five to 10 years in the past—the speed at which we might expect new international organisations and agencies to arise, to which Britain will rightly become a member, is not likely to slow. We thoroughly support British membership in these organisations; they are a necessary part of how we manage an interdependent global and regional order, but one must look at the growth of special exemptions for privileged classes. That goes along entirely with our scepticism about offshore financial centres and some of the queries that we make about multinational corporations and their ability to evade paying domestic taxation.

We are asking the Government for a definite commitment, by the time we reach Report stage, to a Government review of this situation as it moves on, not only looking at the issues at which we are looking now, but at how the Government wish to approach this in general terms as new proposals come up.

Baroness Crawley

I thank noble Lords for their contributions. I am mindful of the time; I hope that the noble Lords who have spoken will find the answers to their several questions in my speaking notes on the amendment and on clause stand part. Separately, I will come to the question asked by the noble Baroness, Lady Rawlings, about the position regarding income tax payments by Commonwealth Secretariat staff.

Clause 3 as it stands confers exemption from UK income tax on all staff of the secretariat in respect of salaries and emoluments that they receive from the secretariat. The effect of the amendment is to extend the exemption from income tax to all income sources. For example, where a staff member of the secretariat receives payment for employment outside the secretariat, that staff member would also be exempt from income tax on that income, which had nothing to do with their work for the secretariat. That surely cannot be the intention of the noble Baroness.

Other examples of sources from which staff may derive income include interest from investments, building society accounts, share dividends. It is important that the exemption from income tax is not widened unnecessarily to cover these other sources, which we believe would be the effect of the amendment.

5 p.m

We cannot accept Amendment No. 4. To do so would be to accord staff of the secretariat relief from income tax greater than that accorded to staff of all other international organisations and diplomatic missions based in the United Kingdom. It would therefore be without precedent and could not be justified and would of course result in a loss to the UK Exchequer. The Commonwealth Secretariat has not requested such relief from us and for those reasons we cannot accept the amendment to the Bill.

I turn to the Motion on Clause 3 stand part. In response to the issues raised, the Bill will bring the tax arrangements at the Commonwealth Secretariat in line with the situation in most other international organisations, and especially commonwealth organisations such as the Commonwealth Foundation, the Commonwealth Telecommunications Organisation and the Commonwealth Agricultural Bureau International.

In practice, the Commonwealth Secretariat already operates an internal tax system but via a complicated, inefficient and time-consuming money-go-round. The UK is required to repay to the secretariat the income tax paid by staff on their salaries in accordance with the memorandum of the Commonwealth Secretariat agreed by heads of Commonwealth Governments in 1965. In order to meet their commitments under the memorandum, the Government agreed a special and unique set of arrangements with the secretariat. All secretariat staff are liable to UK income tax on their salaries. PAYE is operated by the secretariat for all staff, apart from overseas senior officers. In the case of overseas senior officers, the secretariat provides the Inland Revenue with an annual statement of the salaries paid. The Inland Revenue raises assessments based on the grossed-up amounts and notifies the secretariat of the tax due.

Money flows in a circle. PAYE deductions are paid monthly by the secretariat to the Inland Revenue; assessments in relation to overseas senior officers should be paid annually; the Inland Revenue passes the money to Her Majesty's Treasury; the FCO then reimburses the Commonwealth Secretariat from a ring-fenced fund provided by Her Majesty's Treasury specifically for refunding income tax. That is the money-go-round.

Ending this inefficient money-go-round should provide efficiency gains for the secretariat; for the Inland Revenue; for Her Majesty's Treasury; and for the FCO. That is why we want Clause 3 to stand part of the Bill.

In answer to the specific question asked by the noble Baroness, Lady Rawlings, all staff of the Secretariat are liable to UK tax on their salaries. PAYE is operated by the secretariat for all staff, apart from overseas officers. The reimbursement has been made in the way I suggested. I hope that Members of the Committee will have patience with me if I write to them on other specific tax questions.

Baroness Falkner of Margravine

On a point of clarification, the noble Baroness told us that all staff are subject to UK income tax and PAYE but with the exception of senior staff. Will she confirm our understanding that all staff of a certain grade, which includes all senior diplomatic staff, are subject to it? If that is correct, what number is affected?

Baroness Crawley

Perhaps I may provide the noble Baroness with that information in writing. I would rather be accurate than quick.

Lord Pearson of Rannoch

Surely all those people who live in this country enjoy all the services which this country provides. Why should they be let off tax?

Baroness Crawley

They are not.

Lord Pearson of Rannoch

The senior ones are. Many of us thought that the noble Baroness said that the senior ones are. Can she clarify that?

Baroness Crawley

Perhaps I may clarify that. There are 36 senior officers in our definition. All the staff of the secretariat are liable to UK income tax on their salaries. PAYE is operated by the secretariat for all staff, apart from overseas senior officers. The FCO reimburses the secretariat for all PAYE deductions paid to the Inland Revenue. In the case of the overseas senior officers, the secretariat should provide the Inland Revenue with an annual statement of the salaries paid. The Inland Revenue raises assessments on the grossed-up amounts and notifies the secretariat of the tax that is due. The secretariat arranges the payment which is refunded by the FCO.

Lord Pearson of Rannoch

Do these foreign dignitaries pay the tax in that case, or is it paid for them?

Baroness Crawley

Yes, they do.

Lord Roper

I am grateful to have learnt about this money-go-round, but on the whole I am glad it is to be done away with. Has the Revenue estimated the savings in Revenue staff which will result?

Baroness Crawley

I do not believe so, but I shall come back to the noble Lord if I am wrong.

Lord Pearson of Rannoch

Before leaving the subject, would it be incredibly naive to suggest that this entire money-go-round of foreign bodies all over the world should be abolished? Speaking as the chairman of an international company based in London, with at least 12 foreign branches, I can say that we move people around the world a great deal. If someone living in London is invited to go and run my office in Singapore, he knows that he will have to pay tax and meet all the conditions of living in Singapore, with its standard of living and the value of its money. If he does not want to go, he does not go. Why are these international bodies given the privileges which do not apply to the rest of us who, I remind the Government, actually make the money to pay the tax which pays for the whole merry-go-round?

Baroness Rawlings

I am grateful to the noble Baroness for her detailed reply. I look forward to receiving further written details. We shall decide whether to return to this point at a later stage. I thank the Minister for her answer and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Organization for Security and Co-operation in Europe]:

On Question, Whether Clause 4 shall stand part of the Bill?

Baroness Rawlings

This was one clause which gave me particular concern. As I noted on Second Reading, the noble Lord, Lord Wallace of Saltaire, also expressed real doubts surrounding the Organisation for Security and Co-operation in Europe. Agreement to the Motion would leave out Clause 4 from the Bill.

I reiterate the point I made on Second Reading that we believe closer co-operation and mutual recognition can only help the countries and organisations involved to tackle the problems we face not only today but in the future. I also take heart from the Minister's comments that despite recent difficulties the OSCE remains a vibrant and important organisation; one with which we do not want to see the weakening of our relationship.

However, I question whether, if providing privileges and immunities to some of the OSCE's members' diplomats—for example, Belarus, whose record on human rights, together with some central Asian republics is well below par—does not undermine some of the basic standards and freedoms of our democracy—indeed, the beliefs of the British for which we fight.

Could that itself not weaken our country's standing and position on the world stage? It could also cause tension with groups fighting for democracy within these very countries. I ask myself and Members of the Committee what signal this sends to anti-democratic regimes. We must look carefully at the balance between supporting international organisations and the unintentional consequences of supporting these regimes through such organisations—regimes which allow the very human-rights atrocities we seek to wipe out.

Can the Minister clarify whether all member countries' diplomats accredited to the OSCE and their families will have full immunities when they are in the UK? Is it not highly questionable to expect the UK taxpayers to pick up the bill of the ruling elite in Belarus?

Lord Triesman

The Motion proposes the deletion of Clause 4 which is concerned with the Organisation for Security and Co-operation within Europe. Clause 4 will bring the OSCE within the scope of the International Organisations Act 1968 and enable the UK to confer legal capacity and privileges and immunities on the OSCE. The Government have looked carefully at the comments made during the Second Reading debate.

The intention of the Motion appears to be to prevent the conferral of the privileges and immunities on the OSCE. During Second Reading, the noble Baroness, Lady Falkner, and the noble Lord, Lord Wallace of Saltaire, made reference to the value of the OSCE, but qualified their support for providing the OSCE with legal status in this regard. The noble Baroness, Lady Falkner, was concerned to preserve the OSCE's flexibility. The noble Lord, Lord Wallace, saw a case for making the OSCE a full inter-governmental organisation, but only if it had the potential to play the role of a full inter-governmental organisation in its own right, despite negative pressures from some countries.

The noble Baroness, Lady Rawlings, had concerns about the privileges and immunities being afforded to the ruling elite of countries such as Belarus with anti-democratic regimes and she has rightly returned to that issue today.

The reality is that this clause is needed to enable the UK to implement its political commitments in the Rome Council decision of 1993 by conferring legal capacity and privileges and immunities on the OSCE. Deletion of the clause, as proposed, would make it impossible for the UK to comply with that undertaking.

