Meeting of the Parliament

Meeting date: Wednesday, April 26, 2017

Official Report 889KB pdf

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Parliamentary Bureau Motion

The next item of business is consideration of a Parliamentary Bureau motion. I ask Joe FitzPatrick to move motion S5M-05333, on the approval of a Scottish statutory instrument.

Motion moved,

That the Parliament agrees that the International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2017 [draft] be approved.—[Joe FitzPatrick.]

16:57  

In the previous parliamentary session, I challenged the International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2015, in respect of the Asian Infrastructure Investment Bank. The draft order that we are considering today amends certain legal immunities and privileges in connection with the European Organisation for Astronomical Research in the Southern Hemisphere—or ESO for short. It is an international project and its Edinburgh base has 20 full-time equivalent posts, with work split between 40 to 50 individual staff members.

The Justice Committee was told that

“To enable the organisation to fulfil its purposes and carry out its functions, privileges and immunities apply by virtue of a practical protocol to the convention that was signed in 1974.”—[Official Report, Justice Committee, 18 April 2017; c 1-2.]

There is agreement that this is a complex area of law. Articles 7 to 19 of the protocol require member states to grant a number of privileges and immunities to the organisation, its officers and staff. The majority of those relate to reserved matters and are dealt with in the parallel United Kingdom order.

The draft order’s purpose is to correct an error that was inadvertently made to the principal order, which came to light because the ESO pointed out that some of its staff were not receiving the reserved tax exemptions to which they are entitled. When officials reviewed the Scottish order last autumn, they discovered a different mistake that was unrelated to taxation, which was that in one instance too many immunities and privileges were being granted.

I raised various points with the minister when she brought the draft order to the Justice Committee, and I am grateful for her replies—not least when she said that this is a “complex area” of law. It is known that the ESO’s staff are exempt from UK income tax, and I await the minister’s letter on the full list of tax exemptions.

With regard to criminal immunity, I asked the minister what might apply and she suggested that

“assault and other crimes of that type”

would not be covered, but that

“white-collar crime might fall within the scope of the immunities and privileges.”

There is also the issue of inviolability of residence.

There has been no consultation on the order and no impact assessment. There is no information on the total number of persons in Scotland who are covered by it. The information from the Scottish Government is:

“We understand that the discrepancies in the Scottish order have given rise to no practical issues”.—[Official Report, Justice Committee, 18 April 2017; c 5, 2-3.]

I do not know how that statement could be made. I understand that this is about long-standing conventions, but my view and my party’s view is that such conventions must be constantly evaluated. I consider that it is fundamentally wrong for any Government minister to come to a Justice Committee meeting extolling the virtues of any person being immune from the criminal or civil law and exempt from taxation, and their residence or premises being inviolate.

The last time that I spoke about the matter was in relation to the 2015 order, when I said:

“It is clear that the approach is intended to be business as usual, but that is not the new politics that I understood the Scottish Parliament to want to deliver.”—[Official Report, 25 November 2015; c 74.]

I encourage all members to vote for a system in which everyone in Scotland adheres to the law of the land and pays the taxes due by opposing the order.

Thank you, Mr Finnie. I call Annabelle Ewing to respond.

17:01  

The draft International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2017 amends various legal immunities and privileges in connection with the European Organisation for Astronomical Research in the Southern Hemisphere, otherwise known as the European Southern Observatory or ESO.

The ESO is developing a giant telescope which is in an advanced stage of design by astronomers and industry across Europe, led by the ESO. To enable the organisation to fulfil its purposes and carry out its functions, certain privileges and immunities apply by virtue of a protocol to the convention that was signed in 1974. The conferral of immunities and privileges on officers of the organisation is in effect a condition of membership. As part of the UK’s membership of the ESO, the agreement has to be effective throughout the UK. That includes the privileges and immunities, some of which relate to devolved matters in Scotland.

There are indeed, as Mr Finnie referred to, 20 full-time equivalent posts at the Royal Observatory in Edinburgh—in fact, in total there are around 40 to 50 staff who potentially may be entitled to privileges and immunities because of their work for the ESO.

I know that John Finnie has concerns about the privileges and immunities in relation to civil and criminal law that are accorded to international organisations generally as far as their operations in Scotland are concerned, and I will be answering a written question from him on that subject. However, I fear that he may have slightly misunderstood the legal position of officials who are engaged in work for international organisations in Scotland.

Such officials will usually be entitled to immunity from legal action, whether criminal or civil, but such immunities apply only when the relevant officials are engaged in their functions for the international organisation—and that within the limits of their authority. For example, those officials will be exempt from direct taxes but only in respect of the work that they do for the international organisation.

Will the minister give way?

I am afraid that I have only a few seconds left.

There is, however, an exception to that position in the case of motor traffic offences committed by such officials or of damage caused by motor vehicles belonging to or driven by them.

If such privileges and immunities were not extended to officials of international organisations in Scotland, all that would happen would be that such organisations would not carry out any work in Scotland, to the detriment of the Scottish economy and the general standing of Scotland in the international community.

There is also the fact that the privileges and immunities are reciprocal, so Scottish and other UK officials working for international organisations abroad will be entitled to equivalent benefits.

To the extent that the privileges and immunities relate to devolved matters in Scotland, conferral of those rights falls to the Scottish Parliament and it is therefore right that this Parliament should follow the Justice Committee’s recommendation and approve the order.

The question on the order will be put at decision time.