HL Deb 02 August 1965 vol 269 cc6-21

2.46 p.m.

THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR FOREIGN AFFAIRS (LORD WALSTON) rose to move that an humble Address be presented to Her Majesty praying that the European Space Research Oganisation (Immunities and Privileges) Order 1965 be made in the form of the draft laid before this House on 14th July. The noble Lord said: My Lords, I think it might be to your Lordships' convenience if I dealt with the two Orders on the Paper at the same time; so, with your Lordships permission, I will do so. I know well that Orders of this kind dealing with privileges and immunities are never very popular with your Lordships, but they are necessary in order to enable us to give effect to various international Agreements to which we are parties.

These two Orders refer to the European Space Research Organisation and the European Launcher Development Organisation and the persons who are connected with them. Both these organisations came into being in 1964, in order to co-ordinate European efforts in the field of space research technology, and in the development of the European space vehicle launcher, and both consist primarily of a secretariat, which is concerned with administration, technical planning and establishments in the member countries engaged in the work. The headquarters of both organisations are in Paris, and they have no establishments of any kind in the United Kingdom, nor is it expected that they will have in the foreseeable future. There will, however be, and there are at the present time, occasional visits of members of the staff and experts on the staff to this country, and it is quite possible that from time to time meetings of organs of the organisations will be held here. It will be seen, therefore, that the total number of people is very small—in fact, it is probably in the neighbourhood of 50, at the maximum—and they will be here only sporadically.

The Orders are, in general, similar to previous Orders which have been placed before this House in respect of European organisations, but there are certain important modifications and limitations which have been written into these Orders, largely, I may say, in compliance with views which have been expressed from time to time by your Lordships and in another place. I shall deal with these exceptions because I think they are important. For the first time it will be possible to take proceedings, in respect of motoring offences and accidents, against employees of the organisations, with the sole exception of the heads of the organisations. It will be possible, also, to sue the organisations if one of its motor vehicles causes damage or is involved in a traffic offence. Our spokesmen at the negotiations for the Protocols were insistent on this limitation, having particular regard to the concern which has been expressed by your Lordships on other occasions. This will mean that the organisations and their employees will be subject to the jurisdiction of our courts in respect of proceedings, both civil and criminal, which arise out of motor offences and accidents. National representatives do not, it is true, come within the scope of this restriction; but they are most unlikely to bring their cars with them when they come here to attend conferences.

The second limitation is that the organisations will not have immunity from proceedings to enforce an arbitration order made against them. In the international agreements to which the Orders gave effect, the organisations are required to include an arbitration clause in all written contracts and may be required to submit to arbitration disputes arising out of non-contractual obligations or those in which they are otherwise involved, either directly or through the intermediary of any member of the staff whose immunity has not been waived. This is an important modification of the immunity from suit which the majority of international organisations enjoy. A third limitation is that the exemption of officials of an organisation from United Kingdom income tax is conditional on the existence of an internal tax system within the organisation. This means that the salaries of officials will always he subject to tax, but that when the organisations have their own tax system the benefit of the tax will go to the organisation and not to any one member State. Another novel feature of the Order is that the fiscal privileges of the organisations are expressly tied to their official activities, as illustrated under Articles 9 of the two Orders. Thus, under the present régime, such privileges cannot be extended to, for example, any commercial activities which ELDO may come to have when it moves beyond the present stage of developing a prototype space vehicle launcher.

The final and more general point is that in this Order, for the first time, the application of Part 4 of the Schedule to the 1950 Act, the Act under which the Orders are made, is entirely excluded. This means that the families of the officers of the organisations, the official staff of representatives and the official staff of experts will not enjoy privileges and immunities. It is, of course, perfectly right that we should always give very careful thought to any legislation which puts any individual person or any institution in a special legal position as compared with other persons and other institutions. But international organisations are created by and composed of, and carry out the will of, sovereign States whose position individually has always been special in the eyes of English law. The same is true of the representatives of sovereign States—namely, diplomats. As a major financial contributor to the organisations with which we are concerned to-day, and as wholehearted supporters of them at all stages of their creation, we have a particular concern to see that they function successfully and smoothly. Both are conducting collectively activities which Governments assume separately as a normal part of their Government functions. Our representatives at the negotiations of the Protocol to which the Orders give effect made a particular effort to introduce into them the new limiting features which I have indicated. Therefore I hope that your Lordships will feel that both these Orders not only fulfil our international obligations and support these two organisations with which we are closely connected and which we think have a valuable part to play, but, at the same time, do not extend unduly widely the circle of privileged people in this country. I beg to move.