The OSCE is an important instrument for the attainment of the Government's foreign policy priorities in international security. The Government do not want to see any weakening of our relationship with the OSCE. A failure to take this opportunity to implement the political commitments in the Rome Council decision must call into question our commitment to the OSCE altogether, whereas to include the OSCE in the Bill would be of little practical cost. It is unlikely that the OSCE will open a mission or an office in any part of the UK. The privileges and immunities conferred by the Bill would have an effect only on the occasional visits of OSCE officials—we believe that there are about 10 overnight stays by those officials per year—such as the Secretary-General and the High Commissioner on National Minorities.

The impact of the Motion would be political in that it would send a plain political message everywhere, but not operational in that we expect hardly any people from that organisation to be here and not to be based here as an organisation.

Apart from wanting to fulfil our international obligations properly, the UK remains committed to the OSCE's comprehensive and co-operative approach to security and our reasons are strong. The OSCE is the only security organisation in Europe considered a regional arrangement under Chapter VIII of the United Nations Charter. That is itself a distinction. In its region, it is the primary instrument for early warning and conflict prevention, crisis management and post-conflict rehabilitation. Its membership, which brings together the Euro-Atlantic and Euro-Asian communities, provides a unique forum for development and implementation of common values and democratic standards which we regard as essential to our security in the UK. A large number of activities have given practical expression to those objectives. The OSCE sent election observation missions to Georgia last year. The statement on the elections helped promote democracy in Georgia.

5.15 p.m.

The OSCE sent an election support team to Afghanistan to provide recommendations for future elections. It has observed elections in Belarus, Ukraine, Macedonia, Serbia, Kazakhstan and in the United States this year. It has been involved in arms reduction and the limiting of the sale of the Man-portable air defence system in its area. It is working to destroy stockpiles of ammunition and weapons in Georgia, Ukraine and Belarus to ensure not just the safety of that area but all our safety given the nature of the stockpiles of weapons that were held in those countries.

I emphasise what has been done in the Ukraine because it shows the overall value of the organisation, notwithstanding the questions which will unquestionably arise about some of the regimes in the organisation. In the Ukraine we have recently seen how the OSCE can help empower the population of the country to participate actively in the democratisation process through upholding standards for fairness and free and fair elections. The Government value the unique contribution that it makes in all of those areas, in support of conflict prevention and nation building, including in the Balkans, the Caucasus and Central Asia.

The OCSE is also addressing new and emerging threats to security and stability in Europe, including terrorism, human trafficking and all forms of intolerance and hate crimes that threaten our societies. To exclude the OSCE from the provisions of the Bill must send in all of those circumstances entirely the wrong signals. Is it a perfect organisation? Of course not—points have been made very well and persuasively in that regard. However, are its benefits relating to any of those problems overwhelming in regard to the UK's interests? I submit that they are. In that light I ask the noble Baroness to withdraw her amendment.

Lord Roper

The noble Lord, Lord Triesman, made it clear that this measure in no way provides any exemption to the members of the governments of any of the OSCE member states. The only people to whom it applies would be members of the OSCE staff coming to this country. Therefore, I feel that part of the argument that was made probably falls.

However, I want to pursue two different points. First, at the recent meeting of the OSCE in Sofia there was a great deal of discussion of the inter-relationship that now exists regarding the OSCE and the adapted CFE treaty. Therefore, I wonder whether, when people come to this country to carry out inspections under the CFE treaty, they are treated as covered by the OSCE. I had an idea that some time ago Parliament passed an exemption which already gave them diplomatic status. Therefore, I wonder whether, in considering this matter, we are not giving them diplomatic status when they come to this country.

Secondly, the Minister, in outlining the important work of the OSCE, referred to its work regarding election observation. Interestingly, one of the places in which the OSCE carried out election observation last year was the United States. That shows that it is not only in former countries of the Soviet Union that the OSCE carries out observations when there are concerns about the way in which elections are being conducted.

If the Government were to pursue their interest in having all-postal votes in elections of one kind or another, as we have seen introduced, there might be controversy about the validity of that as a system. In those circumstances the OSCE might choose to send election observers to the United Kingdom to see how far an all-postal voting system corresponded with the objectives of democracy favoured by the OSCE. If a mission of electoral observers were to be sent to the United Kingdom, I wonder whether our adoption of this clause would give them appropriate immunity during their visit.

Lord Triesman

I think that the noble Lord, Lord Roper, was right in his comment about the nature of immunity. If I am wrong about that, I shall certainly write to him to correct the point.

As regards the second point that he made regarding the electoral observations that have taken place, he is entirely correct to say that a delegation went to the United States. I suppose that in the context of the history of "hanging chads" and other things there was always a possibility that that would occur. I would like to think that if the organisation considered it right to send observers to observe any aspect of an election in the United Kingdom, we would consider that our system was robust and capable of being looked at by others, and that we would have no fear of anyone inspecting it. I believe that the people concerned would be bound to be covered by the relevant immunities. I have heard a whisper in the ether from the officials behind me that will not find its way into Hansard unless I say it. In case the Committee did not hear that comment, the organisation did send an election team. I shall be very inquisitive to find out what it had to say.

Lord Stoddart of Swindon

I listened to what the noble Lord, Lord Triesman, had to say. What he said really reduced the whole thing to absurdity because he said that the relevant people hardly ever come and that there have been about 10 overnight stays in the past 12 months. I think that was the sort of thing he was saying. If that is so, why on earth do we want this clause in the Bill? If it is so unimportant, why are we making special provision? I refer to the other question I should like to ask and to which I should like to know the answer, although the noble Lord may not be able to give it at the moment. When the OSCE was recently present in the Ukraine supervising the elections there, did its members have diplomatic immunity in that country? I wonder whether the noble Lord knows the answer to that. If they did not have diplomatic immunity, how did that obstruct in any way—or did it obstruct in any way?—the job they had to do there? If it did not obstruct in any way the job they had to do in the Ukraine, why on earth would they need immunity in this country, which, of course, is a democratic country and freer than the Ukraine, to do the same sort of job?

Lord Triesman

I am disappointed that the noble Lord, Lord Stoddart, thinks that the argument is absurd. A theme may have run through our debate so far that needs a tiny bit of elaboration, but I would hope not a lot. When we enter into international treaties and international bodies are set up under those treaties, all those who sign up to the treaties become, if you like, members of a club obligated by the terms of the relevant treaty. They are obligated to ensure that the organisations set up under the terms of that treaty are dealt with in an even-handed way in every country that is a party to that treaty.

Some of the organisations that are set up will take residence in the United Kingdom. In fact, we have been extremely successful as a nation—I am proud of the fact—in that we have attracted a number of those organisations which believe that it is beneficial to be based in the United Kingdom and to conduct their international work from here. Others, by definition, will be set up elsewhere. However, they will all be treated the same way by the nature of the international obligation which all signatories to the treaty, in joining the club that that treaty represents, have given their undertakings toward. I suspect that was not a sentence with proper syntax but I hope that all Members of the Committee will none the less follow it. That is why, even if the relevant people do not come here other than for occasional visits, I should have thought that our obligations are wholly and manifestly clear.

On the point about whether there was diplomatic immunity for the relevant people in the Ukraine, the answer is yes.

Lord Pearson of Rannoch

That is all very well for the members of this cosy club who clearly do very well out of it. As the noble Lord explained, these treaties and agreements are reached by governments, by the executives. However, what the Government are now asking us to do as Parliament is to ratify these arrangements. It is in this process that Parliament has the chance to disagree with what the executive has done on its behalf.

Baroness Falkner of Margravine

On a point of clarification, as regards the noble Lord's question about the OSCE mission monitoring the elections in the Ukraine having diplomatic immunity, as we understand it, monitoring missions do not get diplomatic immunity as expressed in the general meaning of that word. Will the Minister clarify that point? It would be surprising if members of that mission had had diplomatic immunity.

Lord Triesman

I am advised that immunity covered by international arrangements was provided. I shall check the precise origin of the basis for that, but that is what I am advised. I am happy to write to the noble Baroness to clarify that basis.

Clause 4 agreed to.

Clause 5 [Bodies established under Treaty on European Union]:

Baroness Rawlings

moved Amendment No. 5: Page 3, line 11, leave out "as amended from time to time The noble Baroness said: I stand to speak to Amendment No. 5 in my name. I must say that I was tempted too to put down a Motion that this clause should not stand part of the Bill.

I would first of all like to reiterate a request I made at Second Reading. The noble Baroness, Lady Symons, kindly provided us with some examples of the bodies that will be covered by this clause in relation to bodies set up under Title V and Title VI of the Maastricht Treaty. I feel I speak for the Committee when I say that a full list—as mentioned by my noble friend Lord Pearson of Rannoch earlier this afternoon—of all the organisations that will be covered in this way would be most useful. Will it, for example, cover Europol investigators? Will the Minister put a copy in the Library before the next stage of the Bill? I rather agree with the comments of the noble Lord, Lord Wallace, that the European Union has great influence in our daily lives, so we should consider carefully how far the privileges and immunities reach within its bodies, also, how accountable these bodies are themselves in adhering to the remit of regulations that European Union member countries are subject to.

