Conference of the Parties to the United Nations Framework Convention on Climate Change (Immunities and Privileges) (Scotland) Order 2021 [Draft]
European Union and European Atomic Energy Community (Immunities and Privileges) (Scotland) Order 2021 [Draft]
Our next item is consideration of two affirmative instruments. I welcome to the meeting Ash Denham, the Minister for Community Safety, and from the Scottish Government legal directorate Susan Black, senior policy officer, civil law and legal system division, and Jo-anne Tinto, solicitor, constitutional and civil law division.
I refer members to paper 1 and invite the minister to speak to the draft Conference of the Parties to the United Nations Framework Convention on Climate Change (Immunities and Privileges) (Scotland) Order 2021.
The draft order confers various legal immunities and privileges on the conference of the parties to the United Nations Framework Convention on Climate Change—COP26—and specified participants.
COP26 is considered to be the most significant climate change event since the 2015 Paris agreement. It is the biggest summit that the United Kingdom has ever hosted and it is a huge honour to welcome the conference to Scotland.
To enable COP26 to fulfil its purpose and take place successfully, it has been agreed that certain privileges and immunities require to be granted to certain attendees. A host country agreement, negotiated between the UK Government and the UNFCCC secretariat, regulates the privileges and immunities that are to be afforded to certain COP26 attendees—for example, certain tax exemptions and immunity from legal process. The agreement obliges the UK to abide by the terms of the protocol on privileges and immunities.
The draft order gives effect to those agreed obligations in so far as they relate to devolved matters in Scotland. Equivalent provision in respect of host country agreement obligations for reserved matters and devolved matters in the rest of the UK is being made by order in council at Westminster. However, to the extent that the privileges and immunities relate to devolved matters, the issue rightly falls to the Scottish Parliament. Subject to parliamentary consideration in this Parliament and at Westminster, both orders in council will be signed.
To assist the committee, I will say a little about the nature of the privileges and immunities. The draft order provides that the representatives of parties to the UNFCCC, the Kyoto protocol and the Paris agreement, the representatives of observer states and the officials of the specialised agencies of the UN will have immunity from suit and legal process. Those immunities cover things done or omitted to be done only while they are exercising their official functions in connection with the Glasgow conference and during their journeys to and from conference premises. The order also provides for the inviolability of any private residence used by representatives during COP26, as well as exemptions and privileges in respect of personal baggage and exemption or relief from all devolved and local taxes.
Importantly, the draft order permits that immunity can be expressly waived by an appropriate party or state. It also provides limited immunity from suit and legal process for representatives of the clean development mechanism executive board. That immunity is conferred only while the executive board exercises its official functions as part of the conference and can be waived by the secretary general of the UN.
It is customary for a sovereign state to grant such privileges and immunities to diplomatic missions and international organisations, to enable them to function. The host country agreement between the UK and the UN on COP26 is broadly in line with that global practice and includes provisions to ensure that immunities and privileges do not impede the proper administration of justice. It is important to emphasise that immunity does not provide carte blanche for ignoring the laws and regulations of the host country. The privileges and immunities that will be conferred by the order are granted primarily on the basis of strict functional need, and it has been agreed by the UK and the UN that they are of no greater an extent than is required to enable COP26 and the specified individuals connected with it to function effectively.
The immunities and privileges are limited in that they apply only to official functions that are undertaken in connection with the Glasgow conference, they can be waived and they do not give an individual freedom to commit criminal activity. The immunity is similar to but more limited than that which has, for generations, been conferred on diplomats working in foreign jurisdictions. As with diplomatic immunity, all individuals who benefit from such privileges and immunities in Scotland are expected to respect Scots law, both criminal and civil.
The order will implement the agreement that the UK has reached with the UNFCCC secretariat in line with global practice. It will enable COP26 to be held in Glasgow and the conduct of associated activities in the UK, while ensuring and upholding protections for the effective administration of justice. As a good global citizen, the Scottish Government has a responsibility to bring the draft order to the Parliament.
Thank you very much, minister—that is very helpful.
As no member has indicated that they wish to ask a question, I invite the minister to speak to the draft European Union and European Atomic Energy Community (Immunities and Privileges) (Scotland) Order 2021.