Moved, That an humble Address be presented to Her Majesty praying that the European Space Research Organisation (Immunities and Privileges) Order 1965, be made in the form of the draft laid before this House on July 14.—(Lord Walston.)

2.55 p.m.

THE EARL OF BESSBOROUGH

My Lords, we are grateful to the noble Lord for having described the scope of these Orders, which we on this side of the House, of course, greatly welcome. Both these organisations are doing a most important job for the future—perhaps more important than many of your Lordships may realise. We are also glad of the fact that the Orders contain more restrictions than previous Orders of the same kind. Your Lordships will be glad to hear from the noble Lord that immunities are not given, for instance, for motor offences.

On the question of arbitration, it is laid down that the organisation, within its official duties, shall have immunity from suit and legal processes except in respect of an enforcement of an arbitration award made under Article 25 or 26 of the Protocol of the privileges and immunities of the organisation. This means that the organisation itself can be made to submit to arbitration on disputes arising out of contracts entered into. We also recognise the further limitation concerning the exemption of officials of the organisation from United Kingdom income tax, which is now made conditional on the existence of an internal tax system within the organisations themselves. And we are glad, too, that privileges cannot be extended to any commercial activities in which ELDO may come to engage when it gets past this period of its development.

There is one point on which I am still not very happy: it concerns Article 12 and the definitions of the staff categories referred to as "A", "B", "C" and "L". The noble Lord did not refer to it this afternoon, but the Minister of State in another place did not give, in my view, very adequate answers in regard to the kind of people included in these categories. Nor was it made clear exactly how many people would be involved. The Minister said that ELDO had 175 employees in these categories and ESRO some 500. We recognise that both these organisations have their headquarters in Paris; but it is not at all clear how many visitors from these organisations there may be to this country during a year. The noble Lord mentioned a figure similar to that given by the Minister of State in another place, as "a pure guess", of some 50 or 60 a year for short periods; and all these might come within the scope of the immunities referred to in the Orders.

The Select Committee in another place made certain criticisms which were based on the fact that these categories were not defined and also—and this is important—that they could be altered by the organisations concerned without reference to Parliament in this country. Paragraph 4 of the Foreign Secretary's reply to the Select Committee refers to this. Although the Orders were eventually approved in another place the answers given on these points were not completely satisfactory. It is true that your Lordships' own Special Orders Committee have not repeated this criticism—and I am not criticising them for that—but I think it should be mentioned in this House, and I should be grateful to the noble Lord if he could give us some further assurance on this point. It was not quite enough for the Minister elsewhere to say that he would look at this in the future and would write to the honourable gentleman giving a detailed answer: I should like to have that detailed answer before we approve the Orders.

Then I wonder how far the immunities and privileges of the kind defined in these Orders are likely to be extended. If they are to cover those concerned with space research and launcher development, and members of the six Committees concerned with these matters (and, of course, they may be extended to the officials and engineers, and others concerned) is there any reason why they should not also be extended to those concerned with international co-operative efforts in their technological fields—for example, the Anglo-French Concord project and those projects in which we are concerned with other countries in Europe, such as Germany? On both sides of the House we hope that such European co-operative projects will be increased. But should we then approve a further very considerable proliferation of diplomatic immunity in these cases, too? As noble Lords will know, there is considerable objection in this country to such widespread proliferation of immunities. We must be grateful that in these Orders the immunities granted are less than usual to diplomats, who are themselves numerous enough. As we know, similar Orders apply in the case of the Council of Europe, the Western European Union, the International Atomic Energy Agency, the International Development Association and the Customs Co-operation Council.