The amendment itself removes the ability of the section to apply to the Maastricht Treaty, as amended from time to time". This, I understand, would allow it to apply only to bodies already covered by the treaty as it stood in 1992. The aim once again is to ask the Government in more detail about issues raised the last time we debated this Bill. I welcomed the comment of the noble Baroness, Lady Symons, that, this Bill has got nothing to do with the … constitutional".—[Official Report, 16/12/04; col. 1478.] treaty. I would like to ask for a more exacting assurance that the words, as amended from time to time", will not allow the Government to act in anticipation of the decision of Parliament on the European Union Constitutional Treaty, and particularly any new bodies that may flow from that. If this text would enable privileges and immunities to be awarded to bodies not yet formally agreed to until a constitution is agreed and ratified, does the Minister promise that the Government will not use this power until such a situation has been reached?

At Second Reading the Minister explained the principle that privileges and immunities should be granted only on the basis of functional need, and that each time a new European Union body is proposed the Government take a view on whether that body needs legal capacity and/or privileges and immunities. Will the Minister explain the process by which that view is made? Is there a set of criteria that must be met? Do the Government consult on these decisions, and, if so, with whom?

5.30 p.m.

I would also like to discuss further the issue of legal personality and the points that I previously raised. As I said, I wish to seek further clarification about the legal basis for conferring the privileges and immunities of the European Communities on the European Union bodies when the European Union itself does not have a legal personality—something that I hasten to add that we on these Benches would not support. The noble Baroness was unable to tell me at Second Reading whether the Government had responded to questions put to them along those lines by the committee dealing with European security. If they have, will the Minister make copies available to Members of this Committee for the future? If they have not, when might they respond, especially in the light of the orders that were agreed on 9 December 2004?

The issue of legal basis is one that we should consider with great care. Indeed, it is one that should have been addressed when we originally signed up to these bodies. I beg to move.

Lord Wallace of Saltaire

I will speak to Amendments Nos. 6 and 7. For these purposes, I will take a different direction from the noble Baroness, Lady Rawlings, I will add to the discussion that we are having across these amendments. It becomes increasingly important to have some clarification from the Government about the different degrees and dimensions of diplomatic status and immunities. There was some confusion in the previous discussion about the sort of diplomatic status and immunities held by some recent ex-students of mine when they were in the Ukraine as election observers, which were different from the status and immunities of people stationed in London. That is one reason why we are asking for a review and preferably a publication from the Government about where we are going with all of this.

On these Benches, we welcome the proliferation of agencies within the European Union, but we question how far they need the sort of status, immunities and protections that have traditionally been granted to international organisations. I hope we can all agree—even the noble Lords, Lord Stoddart of Swindon and Lord Pearson of Rannoch—that the European Union is a little more than an intergovernmental organisation. It may be a little less than a federation, but we are not in the traditional world of international organisations operating in difficult foreign territory. We therefore wish to raise again the question of where we are going beyond where we are now.

Amendment No. 6 lists three illustrative recent organisations. My noble friend Lord Roper may wish to say a little about the Institute for Security Studies, on which he has a degree of expertise having been the director of its predecessor organisation. I have been struggling to discover how far ATHENA is a serious organisation, but my noble friend Lord Garden and I were listening to the director general of the European Defence Agency yesterday morning. I gather that the European Defence Agency has a staff that has grown from 20 to 80 in the past six months and is due to expand further. I am conscious that the European Police College (CEPOL) is just getting underway and established in this country in Bramshill, and someone brought to my attention yesterday that the European School Culham has some elements of special status and immunities because it operates in this country—indeed, there was an order to that effect. There are also Eurojust and Europol. Things are moving very rapidly under Titles V and VI which relate to justice and home affairs and the security and defence dimensions of the European Union. We tabled these amendments to mark that, as a member state of the European Union, Her Majesty's Government ought to be asking on our behalf how far these agencies, as they expand, need to have these traditional diplomatic privileges.

I also asked some American colleagues whether federal district courts or representatives of the FBI operating in Oklahoma have any special status or privileges because, in a sense, they are foreigners operating in Oklahoma. Of course, they do not. They are subject to state tax and state law as well as federal law.

We recognise that the European Union is an intermediate body, not a federation, but there are questions that need to be asked as the European Union slips from the traditional world into another and as a large number of new agencies are created and are likely to go on being created in the future.

Lord Pearson of Rannoch

I hesitate to break the new-found harmony that has been established with the noble Lord, Lord Wallace of Saltaire, by saying that the privileges and immunities that we are conferring on the European Union in this Bill—if we do so—take us one more step along the road to the mega-state that we all fear. It is a step in that direction.

This is the time to repeat the Written Question the Answer to which has winged its way post haste, at the very last moment, to my office in my absence. I feel sure that the Government have the Answer ready to give us now. The Written Questions that concern these amendments simply ask the Government which European Union institutions are already eligible for immunities and tax privileges—if there are any institutions in that category. What are those immunities and privileges? To which European Union institutions do the Government propose to grant similar status under the Bill? I hope that the answer will not be bodies established under Titles V and VI of the TEU, because that would not be very helpful. I would be most grateful if the Minister could tell me in detail what we are dealing with at the moment.

Lord Stoddart of Swindon

I would like to say a couple of words because people are very concerned about many European Union organisations. Many people believe, for example, that the servants of Europol have immunities in this country that ought not to be granted to them, because they involve police work. In this country, where police work is involved, we have the police complaints commission—or whatever it is now called—to which people who are aggrieved can appeal. However, I understand that, in the case of officers operating under Europol, there can be no redress.

People are concerned about the immunities that have been granted to Europol and will presumably be granted under the area of foreign policy and security, which would be a huge extension of the foreign policy and defence regimes. There will be movement of all sorts of people between countries and presumably those people will be granted immunities. That is a very big extension of the whole business.

The noble Lord, Lord Wallace, said that he believed that the noble Lord, Lord Pearson of Rannoch, and myself would agree with him that the EU was more than an intergovernmental organisation. Of course, that is what we have been saying for a very long period of time, and it is that which concerns us; that far from being an intergovernmental organisation it is developing not into a federation, but into a unitary state. Government sources say that is not so; it is still a collection of independent states. Although there is agreement between the noble Lord, Lord Wallace, and the noble Lord, Lord Pearson, and myself, he is obviously not in agreement with the Government, because the Government say that we are not on the way to federation, we are not on the way to a single European state, and we remain a collection of independent states.

I agree with the noble Lord, Lord Wallace. Let me try to get to the logic of this. If he is right, and if we are on the road to a unitary or a federal state, why do they need immunities? Scotland, Wales and Northern Ireland, because they are part of the United Kingdom, do not have special immunities. Why on earth would they want these immunities, if we are on the road to this single state, or federal state? Because they will be operating in what is, even now, virtually a unitary state.

The noble Lord, Lord Wallace, has introduced an important point. In answering my question, it may well be that we will get the Government's point of view as to what exactly the European Union is. Perhaps they could reassert that it is a collection of independent, sovereign states, and that is how they intend it to remain. Or do they agree with the noble Lord, Lord Wallace, that we are on the way, or perhaps we are virtually there, to a unitary or federal state?

Lord Roper

I want to raise one question with the Minister that follows up something that my noble friend Lord Wallace said on an earlier amendment. I should declare a historic interest; I was the founding director of a body which was then not part of the European Union, but was a subsidiary of another international organisation, Western European Union, but which has now become an agency of the European Union, and would therefore perhaps in some way benefit from these things. To my surprise, it is mentioned in Amendment No. 6.

I want to make a distinction. Do we necessarily need to have the same sorts of immunities for all the sorts of agencies that might be created under the European Union? There seems to me to be a possible division into three categories. There are obviously agencies and institutions that are based in this country, which would need to have a set of immunities and diplomatic status for some of their staff. There is a second category of those based outside the United Kingdom, but who may have substantial operations in this country, and therefore are here on a regular basis, although not physically based and paid within the United Kingdom. There is a third category of organisations that are based outside this country, and whose staff either make no visits, or very occasional ones.

It may be that as a matter of habit and in terms of diplomatic practice, it is appropriate to provide the same sets of immunities for each of these three categories of agencies. In the light of what my noble friend Lord Wallace said earlier about looking at this again and trying to see whether one does not need to have a rather more discriminating approach, I raise with the Minister the question of whether we need to provide exactly the same sorts of diplomatic immunities for all these different categories of agencies that might be created under the European Union.

5.45 p.m.

Lord Triesman

The amendment would limit the EU bodies on which privileges and immunities could be conferred under the clause to those bodies established pursuant to the provisions of the Maastricht Treaty. The words, as amended from time to time", are intended to cover the amendments made to the Maastricht Treaty by the Treaty of Amsterdam and the Treaty of Nice.

I shall give an example. One EU body on which we wish to confer privileges and immunities under the clause is the EU Satellite Centre, which provides valuable satellite imagery analysis, helping the EU to monitor crises across the world. The Satellite Centre was established by a Council joint action in July 2001 pursuant to Title V of the Treaty on European Union. The joint action establishing the Satellite Centre is based not on the provisions of the original Title V in the Maastricht Treaty, but Title V as amended by the Amsterdam Treaty. To delete, as amended from time to time", could therefore render the clause meaningless. To ensure that we have good and clear legislation, we need to ensure that both the Amsterdam Treaty and the Treaty of Nice, as well as the Maastricht Treaty, are covered by the clause. The Government therefore consider it essential to retain, as amended from time to time", and cannot for that reason accept the amendment.

