CONSULAR RELATIONS (PRIVILEGES AND IMMUNITIES) (POLISH PEOPLE'S REPUBLIC) ORDER 1978 (Hansard, 16 June 1978)

§ Baroness ELLES

On behalf of my noble friends and, I am sure, all Members of your Lordships' House, we are grateful to the noble Lord, Lord Goronwy-Roberts, for having explained the purposes of the order before us so clearly and so helpfully. Indeed, I knew that we would get a very helpful explanation when I saw that the Protocol which is put into effect by this order was signed by the noble Lord himself, so this was already a good augury.

However, I regret to disappoint him in that I have certain questions to ask him arising out of having a look at what appears to be a relatively simple order and out of what he has now told the House. I have communicated to him two or three of the questions I am going to ask him and possibly there may be one or two more, in which case I should be grateful for a written reply later if it is not convenient to answer now.

One of the questions which concerns me at the moment is the definition of members of families. I could find no definition in the Diplomatic Privileges Act of 1964, nor in the Vienna Conventions on diplomatic or consular relations. As we all know, members of families can be "extended" or "nuclear", as I think the modern term is, and it may be that considerable numbers of people will, in fact, be getting privileges which were neither intended or imagined when this draft order was made. I wonder whether at some time the Foreign and Commonwealth Office would look at this question of the definition of members of families. It may be that it is acceptable to all countries to use this as a term of art, but it can be abused and I think it is for our Foreign Office to look into this and see that it is not abused, particularly, of course, where there is more than one residential premise.

For instance, in the case of the Polish Consulates—and I am not saying that this necessarily relates only to Poland—they now have a consulate in London and also, as the noble Lord has informed the House, in Glasgow and although, as he said, only 13 consular officials and six 761 members of their staff are affected, one can multiply that several times when the members of the families of all those people are included: it could come up to, say, 50. I do not know, but it could be quite a considerable number of people who will benefit from certain exemptions from Customs' duties which the order extends not only to a first-time installation but also so that every time they come into the country they will get the benefits of these privileges and exemptions and the various other exemptions which are set out in this order. For instance, immunity from jurisdiction is quite convenient when one consistently parks one's car in the wrong place and gets a ticket but does not have to pay the fine.

These privileges and immunities are extended to members of the families, not only, of course, of consular officers but also to the members of the families of consular employees; in fact, some of these privileges also extend to members of the service staff of a consular post. All these figures added together can make quite a considerable number and if these exemptions and privileges are now to be extended to this category of person attached to different consulates throughout the country, this would be quite a consideration. I should like the Foreign Office, through the Minister, to look at this question of the definition of members of families. I ask the noble Lord to confirm that the exemption from taxation under paragraph 4 applies only to wages and similar emoluments of members of the service staff. It is not, of course, a general exemption from all taxation payable by citizens and residents in the United Kingdom.

There is one other question that I should like to raise with the noble Lord. It is the question, to which he has rightly drawn our attention, which refers to Article XI in the Protocol: the question of the protection or a national abroad who has been arrested or detained by the receiving State of the consul. As he rightly says, a certain degree of protection has been introduced into Article XI which means that after the maximum of three days the consul must have the right to see the detained or arrested British national. This is valuable and we are glad to see that it is contained in this Protocol and will now come into effect. This is very valuable, 762 particularly in certain parts of the world where our citizens may be arrested on trumped-up charges or are in difficult situations and have not always had easy access to their consul.

This, I was always told at the United Nations, was customary international law. But customary international law, of course, is not always observed by all countries, and therefore I am very glad to see that this has now been contained in an international instrument. I am, however, a little worried about paragraph 4(b), which comes under Article XI. As the noble Lord rightly said, the basis of these documents is that they are reciprocal, and equal treatment is accorded to British nationals in Poland. as to Polish nationals in this country. I would draw his attention to the final sentence of paragraph 4 (b): The consular officer shall be entitled to be present during the trial in the receiving State of a national of the sending State in so far as the laws and regulations of the receiving State permit". We in this country have a very high standard of justice, and the courts are always open, unless it is a matter of the Official Secrets Acts. But the noble Lord will agree with me that this is not always the case in other countries. Of course, it is not for me to comment on the laws and regulations of Poland. That is not what we are discussing at the moment. But I very much hope that the noble Lord will look into this matter and see that this kind of restriction and limitation on the right of a consular officer is not contained in future documents, because this can have a very serious effect on the rights of a national to have a fair hearing, wherever he may be arrested.