It is true that these two Orders are more restrictive than those concerned with other organisations but I am still not altogether happy about the number of people involved and the kind of people; and, in particular, the power of the Councils of either ESRO or ELDO to alter the categories without reference to Parliament. Will the immunity extend, for example, to all the engineers involved in the development and manufacture of the three stages of the rocket? Where exactly do we stop? I am very glad that, in another place, the Minister said that the Government have circulated twenty-four other Governments with a Memorandum suggesting that fresh thought should be given to the whole problem of privileges and immunities to such organisations and that the Committee on Legal Co-operation in the Council of Europe and the International Law Commission of the United Nations are going into this matter. I wonder whether it would not have been better to delay approval of these Orders until this fresh thought had been given to the problem.

I should be grateful to the noble Lord if he would say something further on the point. I trust that the Government will pursue their fresh look with diligence and give particular attention and special thought to Article 12 which still leaves the defining of staff categories outside the control of Parliament in the country. I think that is a serious mistake and I hope that the Minister will I look at this again.

3.2 p.m.

THE EARL OF SELKIRK

My Lords, I wish to support my noble friend. Many of us are getting very worried about the proliferation of these Orders. I remember being a member of a Consolidating Corn-mince in 1949 when I think that the phrase "international privilege" was first invented. Until then there had been nothing except diplomatic privilege. I do not think any of us had any idea of the extent to which this would be extended in due course. Can the noble Lord tell us how many organisations have privileges at this time, and how many people are concerned in those organisations? One must never forget that every privilege undermines to some degree the liberties and legal rights of other people. It may be only marginal, but it does so to some extent. I think that we should look at this matter extremely carefully.

The other day we all listened with great interest to the powerful speech made by the noble Lord, Lord Walston. What did the noble Lord say was the object of British policy? He said there were two things: liberty and the abolition of privilege. And here he is, two or three days later, solemnly coming to your Lordships' House and asking for an extension of privilege for people we do not know and whom I doubt whether the noble Lord knows. I think we ought to know just who are the people concerned.

May I say about the speech made to-day by the noble Lord that he never once told us the object of these privileges or why are they essential to the success of this work? All the noble Lord said was that the Foreign Office had agreed to some international Agreement. Surely we are entitled to know why the objects of both these organisations cannot properly be fulfilled unless people are given a measure of privilege in this country?

3.5 p.m.

THE EARL OF SWINTON

My Lords, I also wish to intervene to support what has been said by both my noble friends. I do so because, as noble Lords will remember, on several previous occasions when we have discussed the question of immunity I have protested against the very wide extensions which were proposed and have always been assured that "this is only a little one" or that it is the last. It seems to me, however, that this proposal strikes an entirely new line. I wonder whether we should approve this to-day. What is the difference—I should like the noble Lord to consider this rather carefully—between these two international or inter-allied conferences, standing conferences, and any other great international conference? Take, for example, the international conference on civil aviation, held in Chicago in 1944, when I had the honour to lead the British delegation. That conference was as comprehensive as it could be. Every country in the world was represented by Ministers or very high officials. The United States delegation was ministerial and diplomatic as well as including great Service chiefs. The same applied to the rest of the delegations, including those from the Commonwealth. But it never occurred to any of us, I think, that during those long international negotiations we ought to have diplomatic immunity.

Take another example, the international conference which I convened, with great results, a good many years before—the International Shipping Conference, at which every maritime country was represented and where the representation was of the most senior character. That Conference led to the Conventions, on safety, and so on, which have been the international law of the sea ever since. That Conference was held, I think, in 1926. What is the difference between conferences of that kind and this, which, as I understand it, is really an inter national study conference or group, and will, I suppose, consist of distinguished engineers? If we are to give diplomatic immunity to all the people engaged in that sort of work, it seems to me that whenever we have any sort of assembly, conference or consortium in which Governments are engaged, a claim for immunity will be made and, if we set this kind of precedent, will have to be given.