I appreciate the important questions raised by noble Lords in this short debate that bear on how we understand the whole of the matter, and I would like to try to deal with them. I shall start with the noble Baroness, Lady Rawlings, and perhaps the most fundamental question of the debate. It was on the fact that the constitutional treaty might, if carried by Parliament, in due course replace the Maastricht Treaty rather than amend it. I confirm that, as amended from time to time", will not cover the constitutional treaty, if it ever enters into force. The process is separate and distinct, and Parliament will be where the Treaty on European Union will be discussed, freestanding of anything that the Bill attempts to do. I want to deal with that as clearly as I can.

We have rightly been asked further questions by the noble Baroness on the legal personality of the bodies set up under the EU, bodies set up by an entity that itself does not have a legal personality—that point was well made. The bodies need legal capacity, privileges and immunities to operate. Once we have agreed to Council decisions or other measures to establish the bodies, the UK is under an obligation to confer the powers under international law. The fact that the EU does not have a legal personality, except to the extent that it concludes agreements pursuant to Articles 24 or 38 of the Treaty on European Union, is immaterial to that fact. The agreements made, and only those agreements, are the bases on which we proceed.

At the moment, six bodies have been established by the EU under the Treaty on European Union. They are: Europol; Eurojust; the Satellite Centre, which I mentioned; the Institute of Security Studies; ATHENA, the financing mechanism; and the European Defence Agency. Only three of those bodies are relevant to the Bill, where existing legislation does not allow us to meet in full the commitments that we have made on the necessary privileges and immunities. Those are the Satellite Centre, the Institute of Security Studies and ATHENA.

There are 19 agencies of the European Community. Granting privileges and immunities to those agencies is covered by the European Communities Act 1972. Community agencies are distinct from the Community institutions, such as Council, Parliament, Commission and so on, due to their own legal personalities. That constitutes the distinction; one set has their own legal personalities, and the others are set up by secondary legislation to accomplish a wide range of specific technical, scientific and managerial tasks specified in relevant Community Acts. That is why the two sets are different.

The noble Lord, Lord Wallace, asks where we are going with all this. I do not want to paraphrase his point unfairly—if I do, no doubt he will correct me in any event—but, broadly speaking, we in Europe live in democratic states. Although it is not the case that there are no other democratic states elsewhere, a great many of the treaties, obligations, privileges and immunities that flow from them were constructed when there were many conflicts between states. Many of the states in conflict were not democratic or modern in the way that we understand the terms.

It may not be appropriate in Committee to enter into the broader, philosophical argument, but I want to make an observation, and I hope that it might become part of our debate in due course. We would not serve ourselves well if we began to treat our international obligations as essentially two-tier, those tiers being obligations with states that we regard as very like us, and those with states that we think poor or inferior compared with us. I am not making a distinction between Europe and everywhere else, but one between one might be a rather Euro-centric view and a view about what is happening in the rest of the world.

As the Bill shows—it can be seen elsewhere—we have tried to treat our international obligations in a way that expresses a relatively level view of our expectations about the nature of mutual obligations between states, rather than some of them having the imprint of being okay with us, and others the imprint of being second-rate or inferior. I make that general point because several of the arguments that have flowed about how we might distinguish between different arrangements could lead to a two-tier or multi-tier system of dealing with international obligations.

The noble Lord, Lord Wallace, also asked more specifically whether the Bill conferred diplomatic immunity on organisations or individuals concerned. It does not, but it enables the conferral of privileges and immunities by an Order in Council. Those are necessary for us to fulfil our international obligations. The privileges and immunities that we confer on international organisations is much less in extent and scope than the privileges and immunities enjoyed by diplomats. In that, the noble Lord himself pointed out that there were differences in application; I simply confirm that his proposition is accurate.

I shall turn to the points made by the noble Lord, Lord Pearson of Rannoch. He made them in a question, and I shall deal with only the question that he specifically asked, although I know that there were two Questions, to which replies have been given by the Government.

Lord Pearson of Rannoch

The second Question will come up on the next amendment.

Lord Triesman

I am delighted to hear that. The 1965 protocol on the privileges and immunities of the European Community conferred on the European communities a range of privileges and immunities considered necessary for the performance by the communities of their tasks and functions. Those privileges and immunities are similar to those conferred on other international organisations, and include immunity from jurisdiction, exemption from taxation, exemption from customs duties, and prohibitions and restrictions on importation and exportation of articles for official use.

The provisions of the 1965 protocol apply to the communities, their institutions—the European Parliament, the Council, the Commission, the Court of Justice and the Court of Auditors, the European Central Bank, the European Monetary Institute and the European Investment Bank—and, in accordance with the protocol, to certain representatives of member states and certain officials and servants of the communities. The provisions of the protocol have also been applied to bodies created under the Community and for certain officials and staff engaged in the work of such bodies. The 1965 protocol and the privileges and immunities flowing from it are given effect in UK law by the European Communities Act 1972, as I said a few moments ago, and the International Organisations Bill will not alter that situation.

The International Organisations Bill will, however, enable the UK to confer legal capacity and privileges and immunities on bodies established under powers conferred under Title V—provisions on a common foreign and security policy—and Title VI—provisions on police and judicial co-operation in criminal matters—of the Treaty on European Union and on certain categories of individuals connected with those bodies. At present three bodies exist on which the privileges and immunities will be conferred pursuant to Clause 5 of the International Organisations Bill, if it becomes an Act. I mentioned them a moment ago: ATHENA, the EU Satellite Centre and the Institute for Security Studies.

The 1965 protocol on the privileges and immunities of the European Communities applies only to European institutions. The main institutions include the European Commission, the European Parliament and the European Investment Bank. Examples of privileges and immunities under the 1965 protocol include immunity from jurisdiction, exemption from taxation and customs duties and prohibitions and restrictions on importation and exportation of articles for official use.

The International Organisations Bill will enable the UK to confer legal capacity and privileges and communities on bodies established under Title V and Title VI—which I mentioned a few moments ago—of the Treaty on European Union and certain categories of individuals connected with those entities. These bodies are not European Union institutions. The 1965 protocol does not apply to EU bodies unless an EU regulation expressly provides that the protocol will apply to a specific body. No provision is made by any EU regulations for the protocol to apply to the EU bodies in question. They are set up by decisions of the Council of Ministers. Member states reach unanimous agreements to establish these bodies and to agree privileges and immunities in order to allow the bodies to function properly. Where such an agreement is reached, the UK and all other member states are under a clear obligation to implement the agreement by conferring legal capacity and privileges and immunities on these bodies. As I say, three bodies currently exist on which these provisions have been conferred. I shall not discuss the nature of the three bodies as I believe we have covered that well enough. However, I hope that constitutes a full answer to the questions asked by the noble Lord, Lord Pearson of Rannoch, and that it will satisfy him.

The noble Lord, Lord Stoddart, asked about Europol. Under an order made by the Privy Council last December, so far as the officers of Europol are participating in investigations in this country, they do not enjoy privileges and immunities as Europol officers. That should alleviate the anxieties people who are concerned about that.

The noble Lord, Lord Roper, asked whether there should be different levels of diplomatic privileges and immunities for all EU bodies and whether we should grade them according to a set of criteria that he mentioned. I believe that there could be other such criteria. Some privileges and immunities are not given to all EU bodies—a point also made by the noble Lord, Lord Wallace. The privileges and immunities conferred on EU bodies will be dependent only on their functional need; that is, those privileges and immunities will be conferred that are necessary for them to function effectively and not otherwise. We certainly do not confer diplomatic levels of privileges and immunities on EU bodies and we do not intend to do so.

The powers to confer those immunities and other responsibilities have been looked at and are detailed, as several Members of the Committee have mentioned, in the report of the Delegated Powers and Regulatory Reform Committee. Members of the Committee have listened to a rather long response, which I hope has covered properly the very serious points that have been made. The report shows that there is no reason for anxiety about the way in which this Bill deals with those matters. It does not go beyond any international obligation, but it meets proper international obligations. I hope that in that light the noble Baroness will consider it appropriate to withdraw the amendment.

6 p.m.

Lord Wallace of Saltaire

Perhaps, since Amendments Nos. 5, 6 and 7 are grouped here, it may be appropriate to say a little about Amendment No. 7 and to turn to some of the general points made by the noble Lord, Lord Triesman. Our concern about Clause 5, lines 24 to 30, precisely follows phrases, such as that in Clause 5(2)(b), which reads, provide that the body shall … have such specified privileges and immunities as … it is in the opinion of Her Majesty in Council appropriate for the body to have", and in subsection (c), which reads, confer on such specified classes of persons … such specified privileges and immunities as … it is in the opinion of Her Majesty in Council appropriate to confer on them". It is entirely justified for us to ask for more information about what privileges and immunities are appropriate and when, rather than to leave it to the Government to put them in. That is precisely why we are asking the Government to conduct a review of where we are.

It strengthens our case that the Government should rest their argument on a protocol that was agreed and signed by the original six members of a European Community that is now a 25-member European Union in 1965, when I was still in full-time education and my noble friend Lady Falkner was still in school. I shall not speculate on what the noble Lord, Lord Triesman, was up to in that period. It was 40 years ago.

The European Economic Community was a very small organisation with very limited competencies. It has grown in terms of policies, competencies and so forth enormously over 40 years. I would suggest that this is something that deserves to be looked at again. I understand that the European Commission has now started a review of its policy towards agencies because those agencies, under Titles I to III, are now proliferating. I had a very helpful conversation with one of the officials concerned with that review yesterday.