The purpose of the draft order is to confer immunities and privileges, in so far as those are within devolved competence, on the delegation of the EU and Euratom, their staff members, diplomatic agents and family members. The privileges and immunities are conferred in accordance with the UK-EU establishment agreement. The order will give effect to the devolved aspects of that agreement.
Equivalent provision for reserved matters and devolved matters in the rest of the UK was conferred by legislation at Westminster in July 2021. However, to the extent that the privileges and immunities relate to devolved matters, the issue falls again to the Scottish Parliament.
Before I go into the draft order in further detail, it might be helpful to set out the background. Following the UK’s departure from the EU, the EU established the delegation of the European Union to the United Kingdom, which replaced European Commission representation. The delegation is responsible for representing the interests of the EU in the UK and for co-ordination among the 27 EU member states. EU delegations exist in more than 140 countries outside the EU around the world. The EU negotiates establishment agreements with each of those countries to regulate its status, privileges and immunities.
Legislation is required to implement in UK domestic law the obligations of the UK-EU establishment agreement. Two separate orders are required: a Scottish order and a parallel UK order. The UK order came into force on 22 July 2021. Contingency measures are currently in place by virtue of the European Union (Withdrawal) Act 2018. However, if a Scottish order is not made, disparity will remain between Scotland and the rest of the UK in giving effect to the establishment agreement.
I turn to the detail of the draft order. It treats the EU delegation, including Euratom, in terms that are broadly similar to those that have been agreed with other non-EU Governments globally. Important provisions are included to ensure that the immunities and privileges that are conferred do not impede the proper administration of justice.
The draft order provides the EU delegation with criminal, civil and administrative immunity when operating within its official activities. The premises and archives of the delegation, in so far as they are in Scotland, are also to be inviolable, and the property and assets of the delegation in Scotland are to be immune from search, confiscation or other interference.
EU staff members who have been notified to the Foreign, Commonwealth and Development Office as diplomatic agents will have criminal, civil and administrative immunity, and their residences will be inviolable. Diplomatic agents and their family members will not be obliged to give evidence as witnesses, and their personal baggage will be exempt from inspection unless there are serious grounds for such inspection.
The draft order confers criminal, civil and administrative immunity to staff members, including immunity from personal arrest and detention, but only in respect of the exercise of their functions within the scope of their official activities. Staff members’ official papers and correspondence will also be inviolable.
The draft order provides certain fiscal exemptions for the delegation, its staff and their family members. Those include exemptions from direct taxes on the assets, property, income and operations of the delegation. The diplomatic agents, staff members and their family will also be afforded various exemptions in respect of their furniture and personal effects, as well as relief from paying council tax. However, they will not be entitled to any devolved benefits that are paid.
Importantly, the draft order permits that immunity for diplomatic agents, staff members and their family members can be expressly waived in certain circumstances. For example, immunity and inviolability will not be conferred in respect of any alleged road traffic accidents and road traffic offences.
The draft order implements the establishment agreement that the UK has reached with the EU regarding its delegation in London, in line with global practice. It enables the delegation to conduct its activities in the UK while ensuring and upholding protections for the effective administration of justice. The European Union delegation plays an important role in the UK-EU relationship, supporting a partnership based on friendly co-operation.
I commend the draft order to the committee.
Do members have any questions?
I thank the minister for her thorough explanation. I do not have any questions, but it is worth noting that the minister specifically said that there will be no immunity in relation to road traffic offences, which was an issue that sprung to my mind.
I thank Pauline McNeill for noting that change. That specific carve out has been agreed for the draft order.
The next item is formal consideration of the motions to approve the two affirmative instruments. I invite the minister to move the motions.
Motions moved,
That the Criminal Justice Committee recommends that the Conference of the Parties to the United Nations Framework Convention on Climate Change (Immunities and Privileges) (Scotland) Order 2021 [draft] be approved.
That the Criminal Justice Committee recommends that the European Union and European Atomic Energy Community (Immunities and Privileges) (Scotland) Order 2021 [draft] be approved.—[Ash Denham]
Motions agreed to.
I invite the committee to delegate to me the publication of a short factual report on our deliberations on the affirmative Scottish statutory instruments that we have considered today. Are we agreed?
Members indicated agreement.
That completes consideration of the two affirmative instruments. I thank the minister and her officials for attending the meeting.
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