I do not want to make personal criticisms, and I am sure that all the people who will be engaged in these organisations will be pure and above reproach. But there are to-day a lot of very odd people in Governments. I am not including right honourable and honourable gentlemen and noble Lords opposite, but there are some very odd Governments and Government officials knocking about, people who get up to all sorts of queer tricks. If, merely because they are attending some international conference, those people are to have diplomatic immunity, we may find ourselves in extraordinary difficulties. I do not mean just that some fellow may come in and "bag" a nice hat from a hat shop: he may engage in more sinister activities. If these people have diplomatic immunity, we shall have a tremendous business in dealing with them. We should have to say that the person in question—it might be a second-class engineer—was persona non grata, and then go through the whole diplomatic business of getting rid of him. That would then invite a reprisal—because that seems to be the way these things are done, though for no justifiable reason; if somebody is got rid of from an Embassy staff, you retaliate in the same way. We do not want to have all that in this kind of consortium.

I would ask the Government—and the noble Lord, Lord Walston, is always so fair and reasonable in these matters—whether it is necessary for us to pass these Orders to-day. It is all right looking at them—and I am very glad the matter is going to be looked at; it ought to be looked at by us with our associates. But, once the Orders, which seem to me to strike new ground (or, to use a different metaphor, seem to undermine what little ground is left to us), have been confirmed, it is really too late. It is frightfully difficult to take butter out of a dog's mouth. If we were to come to the conclusion that we ought not to have done this, then it would be much harder to take these privileges away from these people. For these reasons I hope that these Orders may be looked at again.

THE DUKE OF ATHOLL

My Lords, I, too, should like to support all that my noble friends have said. I would also ask the noble Lord, Lord Walston, in rather more detail, whether I am right in thinking that, if these Orders are passed, the third-party liability of the people who are affected by them will be limited to motor car offences. This seems to me to raise completely new problems, and to be very unfair; because, so far as I can make out, if I am run over by one of these gentlemen and have my foot broken, I am able to sue him for damages, whereas if he drops his suitcase on my toe, I shall not be able, unless he agrees to waive his immunity under these Orders, to recover one penny from him, although the damage I sustain may be exactly the same and it may be that he was equally to blame in both cases. I should like to ask the noble Lord, Lord Walston, whether this view is correct. At the same time, I support the thesis that these people should be liable for third-party damages, although I cannot see why this is limited to motor car offences.

LORD CHORLEY

My Lords, could my noble friend give us the date of the Convention which brings this into force?

LORD HAWKE

My Lords, I, too, have frequently protested in the past about some of these Orders. One of the reasons that have been wont to be given to justify them has been that we are dealing with international organisations, and that in some parts of the world their ideas of justice, and so on, are rather more primitive than in our own. But here we are dealing with a European organisation of sophisticated countries, where the citizen is able to get justice if he goes to the courts. Surely in this case, in particular, it is quite unnecessary to give these people any immunity.

3.14 p.m.

LORD WALSTON

My Lords, your Lordships have given me many questions to answer, and, while I am grateful to the noble Earl, Lord Bessborough, for his welcome of this Order, I must confess that I am a little disappointed at the reception it has received, in view of the very great advances which have been made to meet the express wishes on other occasions of your Lordships in fulfilling our international obligations to these various organisations. After all, it must be remembered that these Orders which are placed before your Lordships to-day have departed a very long way from previous Orders, and do in fact give far fewer privileges than have been given in the past. I know that, in these matters, one should not expect gratitude, but I had rather hoped to hear a little more thanks for the modifications which have been incorporated in these Orders, rather than criticisms for those other elements which remain.

Let me try to deal, first of all, with the noble Duke's point about his toe and his suitcase.

THE DUKE OF ATHOLL

Not my suitcase.