We are suggesting that Her Majesty's Government should contribute positively to that review and should look at the overall question of the way in which the European Commission and the various agencies, including those established under Clauses 5 and 6, relate to the national laws under which they operate.

I recall when I first began to study the European Community, which I regret to say was not quite 40 years ago but is getting on for that, that there was a duty free shop underneath the Berlaymont where Commission officials could go to buy cheap whisky and everything else. I think that I am right in saying that that has now disappeared, and quite rightly so. But there are some other things that again one wants to look at.

I am always rather doubtful of the extent to which the European Commission, for example, imposes on applicant members of the European Union criteria for employment law and so forth that the Commission itself is not entirely subject to and does not entirely observe. So there are a range of questions that, as loyal members of the European Union, we and other governments and the European institutions should now, appropriately, ask. It is not only a question about the European Union. The Council of Europe and the OECD also seem to be bodies that operate among friendly countries, all of which are democracies, which do not need the same privileges and immunities as traditionally were established to formal international organisations 50 to 100 years ago. That is the case that we are making.

I understood from my conversation with an official of the Commission that one of the historical reasons for this is that a lot of these European bodies are in Belgium and Luxembourg and that large tax revenues would flow to Belgium and Luxembourg if they were to pay national taxation. There are other ways and means of dealing with that.

The issue of use of domestic resources and obligations clearly has to deal with. My wife tells me, for example, that one of the conditions of her place of work is that she is not allowed to use Italian national health facilities because she does not pay Italian tax. Those are anomalies that need to be looked at.

To come back to my personal situation, I do my best to persuade my friends and colleagues that, since I have to make the sacrifice, as I shall next weekend, of going to Florence every other weekend, my wife needs to be paid an allowance for her dependent spouse to do so. But the idea that going to Florence every other weekend is a sacrifice is a little different from my wife being a member of an organisation based in Tbilisi, for example, or somewhere else.

Lord Stoddart of Swindon

Can I make a sacrifice for you?

Lord Wallace of Saltaire

We are not dealing with the same sorts of international organisations as 60 or 70 years ago. That is the whole thrust of arguments from these Benches.

Lord Roper

I was most grateful for the explanation from the Minister, in particular the reason why the 1965 protocol cannot apply to those bodies that have been created under Titles V and VI and why one has therefore to make specific provision in this Bill for the Orders in Council to be made. This is therefore an enabling Bill.

Just to go back to the point that I made, it would be very valuable if, before we get to the final stages of consideration of the Bill in this House, at least it were possible to see in draft the orders that would be likely to be made for the various bodies to which the Minister referred; namely, ATHENA, the Torrejón European Union Satellite Centre and the Institute for Security Studies in Paris. In a sense, that would take up the point that I tried to make. We might want to have different sorts of privileges for different sorts of institutions. We are not issuing all of them with exactly the same. In each case, it would be relevant to the degree in which a body operated within the United Kingdom. I assume that that would be one of the criteria to be applied.

Lord Pearson of Rannoch

Perhaps I may press the Minister on what he said about Europol. I think that he said that Europol did not enjoy immunity and that its officers did not enjoy immunity. I ask that particularly because there is a very disturbing story going around the City of London that recently a number of leading City institutions were raided by Europol officers simultaneously by teams of about a dozen officers each. Those officers were on a fishing expedition to see if the institutions concerned might have evidence that would be useful in a commercial case in Europe.

Those who have told me of this incident say that the officers behaved in a very dictatorial way and even informed the wretched recipients of their attentions that they were not allowed to discuss the visit. They blocked off the reception areas and attempted to freeze the buildings' offices while they carried out a search. I do not want to go further into the detail of the incident because obviously I am looking at it under a separate initiative. It would be very interesting to know from the Minister whether Europol in that action enjoyed any form of immunity. That would be helpful to the institutions concerned.

More generally, I am very grateful to the Minister for his exposition of the present state of play with immunity in the European Union and how that will progress if this Bill goes through. I do not want to sound ungrateful, but it would be very useful to have from the Government a list of the 19 agencies to which the noble Lord referred as being given immunity under the treaty of accession, and generally to have a list of all the bodies that currently enjoy immunity and those that might enjoy immunity, tax privileges and so on when this Bill has been passed.

I notice that the Minister referred to the European Commission, the European Parliament and the European Investment Bank. I do not think that I heard him refer to the Luxembourg Court of so-called Justice, which, as the noble Lord will know, many of us do not regard as a court of law at all but rather as the engine of the treaties. Would I be right in thinking that the Luxembourg Court also enjoys similar immunities?

I do not wish to detain the Committee now, but it would be helpful to have the detail of all the bodies concerned spelt out on paper; that is, those that already enjoy these immunities and those that might enjoy them in future.

Baroness Rawlings

I am glad that other noble Lords share my concerns.

Lord Stoddart of Swindon

Is the noble Baroness winding up?

Baroness Rawlings

No. I agree that putting a list of the bodies to which privileges and immunities will apply is one way of making it clear to all exactly who is covered and who is not. It would also ensure that the list is amended and updated over time as new bodies would have to be added to the list, unlike my suggested list that is to be placed in the Library.

While I support the measure, I would be interested to know what the Minister thinks. Would he undertake to keep an up-to-date list on the department's website, if not on the face of the Bill? I am unsure but I think that we might also need to have another amendment in conjunction with this enabling the Secretary of State the power by order to amend the list.

Lord Stoddart of Swindon

My point arises from what the noble Lord, Lord Pearson, told the Committee about a raid on premises in the City. I accepted the answer that the noble Lord, Lord Triesman, gave to me about the immunity of Europol. He has obviously received advice that it has no immunities. But, from what the noble Lord, Lord Pearson, said, it appears that Europol has some immunities and, indeed, is acting improperly if it is threatening people with sanctions if they as much as dare to give out facts in public. I do not know whether the Minister has anything further to say on that.

Lord Triesman

I shall try to sweep up the points as briefly as possible, but, again, a number of very substantive points have been made. I will certainly ensure that a list of the 19 agencies is placed in the Library of the House immediately. I am more than happy to discuss with officials the best way of ensuring that the list as updated—if ever—because of additions is made available. I can see no reason why that should not be the case. I undertake to do that.

Perhaps I may deal very quickly with a separate issue.

6.15 p.m.

Lord Pearson of Rannoch

Can the Minister distribute that list to Members of the Committee? It would be helpful if we could all have copies.

Lord Triesman

By all means, I shall circulate it. There is no problem whatever, in my view, in ensuring that everybody has it. I should be delighted to do that.

First, I shall deal with some of the issues which are probably not right at the heart of the debate; I hope that Members of the Committee will take no offence when I say that. I have nothing to add to the points that I made about Europol. It was a clear statement, and I would prefer that it stay a clear statement. I am not able, for obvious reasons, to go through what might have happened in any particular police action in any particular location, about which I do not know and of which I have seen no proper or full account. I do not know what steps are taken by policemen from Europol or elsewhere to ensure that they go about their business in an unimpeded way in conducting whatever investigations which they feel are appropriate. I do not want to speculate about that matter, and I hope that Members of the Committee will not feel that that is a dismissive response. I simply feel that the original, fundamental statement is the most helpful way in which to get a clear position on the record.

I turn to the whole issue about which organisations have immunities and what level of immunities. Those points have been raised by most Members of the Committee who have contributed to the debate. First, I should say that the Court of Justice was mentioned in my response, and the noble Lord, Lord Pearson, should find it in the Official Report, when he has an opportunity to read it. The general issues are, I think, as follows.

I turn first to Orders in Council and what they can and cannot do, as that goes to the heart of so much of what we are talking about. Any Order in Council made under the clauses with which we are concerned shall be framed so as to secure that the privileges and immunities conferred by the order are not greater in extent than those which at the time when the order takes effect are required to be conferred in accordance with any agreement to which the United Kingdom, or Her Majesty's Government in the United Kingdom, is then a party. The agreement should specify the boundaries within which the whole of the system of privileges and immunities should operate, and it should not operate beyond that. That would be the only way in which any system of international treaty-making could possibly operate in any case.

The noble Lord, Lord Roper, particularly asked about, or probed the question of, the 1965 protocols. The protocols, privileges and immunities of the European Community apply only to European institutions. It is worth repeating for the sake of clarity that bodies set up under Titles V and VI of the Treaty on European Union are not European institutions. Examples of such institutions are the Commission, the European Parliament and the European Court of Justice. The protocol does not apply to EU bodies unless an EU regulation expressly provides that a protocol will apply to a specific body. That comes back to the point that I made about the legal basis for proceeding with the whole provision in the first place. No provision is made in any EU regulation for the protocol to apply to the EU bodies in question. I hope that those comments clarify that point.

The noble Lord, Lord Wallace, raised several related points. There are organisations, such as the OSCE, with which we dealt in the last clause, which do not need privileges and immunities. The effect of doing so would be to create a situation in which one group, mainly of western states, are formally categorised as democratically superior to others. That comes under the point that I made about a potential danger. That would not be acceptable or helpful to multilateral relations. The issues that we may have with such states are no doubt important to pursue—I do not deny that for one second—but they will not be best pursued by writing into the formality of international agreements that we regard some of them as second rate. I believe that I made that point earlier in the discussion.

Some have asked whether there is too much discretion allowed by the clauses proposed in the Bill as regards privileges and immunities conferred. I hope that I have expressed the basis on which those privileges and immunities can be constructed, and beyond which they may not go. If that is felt to be a sufficient basis in current law—and of course I am citing current law rather than proposed law—I hope that the critical issues that have been raised in the debate have been expressed in Committee today, as far as I have been able to do so.