In connection with that, I should also like to see in future documents of this kind the right of interpretation for the national during his trial, because that is not included in this and this must be something that a consular official must be entitled to request for a British national wherever he is arrested and then tried in a foreign court. We provide that service in this country for nationals of any country, and we should demand the reciprocal right for our nationals in other countries.

I should also like to see in documents of this kind in the future that, while legal aid is available to the nationals of the receiving State, it is also accorded to the 763 British national. Here again, if it is to be on a basis of reciprocity, this is something that we accord to all individuals, regardless of nationality. If we are going to accord that right to foreign nationals in this country, we should be a little more tough and demand this right for our own nationals when they are abroad. This particular aspect concerns me individually because, as the noble Lord will know, I am concerned with the rights of aliens and I have been looking particularly at their rights to access in foreign courts and to equal treatment with nationals. So if reciprocity is to be given, we should demand these rights.

I think that Poland is one of the countries that have ratified the UN International Convention on Civil and Political Rights. That, of course, states that individuals shall have a fair hearing. So this is something that should be insisted on in this kind of document in the future. There are the major points that I wish to make and I would recommend—from these Benches, at any rate—that noble Lords accept this order. I express once more my gratitude to the noble Lord, Lord Goronwy-Roberts.

§ Lord GORONWY-ROBERTS

My Lords, I am most grateful to the noble Baroness for the contribution she has made, as always, raising important points of clarification. She raised first the question of the definition of, to quote the Vienna Convention and other documents relating to these situations, member of his family forming part of his household". As she knows, this is an expression used repeatedly in the Vienna Conventions on Diplomatic and Consular Relations, but it has, I agree, proved impossible so far—indeed, it proved impossible at two conferences which drew up these conventions —to agree on a general definition of this term. It is therefore for each State to apply its own definition.

The United Kingdom administrative practice is to accept the expression as including a spouse and minor child. In exceptional circumstances other relatives would, as it were, take the place of the spouse—for instance, where a sister keeps house for a consular official who is unmarried. I agree that it is the best that the 764 international community as a whole has been able to do; but it does need looking at. We are looking at this from time to time and comparing our ideas with those of other countries. I cannot say that a solution of this difficulty has so far been available. On the whole, this has worked. The definition is a fairly restricted one and there is the built-in reciprocity of sanctions, as it were, if one country, vis-à-vis another, interprets this admittedly inadequate phrase so as to create an imbalance of administrative action.

The noble Baroness also raised important points, which I take very much to mind, relating to interpretation—the interpretation, for instance, of Article XI and a number of other articles as to reciprocity. I think the balance is there, but we will look at them and test them against what the noble Baroness has said. For instance, she raised the question of the improved access for consular officials to people in detention, and quite rightly quoted the improved provisions: three days within which the receiving State must inform our consular officials that a detention has been effected, and four days within which the first visit must be made. If I may say so, she summarised that rather long and important article extremely well.

The noble Baroness drew our attention, of course, to the question of interpretation. Like her, I do not see a direct reference to the right to interpretation in the Protocol as it stands. Practice almost invariably in these cases—even, shall we say, in the most unaccommodating of States, and Poland is by no means the most unaccommodating in regard to this country—has been in trials to allow interpretation. She will have seen that there is full provision for the use of the language of preference—I am truncating the terms—in conversations and communications. I do not for a minute think that there would be difficulty about interpretation in a Polish court; but offhand I do not see a direct reference, and I am grateful to the noble Baroness for drawing my attention to that. I will look into that as well.

I do not think there was any other specific point that she raised. If I have missed one, I am sure that the noble Baroness, of all people, will remind me that I am not discharging my duties comprehensively. I am most grateful.