LORD WALSTON

I sincerely hope that no suitcase will be dropped on his foot, and, indeed, that no motor car will run over his toe; but I would point out that the dropper of the suitcase will be exempt from a civil suit only if he drops his suitcase in the course of his official duties. Now I suppose it is possible for that to happen, but I think the noble Duke will agree that this is an unlikely event, and that it would perhaps be unreasonable to legislate for every conceivable possibility. The exception of motor car offences, which was hard fought for, was brought in because that is by far and away the most common case and the one which affects most people. So I hope the noble Duke will not press the point of the suitcase, or any other matters of that kind.

The noble Earl, Lord Selkirk, I must say, struck very close to the bone when he talked of freedom and the abolition of privilege. It is perfectly true that those are things for which we wish to strive; and, on the face of it, it is perfectly true that this Order looks as if it is going in the opposite direction. However, I would suggest to the noble Earl that we are in fact bound by international obligations in all these matters concerning international organisations, and that although it does not abolish privilege and lead to complete equality, this Order at least makes the privilege which these new organisations are to enjoy rather more egalitarian and rather less privileged than previous Orders have allowed to other people and other international organisations. Therefore, although our progress, as is often the case, is slow, I hope the noble Earl will agree with me that it is a progress in the right direction.

The noble Earl, Lord Swinton (I am bad at reading my own notes, I am afraid), said, I think, "We are told so often that this is only a little one, but the last." I do not for a moment suggest to your Lordships that this is the last occasion on which I or anybody else will come before your Lordships asking approval for an Order of this sort. We hope that there will not be many of them, but, undoubtedly, as international co-operation increases—and we all wish for that—there will be more international organisations, and therefore more organisations of this sort which are entitled to some form of privilege.

LORD HAWKE

May I ask the noble Lord one question? I am very puzzled as to precisely how this international obligation arises in the first place. Perhaps, at this point in his discourse, it would be convenient for him to tell us.

LORD WALSTON

I hope I will be able to find the exact justification for this, but it is an international obligation by which Her Majesty's Government, as a signatory of a Convention in the past, are bound. I hope that I shall be able to give the exact reference to that—

THE EARL OF BESSBOROUGH

Perhaps I can help the noble Lord. It is the Diplomatic Privileges Act, 1964, and the Protocol of the European Launcher Development Organisation.

LORD WALSTON

I am most grateful to the noble Earl. There was an earlier one, including the Act of 1950, which is also relevant. But it does stem from one or other of these earlier commitments into which we have entered. At this stage I should also like to point out a fact which I think perhaps several noble Lords have missed—I blame myself for not having made it clear. In general, these privileges are very severely restricted. The full diplomatic privileges of the sort to which the noble Earl, Lord Swinton, was referring are available under these two Orders only to the heads of the organisations. The other members of the organisations enjoy privileges 'only in so far as they are fulfilling their official duties; but, in so far as they are behaving as private individuals, they enjoy no immunities whatsoever.

LORD DERWENT

My Lords, I am sorry to interrupt the noble Lord once more, but does the head of the organisation have to claim the diplomatic privilege, as in an Embassy, for example, or is it done by the individual himself?

LORD WALSTON

My Lords, it is accorded to him, and it is something which he enjoys, without having to make any specific claim for it, when he comes to this country, which is very rarely—indeed, so far as I know, he has never been in this country.

The noble Earl brought up the question of the Concord and asked whether that also should not be included. That is entirely different. It is a matter of co-operation between two firms, and there is no Governmental or international organisation which is concerned. So there is no more reason for them to have privileges than there is where any other two firms in different countries collaborate.

THE EARL OF BESSBOROUGH

My Lords, may I say that the Anglo-French Concord may be just as important as the launcher development and the Blue Streak in its three stages?

LORD WALSTON

My Lords, it may be just as important, and if the noble Earl would like to extend privileges to them, he is at liberty to take whatever action is necessary to encourage us to do so. But there is a legal difference between them. As regards the number of people concerned, the figure of approximately 50 visitors a year was mentioned in another place, and I mentioned that figure earlier. I was asked for something rather more specific. I am afraid that I cannot give the noble Earl anything more specific than that, because I have no idea how many visits of staff there will be, either for consultation or for technical work that is going on. For example one place in the North Country is being visited now. Our best guess is that there will be approximately 50 people coming here during the course of a year. But I should not like to be held closely to that figure, because it is impossible to lay down any hard-and-fast figures.