I add the following final points. Listing a limited number of organisations in the Bill rather than describing the category is probably not the best way in which to proceed, but I can understand that in probing the question we have drawn out the fundamentals of the issue. I believe that we have probably dealt with the critical definition of "legal capacity", which is set up in the same way. That is another matter covered by the amendments. Finally, there are matters which will probably be dealt with separately—and I know that the noble Lord, Lord Pearson, in his Written Questions, has queries about the rights of families and others, going beyond the most obvious categories of diplomats and the staff of bodies with which we have dealt up to now.

I hope that those comments answer appropriately the questions that have been raised. It is in that light that I invite Members of the Committee who have amendments in this group either to withdraw them or, in due course, not to move them.

Baroness Rawlings

I thank the Minister for his detailed and interesting answer and for his assurance regarding the constitutional treaty. I look forward to receiving answers to some of the unanswered questions in writing. Therefore, we may return to the matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wallace of Saltaire

moved Amendment No. 6: Page 3, line 19, at end insert— (1A) The bodies to which subsection (1) above applies include, but are not limited to—

  1. (a) ATHENA,
  2. (b) the European Union Satellite Centre, and
  3. (c) the Institute for Security Studies."
The noble Lord said: In moving Amendment No. 6, I shall speak also to Amendment No. 7. We look forward to hearing more detail from the Government. We would certainly wish to reintroduce Amendment No. 7 on Report unless we have some more detailed information from the Government by then.

I note the vigour with which the noble Lords, Lord Pearson of Rannoch and Lord Stoddart of Swindon, defended British sovereignty against incursions against it. I hope that when some of my noble friends raise questions about the UK/USA agreement and the astonishing autonomy of US personnel on British territory, on Menwith Hill and elsewhere, we may attract the same degree of support from them. I beg to move.

Lord Stoddart of Swindon

I would very much agree with the noble Lord. As a matter of fact, when we discussed the then Extradition Bill, it was I who first raised the matter in this House.

Lord Wallace of Saltaire

I thank the noble Lord for thsat reassurance.

I note, too—and I am encouraged by a nod from the noble Baroness, Lady Royall—that there have, quite correctly, been a number of changes in how the rights and privileges given to the European Commission have operated over the past 40 years. The process of reform of the Commission and the EU agencies, which many of us support very strongly and which Commissioner Kinnock pushed through, should take the process further. That is something that we want to encourage Her Majesty's Government to do. It is a very important part of accustoming us to the fact that the European Union is in many ways part of our daily lives and ought not to be treated as if it were simply another international organisation, in the same way as the United Nations is an international organisation. Again, in that regard, I find myself disagreeing with some of the tenor of the Government's remarks.

These are all points to which we shall return, but we look forward very much to hearing further on them from the Government. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 7 not moved.]

Lord Wallace of Saltaire

moved Amendment No. 8: Page 3, leave out line 37. The noble Lord said: The amendment relates to family members of people who work for inter-governmental organisations. With these three amendments, we are raising the question why one needs to extend to family members privileges under European agencies. I quote from J. Craig Barker's book, The Abuse of Diplomatic Privileges and ImmunitiesA Necessary Evil? He says: Arguably the most controversial provision in the 1961 Convention is one which is fundamental to the whole question of the abuse of diplomatic privileges and immunities, that is the question of who, apart from the diplomatic agent, is entitled to the privileges and immunities laid down in Articles 29 to 36 of the Convention? He goes on to give the example of the grandson of the Brazilian ambassador to the United States who murdered someone in a club one night.

That is some distance from where we are, in the European Union, but we should know why members of families who form part of households should be included within the rather limited diplomatic privileges and immunities which are given to staff and officials of European agencies, and of the European Court of Human Rights, although different criteria may well apply to the International Criminal Court. I beg to move.

Baroness Rawlings

We agree with Amendment No. 8. However, what other persons does Her Majesty's Government envisage will need such immunities and privileges awarded to the officers and staff of the body in question? Apart from the Brazilian grandson, would it cover the cleaners, or are they covered by the word "staff" in subsection (3)(a)?

Lord Pearson of Rannoch

This is perhaps the point at which I should put my second Written Question on to the record in these Committee proceedings. My original question was double-barrelled, the first part asking how the Government defined the, other persons connected with the body, and members of their families who form part of their households". To whom do the Government propose to grant immunity under subsection (3)(b)? Secondly, to how many United Kingdom residents do the Government expect such immunity to apply? I refer to people both here and living abroad.

I appreciate that quite a lot of these organisations, though not all of them, are based abroad—if the European Union still counts as abroad. I begin to have my doubts, but let us assume that it does. How many people affected by the provision live here, and how many UK residents living abroad will benefit from it? The noble Lord, Lord Wallace of Saltaire, was good enough to tell us, both at Second Reading and this evening, that his wife might be covered by the provisions.

What does the Bill mean when it refers to members of a household? I am not joking, but does it actually include their dogs? Supposing a dog belonging to one of these people was to bite someone in the street, would that be covered? I am sure that my wife, who is very keen on our dogs, would insist that they formed part of our household. There could be a serious point here to which it is worth having an answer.

Baroness Crawley

I suppose that the noble Lord's dogs are Euro-sceptics too.

Lord Pearson of Rannoch

I am delighted to inform the noble Baroness that all my dogs are German.

Lord Stoddart of Swindon

What about mistresses?

Lord Pearson of Rannoch

My noble friend, if I may refer to him as that, asks about mistresses. Of course, that is something about which I know very little. However, it should seriously be included in the question. What do we mean by these provisions?

Lord Triesman

The amendment proposes the deletion of the last line of subsection (3), which provides that the persons on whom privileges and immunities may be conferred under subsection (2)(c) include family members of officers and staff and other persons connected with EU bodies. I will go into further detail in specific response to the questions asked by the noble Lord, Lord Pearson.

6.30 p.m.

If the amendment were agreed, it would not be possible to confer privileges and immunities on family members and persons connected with EU bodies. I say immediately that I will not venture into answering any questions about household pets. I know from bitter experience that the moment one starts talking about people's household pets—few of whom can be brought to trial or claim any immunities or privileges in that sense—one gets into trouble because of the other sorts of household pets one fails to mention which apparently one fails to hold in such high esteem.

Conferral of privileges and immunities on family members of officials and staff of EU bodies will in some cases be necessary to ensure that the work of the officials is not undermined. If we make the amendment proposed, the UK will not be able to confer privileges and immunities on family members, as noble Lords have pointed out. That could result in the UK not being able to fulfil its EU obligations. It is therefore important that legislative provision is made for the possibility—which I stress—of conferring such privileges and immunities.

Furthermore, any secondary legislation conferring privileges and immunities on family members under this clause will be subject to affirmative resolution and will therefore be debated in both Houses. That would give noble Lords a further opportunity to criticise or at least scrutinise the privileges and immunities being conferred.

I understand the point made about affirmative resolution, because it faces everyone with the prospect of turning down the whole of the proposal rather than distinct parts of it, but it is a serious opportunity taken in the House, as many noble Lords will have observed for themselves, to deal with issues that are regarded as highly problematic and to deal harshly with the whole of a piece of secondary legislation should it be manifestly absurd.

The answer to the question asked by the noble Lord, Lord Pearson, covers the sorts of people in general who will come under the umbrella of this provision, if it is decided to extend privileges and immunities to them. Clause 5(3)(b) will cover, among others, persons employed by or serving under the body as experts or as persons engaged on missions for the body, representatives to the body, representatives on or members of any subordinate body or sub-committee, family members of those persons, and family members of officers or staff of the body.

As ATHENA, the European Union Satellite Centre and the Institute for Security Studies are all based outside the United Kingdom, it is expected that few if any UK residents connected with those bodies would enjoy the immunities. However, I will not go through the point that I made earlier about why bodies are covered even if they are not anticipated to work in the United Kingdom in the near future. The International Organisations Bill is a small technical Bill in that respect. It enables the Government to meet outstanding international commitments to confer legal capability and privileges and immunities on a number of international organisations and bodies and on certain categories of individuals connected with them. The Bill is clear about that.

Clause 5 deals with the bodies established under the Treaty on European Union. It is not possible to provide a comprehensive list of all the categories of persons that will fall within Clause 5(3)(b). The purpose of the clause is to ensure that we can confer privileges and immunities on all categories of persons that we need to, pursuant to EU Council decisions or other measures. The question about whether it was likely that the measure could be extended within the terms of the definitions that I have provided in Grand Committee today was fairly put. For example, could the cleaners or personal staff working for people in those bodies be included? The answer is no—there could be no functional justification for that. I go back to my original point on the root law on the matter, which was about the functions having to be specifically related to the outcomes that we are discussing.

I do not believe that the privileges and immunities could be extended in a way that everyone would find not only undesirable, but thoroughly risible. That is a belief on which I am advised, rather than simply being a personal belief. In that light, I hope that noble Lords will feel that I have answered the fundamental questions put to me today and that the amendment can be withdrawn.

Lord Pearson of Rannoch

I am not sure that I heard the noble Lord answer the second part of my question, which was about how many United Kingdom residents the Government expect the immunity to apply to. That includes those living both here and abroad. Can the Government hazard a guess at that?

