Justice Committee, 20 Jan 2009

Meeting date: Tuesday, January 20, 2009

Official Report 245KB pdf

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Subordinate Legislation

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International Organisations (Immunities and Privileges) (Scotland) Order 2009 (Draft)

The draft International Organisations (Immunities and Privileges) (Scotland) Order 2009 is an affirmative instrument. I draw members' attention to the order and to the cover note.

Prior to the formal procedure in respect of the motion on the order at item 4, members have an opportunity now to ask questions of the cabinet secretary and officials. The cabinet secretary remains in situ, as does Mr Peddie, and they are joined by Paul Johnston, of the constitutional and civil law division of the Scottish Government legal directorate.

I appreciate that a lot of this emanates from Westminster and that the international obligations have to be followed through, but I was struck by a number of differences between the immunities given to different officials. In particular, I was struck by the fact that some officials have immunity from criminal arrest, some have specific immunity from prosecution for road traffic offences and some do not. I know that that has been an issue in London and it may well have been an issue in Scotland. In almost all cases, if I have understood the papers properly, persons who are British citizens are not given those immunities. That creates the odd situation that if, for the sake of argument, a European Court of Human Rights judge happens to be British, he would not have immunity from criminal arrest for such offences when he carries out his duties in the UK, whereas other European Court of Human Rights judges would. That seems odd. What is the rationale for those distinctions?

The other issue relates to spouses, who are sometimes excluded and sometimes not. There does not seem to be an obvious principle that runs through these immunities and privileges.

The driver—if not an obvious principle, because in some cases one could certainly query whether there is one—is clearly that the UK has to meet its obligations to these international organisations. The organisations of which the UK is a member vary, so the nature and scope of the immunities and privileges, which are set out in the schedules to the draft order, also vary; it depends on the convention or agreement covering them, but in essence the order is referring to what is described as diplomatic immunity. To some extent, meeting those obligations is a condition of membership of the organisations. The overarching reason for the order is to help the UK to fulfil its international obligations. If it did not meet its obligations, it would be in breach of the agreements. I understand that in London issues have been raised about parking tickets but, unfortunately, that is the nature of the agreements that have been signed up to. They are bilateral and whatever else.

We are happy to allow the order to go forward on the basis that it is about the UK, and Scotland as a part of the UK, seeking to meet these obligations. I appreciate that some of the immunities and privileges may raise eyebrows but, to some extent, they are not up for negotiation. If you want to join the club, these are the rules and regulations. There may be some perversities in them, but if the UK wants to be a member of such organisations—and, given the nature of the organisations, we do—we unfortunately have to put up with the rules, although we may sometimes wonder whether some of them are being abused.

I entirely accept that, but will you comment on the reason for the exclusion of British citizens from the immunities? In the example that I gave, the purpose of the immunities is to prevent European Court of Human Rights judges from being harassed as they go about their business, but one would have thought that that should apply to a judge who is a British citizen as well.

I think that the logic is that UK citizens are resident here and are therefore subject to the laws of the UK and the legal jurisdictions within it. We are looking to establish reciprocity so that, when UK citizens are in other countries, they have obligations and indeed rights. There is a dichotomy, but the reason is that a UK citizen is covered by the law of the land. The purpose of the draft order is to ensure that, as a state, we meet the obligations that we are required to meet to citizens of other countries who come here. UK citizens are offered the rights if they go to Paris or Berlin and, equally, citizens of France or Germany are offered them when they come here. That is the reason. It is about the UK citizen's rights elsewhere as opposed to their rights here.

I will add to that point with a comment about the differences between the various organisations. In relation to some, there are only brief references to what the privileges ought to be, but in relation to others there are more detailed provisions. As an example, CERN, which is the European Organization for Nuclear Research, has a 27-article protocol on privileges and immunities, and one of the articles states:

"No State party to this Protocol shall be obliged to accord the privileges and immunities set out in this Article to its own nationals".

That sort of provision is built in. It seems to be an underlying principle in these matters.

I have a final, technical point. The final page of the Executive note on the draft order states:

"the existing orders will not be expressly revoked and replaced but will remain in force."

However, it rather suggested somewhere earlier on that some of the things were being revoked. What is the position on that? Why are certain things not being revoked if they are being replaced by the new provisions that we are asked to approve?

The order revokes any provisions that are now unnecessary given the new provisions in the draft order, but quite a lot of orders have been made by the UK Parliament over the years since devolution that deal only with reserved matters, and they will all remain in force to the extent that they continue to deal with reserved matters.

Is that why the word "expressly" is used?

Yes.

As there are no further questions, we move on to item 4, which is formal consideration of the motion to approve the draft order.

Motion moved,

That the Justice Committee recommends that the draft International Organisations (Immunities and Privileges) (Scotland) Order 2009 be approved.—[Kenny MacAskill.]

Are there any further comments from members?

No.

Cabinet secretary, do you feel the need to wind up?

I will dispense with that privilege.

Motion agreed to.

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Assistance by Way of Representation (District Court Financial Limit) (Scotland) Order 2008 (SSI 2008/416)<br />Legal Profession and Legal Aid (Scotland) Act 2007 (Handling Complaints and Specification of Interest Rates) Order 2008 (SSI 2008/428)

There are two statutory instruments to be considered under the negative procedure. The Subordinate Legislation Committee raised no points on the orders. Do members have any questions?

No.

Are members content to note the orders?

Members indicated agreement.

I thank members for their attendance.

Meeting closed at 12:44.