The actual categories of staff referred to in Article 12 are described as Category A, staff engaged in administrative and professional work; Category B, executive technical and clerical staff; Category C, staff in minor technical or service grades and Category L, translators and interpreters. These are the categories which were established in 1957 by agreement between the Council of Europe, NATO, O.E.E.C. and Western European Union, in order to standardise grading structures and salary scales. At the same time, a standing Co-ordination Committee was established by the four organisations, to which ESRO and ELDO now also appoint members. Any proposed changes in category would be considered by this Committee and would be a matter for approval by the organisations concerned. So it is not a specific category simply for these two organisations, but a general one which embraces the main international organisations.

The noble Earl asked a more far-reaching question concerning Article 12 and both these Orders. At the risk of wearying your Lordships, as this is a very important and somewhat technical question, I think it might be worth explaining why the provisions were drafted in precisely this present form. Section 1 of the International Organisation (Immunities and Privileges) Act, 1950, which is the parent Act, and the one I had in mind when answering the noble question of the noble Lord, Lord Hawke, lays down that any Order in Council made under it shall be so framed as not to confer any immunities and privileges to a greater extent than is required by international Agreement. Each of the Agreements to which the present draft Orders are intended to give effect provides that the privileges defined in Article 12 of the Order shall be conferred on categories of staff members which the Council shall decide—A, B, C and L in this case. Subsequent to the conclusion of the Agreement, the Council of each organisation has made a decision defining the categories concerned. Therefore, the Orders as they are now drafted do no more and no less than give effect to the requirements of the Agreements as im plemented by the decisions of the two Councils. A provision in comparable terms referring to all officers of grades 1 to 10 inclusive was included in the Central Treaty Organisation (Immunities and Privileges) Order of 1962. Therefore, the present provisions are not without precedent.

I hope that what I have said sufficiently answers the noble Earl's question for him to be satisfied, or at least to know not only that there are precedents, but also the Act under which we are operating and the other organisations which have been dealt with in a similar way. I accept the fact that the position is vague to the extent that some bodies over which Parliament have no control may, by their own autonomous action, alter these categories. That is a point which in the past has not been raised, so far as I know, other than when it was raised in another place fairly recently. The advice of the Law Officers of the Crown is being sought on this point, and if they consider it necessary, suitable Standing Orders can be presented for consideration by your Lordships' House. Therefore this matter can be remedied, if it is thought necessary to do so.

I was asked how many organisations enjoy privileges of some kind or another. The answer is that there are 29 of them. I will not weary your Lordships by reading out the whole list. Six have headquarters in this country; three have branches in this country, and the others are only casual visitors.

I am glad to see that there has been so much interest and such informed interest in this highly complex matter. I hope your Lordships will not follow the tentative suggestion made by the noble Earl, Lord Swinton, and refuse to accept these Orders to-day. I very much hope that your Lordships have been convinced, first, that these organisations are worthwhile, are the sort of thing we wish to support, and do a useful job; secondly, that these Orders are consistent with the normal obligations which I trust we have always accepted, and which I hope we shall continue to accept; thirdly, that the number of people involved is very small, indeed, and fourthly, and perhaps most important, that on this occasion, for the first time, I am asking your Lordships to agree to Orders which show a considerable curtailment of privileges over those which have been granted by this House in the past.

THE EARL OF SWINTON

My Lords, may I assure the noble Lord that, after the explanation he has given, I shall not ask the House to divide on this Order. I would only add that I was greatly interested because the number was 29. Does the noble Lord recall a certain quotation: There is a great text in Galatians, Once you trip on it entails Twenty-nine distinct damnations; One sure, if another fails.

On Question, Motion agreed to: the said Address to be presented to Her Majesty by the Lords with White Staves.