Lord Triesman

I apologise; I did not answer that. I will and must answer it, but I shall do so in writing. Rather than hazarding a guess, I should like to be precise about it.

Lord Wallace of Saltaire

We might wish to reintroduce Amendment No. 8 on Report, because I am not entirely convinced by the argument. I again stress that we are not where we were in 1965. In 1965, going to France from Britain was an expedition, and one spent a good deal of time going through customs on both sides of the English Channel and showing one's passport to people who quite regularly wished to inspect all its pages. I regret that the United Kingdom has not yet become a full member of Schengen but I wave my passport at someone who, even under current circumstances, rarely looks at the inside as I come through on a regular basis, and I do not feel that I am going to a foreign country in quite the same way.

Much has changed. Household pets travel rather more easily across Europe now than they did a few years ago; that is also something in which the world is becoming a little different. I was one of those who campaigned hard to have the European Police College come to Britain, and I am very glad that it has done. Now that it is here and will train lots of people over the next few years, however, I am not sure that it quite needs exceptional status. Again, the issue is one of developing complexity.

I am not entirely clear what privileges need to go to the European school in Culham, or elsewhere. I am certainly not persuaded that family members need particular privileges. Family members of foreign banks operating in London do not need particular privileges. Why do people who work for European agencies operating in Britain need them? Again, we recognise entirely that Britain alone cannot change regulations on the matter. I was extremely happy to hear that the European Commission was itself beginning to conduct a review of it. We therefore want to encourage Her Majesty's Government to put it in the context of Commission reform and the developing policy of the European Union, and to encourage other governments to take on board that we should not automatically apply old, established rules—most of which were negotiated before we were born, and quite a lot of them before we started our careers—into the foreseeable future. My party regards that matter as a necessary response to the increasing interdependence within which we live.

Lord Triesman

I want to repeat one point just made by the noble Lord, Lord Wallace. It ought to be said, otherwise misapprehensions about the fundamental nature of the questions in this brief debate will persist. The United Kingdom Government have made a number of undertakings under the current treaties to which we are party. This legislation tries to make good the promises that we have made. There is common ground between us on that. There seems to be a very persuasive argument to suggest further review, and that a good deal would be learnt about the development of international relations and international organisations in such a further review, including within Europe. However, it does not resolve our immediate problem, which the Bill is intended to address. That is a very much more limited problem, and I hope that I have set it out as straightforwardly as I can.

Lord Wallace of Saltaire

Indeed you have made it clear. I was merely concerned to extract from the Government a commitment that such a review will be conducted, and that Her Majesty's Government will not only conduct a review so far as Britain is concerned, but will commit themselves to taking this issue further multilaterally within the European Union, which is the issue with which we are most directly concerned here.

Lord Pearson of Rannoch

Perhaps I could put on record once again what I said earlier. Of course I accept the system as outlined by the Minister, but I remind him that the people of this country elect and dismiss Members of Parliament about once every four or five years, and the Government are formed of a majority of elected MPs. Only 60 per cent of the electorate now bother to vote in general elections, and modern governments are supported by only some 40 per cent of those who do vote, or about 24 per cent of the electorate. The percentage of those who vote is declining, and trust in our system of parliamentary democracy is eroding steadily. When one sees a Bill such as this, which has been agreed in secret in the Council of Ministers—

Lord Triesman


Lord Pearson of Rannoch

Yes, at least as far as the European aspect is concerned, the agreements in the Council are reached in secret. When Parliament, for which the people vote, elect and dismiss, is asked to rubber stamp infringements of this kind on our ancient liberties, I am not surprised that trust in our system of parliamentary democracy is eroding so steadily.

Lord Wallace of Saltaire

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 [International Criminal Court]:

Baroness Rawlings

moved Amendment No. 9: Page 3, line 44, leave out paragraph (a). The noble Baroness said: This amendment aims to question how far the immunities and privileges provided to the International Criminal Court judges should extend to members of their family who form part of their households, along the same lines as we have been discussing.

I welcome the assurance given by the noble Baroness, Lady Symons, at Second Reading, that the terminology in the Bill would cover civil partners, as recently enacted. I recognise too the need to make sure that judges' work cannot be undermined by threats against close members of their families. This rings true with Article 26 of the founding document of the International Criminal Court, which states that privileges and immunities are, granted in the interests of the good administration of justice and not for the personal benefit of the individuals themselves". Article 15(3) requires immunities for family members in the household only if the judge is residing in the country concerned. Out of interest, how many International Criminal Court judges are currently residing in this country?

The Explanatory Notes seem to envisage the refunding of VAT and other taxation incurred on visits. Will this happen only if a family member is travelling with the judge, or would they be able to claim it on their own independent travel? For example, would the wife of a judge be able to claim back all the VAT on a Christmas shopping spree in London when her husband is in Brussels? If their children are at boarding school or university here when the family's main residence is abroad, will they be able to claim back all the VAT on all the services used by their children? Will the Minister assure the Committee that the British taxpayer will not be subsidising shopping trips under the veil of making certain that the International Criminal Court judge cannot be undermined by the actions of his family?

Can the Minister also explain how these family members will be registered as part of the household? If there is, for example, an elderly relation who spends one half of the year with the judge, and the other half of the year with the sibling of the judge, will she be eligible for immunities and privileges?

I turn to a point on which I would like clarification. It reoccurs in clauses throughout the Bill and not just in this specific clause. If there were a case where an individual consistently abused the immunities and privileges awarded to him, will these privileges be removed? Can they be removed? What process would be used and who would decide whether he has abused the position awarded to him?

Granted, these suggested changes are in the interests of good administration of justice and not for the personal benefit of the individuals themselves. However, for people who hold positions of authority in organisations, particularly in the ICC and the ECHR, it is vital that they should set an example and remain accountable for their actions. After all, it is they who are calling others to account. As such, the Minister can see from my questions that I want to clarify exactly how far these privileges are extended to family members. I beg to move.

6.45 p.m.

Baroness Crawley

It is important to confer privileges and immunities on family members of officials of international organisations to ensure that the work of officials is not undermined by threats against close family members. That is why we want to cover family members. My noble friend Lord Triesman said much the same on an earlier amendment.

The proposed amendment would make it impossible for the UK to confer privileges and immunities on family members of senior staff of the International Criminal Court. The consequence would be that the UK would not be able fully to implement its obligations under the agreement on privileges and immunities of the International Criminal Court of 2002, which it signed on 10 September 2002.

Conferral of immunities and privileges on family members of senior staff of an international organisation is nothing new. Privileges and immunities have been conferred, for example, on family members and officials of the following organisations: the World Trade Organisation; the International Maritime Organisation; the International Seabed Authority; the Comprehensive Nuclear Test Ban Treaty Organisation.

Similarly, family members of diplomats enjoy privileges and immunities by virtue of the 1961 Vienna Convention on Diplomatic Relations. Furthermore, by conferring privileges and immunities on family members of senior staff of the ICC, the UK will be doing nothing more than has been agreed by the other 62 states which have signed the ICC agreement, including nearly all of the European member states.

The noble Baroness, Lady Rawlings, asked me a number of questions and I shall do my best to answer as many as possible. I shall reply in writing to any I do not answer. The noble Baroness asked me how many ICC judges reside in this country. There is one; Sir Adrian Fulford.

The noble Baroness also asked whether, if an elderly relatives resides for half a year with the judge and half a year somewhere else, how the relative would benefit from privileges and immunities. The elderly relative will enjoy privileges and immunities only when residing with the judge. Once she stops residing, she will not enjoy privileges and immunities.

The noble Baroness, Lady Rawlings, asked about refunds of VAT to officials of the International Criminal Court. Refunds of VAT will be made only to the organisation—to the ICC itself—for official activities and not to individual officials. She asked me several other questions which I shall answer in writing.

Lord Pearson of Rannoch

Before we leave the amendment, perhaps I may ask the Minister whether it is true, as the Bill appears to state, that these immunities and privileges will be extended not only to members of the families who form part of the households of the judges and so forth, but also to, persons attending meetings of the Assembly (including persons attending such meetings as observers and persons invited to such meetings)"? That is what the Bill appears to provide, the Assembly being the Assembly of States Parties to the ICC statute, including the subsidiary organs of the Assembly. Is that really what is intended? If so, how is it justifiable?

Baroness Crawley

Yes, that is to be extended to those people to whom the noble referred for the course of their visit so that their work will not be impeded during their official duties.

Baroness Rawlings

I thank the Minister for her detailed answer. We have probed the matter quite far and I look forward to receiving a written reply to the unanswered questions.

I agree with the noble Lord, Lord Wallace of Saltaire, that many of the agreements are outdated and need to be reviewed. Following the commitment given earlier by the noble Lord, Lord Triesman, to look at the matter again, could not the whole issue of immunities and privileges provided in old treaties be raised during our presidency of the European Union? I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clause 7 [European Court of Human Rights]:

On Question, Whether Clause 7 shall be agreed to?

Baroness Rawlings

During Second Reading, the noble Baroness, Lady Symons, explained that the changes in this clause would enable us to withdraw from our reservation of Article 1 of the Sixth Protocol. Can the noble Baroness confirm that this reservation was included in the instrument of ratification deposited in November 2001 and that it was reaffirmed in 20O3 in respect of the Isle of Man? Can she please explain why, when the Government reaffirmed the reservation not too long ago, they have chosen now to change their position? Have Her Majesty's Government been receiving lobbying on tax immunities for family members of judges of the European Court of Human Rights? If so, can she place copies of the correspondence relating to this in the Library?

