European Union and European Atomic Energy Community (Immunities and Privileges) Order 2021

Considered in Grand Committee

Moved by

That the Grand Committee do consider the European Union and European Atomic Energy Community (Immunities and Privileges) Order 2021.

My Lords, this draft order was laid on 17 May 2021. It confers immunity and privileges on the European Union delegation to the United Kingdom and the European Atomic Energy Community. This order is required to implement the agreement that we have reached with the European Union, which is broadly in line with global practice, but includes important provisions to ensure that immunities and privileges do not impede the proper administration of justice.

Before I go into more detail, I will provide some context. On 31 January 2020, the United Kingdom left the European Union. Accordingly, the EU opened a delegation to the UK to replace the European Commission representation. This delegation represents the interests of the EU and co-ordinates among the member states. This Government are clear that we want a relationship with the European Union based on friendly co-operation. The delegation plays an important role in that regard, including in the implementation of the trade and co-operation agreement.

I turn to the details of the draft order. The order is necessary for the EU delegation to function effectively. It confers legal capacity and immunities and privileges on the EU delegation, its head and, indeed, staff. It is customary to grant immunities and privileges to diplomatic missions and international organisations to enable them to function. This order does so in respect of the EU delegation in terms broadly similar to those offered by other Governments to the EU delegations globally, but it also includes important provisions to ensure that immunities and privileges do not impede the proper administration of justice.

The order categorises staff at the EU delegation as either diplomatic agents or staff members, and contains provisions in respect of their family members. Staff notified to the Foreign, Commonwealth and Development Office as diplomatic agents would be immune from civil, criminal and administrative jurisdiction, including any measure of enforcement. They would also have inviolability of their residence, baggage, official papers and documents. They would have inviolability of the person only in respect of their official acts. There would be no immunity or inviolability in respect of road traffic accidents or offences, irrespective of circumstance, for any diplomatic agent.

For staff members, the order accords immunity from the criminal, civil and administrative jurisdiction of the UK only in respect of their official roles. Staff members also receive inviolability of their official papers and documents and inviolability of the person only in respect of their official acts. Again, there is a complete carve-out from this immunity and inviolability for any alleged road traffic accidents and offences. Certain fiscal exemptions are also provided for the delegation in the exercise of its function and for staff. These include exemptions from direct taxes on assets, property, income and the delegation’s operations, and an exemption from council tax. Further, the order sets out provisions by which the UK may request that these immunities and privileges be waived.

My Lords, I am most grateful to the Minister for his exposition of this order and his customary clarity; I thank him for that. I have read the order through and I am satisfied that it fulfils the purposes for which it will be made. In particular, I endorse what the Minister said about the importance of good relations with diplomatic staff throughout Europe, and I hope that that will be the case.

My own experience of diplomatic immunity goes back many years. I recall claiming diplomatic immunity on behalf of a gentleman who produced magnificent letters, which were supposed to be for Her Majesty’s Government, seeking immunity. Our problem was twofold: first, he was not accredited to the Court of St James and, secondly, the president of the state—which will be nameless—had suffered a coup, and the last we knew of him was that he was a taxi driver in New York, and was unable to give evidence. That was my experience at the time, and I would be interested to know whether ambassadors are still accredited to the Court of St James—I do hope so.

To be rather more serious, of course we are all very concerned about the case of Harry Dunn, and the Minister has pointed out that there is a carve-out in this order for road traffic offences. Does this include causing death by dangerous driving? That is the very important issue in the Harry Dunn case. The person who knocked him down, Anne Sacoolas, claimed diplomatic immunity and departed this country, but her claim has since been questioned. That gives rise to a further question, which perhaps the Minister can answer: how does a diplomat satisfactorily establish that he can claim diplomatic immunity when that is the case? It seems that Anne Sacoolas got away with it.

I too appreciate the Minister’s introduction of this instrument, which is relatively self-explanatory. Like him, I believe that, outside the EU, we all want to use the opportunities this provides to make Britain a successful nation. But to do so, we will need to foster strong ties with our closest allies in Europe, and I hope that this instrument can play a small part in that endeavour.

As the Minister said, the legislation before the Committee will give immunity to certain representatives and staff from the EU and EAEC in the UK, following the recent agreement. Although this is welcome, the Government’s approach to this issue in recent months has been unnecessarily reckless. The Committee will recall the reports, back in January, that the Government would not grant full diplomatic status to the EU. In fact, we had a substantial debate in this Committee in February when we dealt with the Bank for International Settlements SI—again giving immunities. It is rather shameful that this Government took so long to ensure that our relationships with the EU were put on a proper and formal footing.

In February, of course, we addressed some of the technical issues of immunity, not least the road traffic offences issue referred to by the noble Lord, Lord Thomas of Gresford. I welcome some of the explanations given then, but there is an important point to consider in relation to the issue raised by the noble Lord, which is exactly how somebody claims diplomatic immunity and the process to ensure that such a case could not possibly happen again.

There are a couple of other technical issues on this. First, the Minister said that the instrument was laid on 17 May, and the commencement clause says that it

“comes into force on the day after … it is made, or the day on which the Agreement enters into force … whichever is the later.”

I assume that the agreement is in force and therefore that the powers in the statutory instrument will commence, but I hope the Minister can clarify the precise date on which these immunities will be brought in.

My Lords, I thank the noble Lords, Lord Thomas and Lord Collins, for their support for this order. In doing so, I recognise the clear interest in your Lordships’ House in the status of those who are to represent the EU at the Court of St James—I can assure the noble Lord, Lord Thomas, that that is very much the case.

To further qualify the comment I have just made and to further reassure both noble Lords, I note that the establishment agreement sets out that the EU head of delegation will be treated in a manner like any head of mission to the Court of St James. This will include the designation as ambassador. An agrément process will be undertaken and is very much under way, and we are working through the formal presentation of the credentials to Her Majesty the Queen. I hope that the noble Lord, Lord Thomas, in particular—who I know gives very strict scrutiny to the letter of the law—is reassured in that respect.

Both noble Lords raised the immunities and inviolability not being extended to all circumstances. They will be mindful that I will not wish to extend my comments too far because of the nature of and sensitivity around the Harry Dunn case, but I assure them both that, as I said in introducing the order, the UK firmly expects those enjoying immunities and privileges here to comply with UK laws and regulations. However, should a staff member, or, indeed, a family member, commit a serious offence or a series of minor offences, the UK may request the EU to waive immunity.

Specifically on inviolability not been given in all circumstances, that is also to ensure that there is no repeat of the tragic Harry Dunn case, where we have restricted the application of inviolability solely to the exercise of staff members’ official duties. I hope that that clarifies that element.

On the order becoming operational, I assure the noble Lord, Lord Collins, who asked a specific question about Scotland, that the Scottish Government intend to lay the Scottish order in August, with the expectation that this will then be sent to the October Privy Council. We have notified the European Union of this timetable as well.

Motion agreed.

The Grand Committee stands adjourned until 2.55 pm. I remind Members to sanitise their desks and chairs before leaving the Room.

Sitting suspended.