I want also to reiterate a point I made on Second Reading. Can the noble Baroness please inform me whether she has asked the Joint Committee on Human Rights to report on this issue while the Bill is in the amending stages in this House? I am sure that Members of the Committee will agree that the Joint Committee's report will help inform this section of the debate and it is of little use once the opportunity to discuss it has passed.

There are similar issues here to those we have discussed in relation to Clause 6 and the ICC judges. I do not want to labour the point, but could the Minister clarify how far these immunities extend to family members? Would a teenage son of an ECHR judge causing affray outside a London nightclub be immune? Will it cover share portfolios? Could a judge or a family member go hunting and reclaim the VAT on the cost of hiring a horse? Who would be considered a member of the household? Would they be covered when travelling individually? Would it cover trips outside the country of residence? How would they remain accountable?

Could the Minister also explain to the Committee how tax immunities for ECHR judges and their families sit alongside Her Majesty's Government's domestic plans for judicial pensions? How would she counter the claims that there appears to be emerging one law for lawyers and judges and another for ordinary citizens? It would be of interest if she could provide the Committee with the average salary of an ECHR judge, an ICC judge and a domestic judge.

I continue to recognise the need to support the work of judges vis-à-vis privileges and immunities for their families. However, these judges and their families need to be accountable for their actions. In fact, does the Minister have any evidence that intimidation via the family regarding tax issues has been used in the past to influence a judge of the ICC or the ECHR? What studies have been made which show that it has affected our own domestic judges? Is this setting a precedent that will trickle down the system?

Lord Pearson of Rannoch

In the light of the questions posed by my noble friend Lady Rawlings, perhaps I may ask the Minister whether such privileges apply to our own poor old judges in the United Kingdom. They live in this country and judge our own common law. Do they have these privileges? If not, why not? If not, why should these other people have them?

Lord Wallace of Saltaire

I must delicately remind the noble Baroness, Lady Rawlings, that one of the Members of her Front Bench is a dependent spouse of a judge of the International Court of Justice and has to make spousal visits to the Hague at regular intervals. I have done my best to sympathise with him from time to time.

I appreciate that these clauses are a matter of Her Majesty's Government fulfilling multilateral obligations, but, as with our earlier interventions, our point relates to how far we should be questioning the extension of such international rights. I have some sympathy with what the noble Lord, Lord Pearson of Rannoch, said; that threats against close family members of judges are not those which face international judges, and there are ways in which they can be dealt with. Incidentally, the case of the International Criminal Court is different from that of the European Court of Human Rights, and it would be appropriate for Her Majesty's Government to begin to distinguish between global and European organisations, given the different circumstances within which they operate.

We look forward to hearing much more positive comments from the Government at the Report stage on how far they are willing to promote a review of diplomatic privileges. They are clearly based on a range of outdated arrangements which no longer apply in the world in which we now live.

Lord Stoddart of Swindon

I support everything said by the noble Lord, Lord Wallace of Saltaire. It has been a most amazing afternoon which both sides will long remember. I was impressed when I heard the list of international organisations involved, which is why I have risen. The World Trade Organisation, for example, was mentioned. Why on earth do its officials need the privilege of immunity? I cannot understand why it is extending so far. It seems to me that the whole matter is being treated on an international scale far too lightly.

I repeat that I support the noble Lord, Lord Wallace, in his hope that the Government will pay a great deal of attention to the debate and use whatever influence in whatever body they can, in particular during our six-month presidency of the European Union—God help us.

Lord Triesman

First, I want to express my sympathy for the noble Lord, Lord Wallace. His reputation probably hangs in tatters this afternoon, having worked on it so carefully over many years. He has a distinguished academic career not only behind him but I hope still ahead of him. He will have his work cut out to recover.

I want to make one general point on the issue raised by the noble Lord, Lord Stoddart, and then turn to the others. International relations have become hugely more complex. It is not only that there is a propensity across the world communities to invent more organisations—perhaps there is such a propensity but it is not the critical issue—but it is a hugely complex world. We have chosen to develop institutions—on which the noble Lord, Lord Wallace, is of course one of the great experts in the United Kingdom—to try to mediate those relations, to deal with those complexities and to arrive at civilised agreements, rather than some of the historic ways in which people have tried to resolve difficulties.

7 p.m.

The World Trade Organisation is an interesting example. I cannot believe that it has been an accident that it has been a target of eco-terrorism and that some very violent and disruptive events have been held around some of its meetings. I have no doubt that some of those charged with the intricate issues, sorting out what would otherwise be extremely difficult trade relations and imbalances in a highly liberalised world market, have to do some with some confidence that they will not be subjected to the kinds of threats and intimidation that would make that work wholly impossible. I make the point that, as we begin to consider these organisations perhaps a little forensically, there is a great deal more for us to think about than immediately meets the eye.

As we have mentioned in the discussion on Clause 6 during the Second Reading, the importance of conferring privileges and immunities on family members of officials of international organisations should not be underestimated. It is important to ensure that the work of officials cannot be undermined by threats against close family members. The proposed amendment would make it impossible for the UK to confer privileges and immunities on family members of judges of the European Court of Human Rights.

As a result, the United Kingdom would not be able to withdraw the reservation it made when it ratified the Sixth Protocol to the General Agreement on Privileges and Immunities of the Council of Europe of 1949. This reservation provides that, until such time as the necessary legislation is enacted, the UK reserves the right not to apply Article 1 of the Sixth Protocol in respect of the spouses and minor children of judges". The reasoning behind the reservation was that at the time of ratification the UK legislation was not in place to enable us to implement Article 1 of the Sixth Protocol. Clause 7 fills the gap historically left there and allows us to give full effect to the Sixth Protocol. Conferring privileges and immunities on family members of senior staff of an international organisation is nothing new, as my noble friend Lady Crawley said. It reflects, under the current conventions of international law, most of the ways in which these matters are conducted.

In referring to the way in which these matters are currently conducted, it is clear that if there were a review of these matters across the European Union, in the next six months during the course of the presidency, or whenever, I cannot conceive of circumstances in which the United Kingdom would not have a view to put—and probably a robust view. When the occasion for a review arises, I have no doubt that it will be seized upon. For obvious reasons, I do not, without further consultation with ministerial colleagues, want to talk about initiating reviews other than the ones that we might reasonably anticipate. However, I do intend to have that discussion and to see where the lie of the land is, in the light of the interventions made during the course of this Grand Committee.

Let me turn to the many questions of the noble Baroness, Lady Rawlings, which were almost as intimidating as some of the examinations that I faced many years ago, at about the same time as many of these international conventions were beginning. I have a fear that I shall again miss some of the questions, but I shall deal with as many as I can and will go through Hansard to ensure that we have covered everything.

The noble Lord, Lord Pearson, asked whether the United Kingdom judges would benefit from the privileges and immunities. No, they do not benefit from the same privileges and immunities conferred on judges of the ECHR, but they enjoy some immunities. For example, it is not possible under UK law to seek to prosecute a judge in respect of his work—in other words, the judgments made by him or her in statements of the court and in respect of the official work carried out. In all those respects there are plain immunities.

Let me turn to all the other ways in which United Kingdom judges may be a very oppressed class among us, certainly when compared with others. On the question of the relationship between the salaries of judges in the ECHR and the ICC and of the United Kingdom's judges, real accuracy in the presentation of the scales would be rather better than a general impression, and we will provide those figures accurately.

The questions on tax immunities for judges in the European Court related to the domestic plans for judicial pensions, as the noble Baroness said. We see no link between the tax immunities for judges in the European Court and the Government's policy and domestic plans for judicial pensions. The judges at the Court do not actually receive a pension from the Council of Europe. Their salary is fixed at a level that theoretically allows them to make their own pension provision.

A question was raised about the extent of tax immunities for judges. Judges are exempt in the European Court from income tax in respect of their salaries and emoluments. That exemption does not apply to pensions or annuities paid by the Court and does not extend to any other income source that they may gain as individuals.

Finally, I turn to the whole question of the UK reservation. It applies to the sixth protocol of the general agreement on privileges and immunities of the Council of Europe in 2001, not to the European Convention on Human Rights. I confirm that our reservation was included in the instrument of ratification in November 2001 and was reaffirmed in 2003 in respect of the Isle of Man, which was the centre of the question. Once the Bill enters into force, should it do so, an Order in Council can be made under the then International Organisations Act conferring privileges and immunities on the family members of judges, thus enabling us to withdraw the reservation to the sixth protocol.

The Joint Committee on Human Rights is aware of the Bill. As my noble friend Lady Crawley said—it is worth repeating—it has informed us that it will report on the Bill by the end of January. In all the matters on family members, the same fundamental questions have remained in focus. What are our obligations under current law? Can we fulfil them and make good our word? Should we review them? I will not go through those points again; they have been argued with great force and articulate cogency on the part of the noble Lords who have raised all the questions today. I hope that we have given at least some comfort in recognising that where we are may very well need to give way to a discussion of where we ought to be in due course.

Clause 7 agreed to.

Clauses 8 to 11 agreed to.

Schedule agreed to.

Bill reported without amendment.

The Committee adjourned at nine minutes past seven o'clock.