Policy background

5. The Government’s policy objective is to treat the CPA and ICRC in a comparable manner to international organisations of which the United Kingdom, or His Majesty’s Government in the United Kingdom, is a member. Such treatment usually entails the conferring of the legal capacities of a body corporate, as well as specific privileges and immunities (P&I) relating to the organisation, its property and information, and its personnel. As the CPA and ICRC would not otherwise be considered as international organisations – given that they are not inter-governmental, there also needs to be provision applying to them relevant legislation which applies in respect of international organisations in general.
6. The CPA is an unincorporated association established by Parliamentarians and is composed of branches within national and sub-national legislatures across the Commonwealth. Its purpose is: "to promote knowledge of the constitutional, legislative, economic, social and cultural aspects of parliamentary democracy, with particular reference to the countries of the Commonwealth" (CPA Mission Statement) 1 . The CPA is currently headquartered in the Parliamentary estate and draws its staff from across the Commonwealth, working closely with its over 180 CPA branches in nine geographic regions. The FCDO operates a long-standing programme partnership with the CPA and is currently working on projects to support Parliaments to adopt and implement updated Commonwealth benchmarks for democratic legislatures, with a focus on Parliaments in Africa and the Pacific. Treatment as an international organisation will facilitate the CPA to continue to operate fully across the Commonwealth and international fora. This will allow the organisation to participate fully in areas where they are currently restricted, including signing up to international statements and communiqués.
7. The ICRC is "an impartial, neutral and independent organisation whose exclusively humanitarian mission is to protect the lives and dignity of victims of armed conflict and other situations of violence and to provide them with assistance" (ICRC Mandate). 2 The organisation has unique legitimacy to engage all parties to conflicts and has unparalleled access to vulnerable groups in conflict situations, operating in dangerous and challenging situations across the world, and interacting with both State and non-State actors, where its independence and maintenance of confidentiality is essential to maintaining trust and its operational effectiveness. The ICRC is frequently the only agency operating at scale in many conflicts. Its specialised role engaging with all arms-bearers, including the growing number of Non-State Armed Groups, is coupled with its direct delivery of a comprehensive range of integrated humanitarian assistance and protection programmes. It is thus an essential partner for achieving FCDO’s global humanitarian objectives, as well as reinforcing the UK’s ambition to be at the heart of an unrivalled global network for economic, diplomatic and security partnerships through supporting the ICRC’s promotion and implementation of International Humanitarian Law.
8. The ICRC’s unique international humanitarian mandate and mission has been formally recognised by States in the Geneva Conventions and their Additional Protocols and it has been accorded a status or treatment equivalent to that of an international organisation with relevant personality and P&I to date, over 110 States have now accorded it relevant P&I, including all other permanent members of the United Nations Security Council. The conferral of relevant P&I to the ICRC is therefore critical to enable it to operate in the UK in accordance with its international mandate, maintaining its strict adherence to the principles of neutrality, impartiality and independence and its working method of confidentiality.
9. The Government’s policy objective is a matter of international relations and the United Kingdom’s foreign and development policy, which includes the conduct of relations with international organisations. As recognised in the 2013 Memorandum of Understanding between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers and the Northern Ireland Executive Committee, and re-affirmed in the review of Intergovernmental Relations (2022), the FCDO "will continue to be responsible for policy on diplomatic and consular relations with other countries and on all matters concerning international organisations represented in the UK" (paragraph D4.23) 3 and "international engagement and agreements…will be led directly by FCDO, either on a bilateral or multilateral basis where necessary". 4
10. The ICRC’s unique international humanitarian mandate means that it engages with conflict parties on International Humanitarian Law, working with prisoners, detainees and hostages in conflict zones. The ICRC maintains a long-standing and widely accepted working method of confidentiality. This means that the ICRC engages primarily in confidential and bilateral dialogues with States and others, and it expects States to respect the confidentiality of the information that is shared with them, including by ensuring that the content of that dialogue is not disclosed to any third parties nor used in any legal proceedings. If this information were made public through court or other processes, it would damage ICRC’s ability to have confidential dialogue with conflict parties, their humanitarian access, and could pose security risks to their employees.
11. The Act provides for an enabling power which allows for certain confidential information that the ICRC shares with the UK government to be exempted from legal disclosure requirements. Without such a provision, the ICRC is likely to restrict the information it shares with the UK due to the risks posed by disclosure. This includes information which provides important analysis and intelligence related to UK Government priorities. The enabling power does not provide an absolute or blanket exemption from disclosure requirements for all ICRC communications. Important limitations have been incorporated, for example the exclusion of criminal case.
12. There was previously no law granting P&I to the CPA or the ICRC in the UK, or otherwise enabling them to be treated in a comparable manner to international organisations. The Government would usually accord privileges, immunities and other facilities in respect of international organisations by Order in Council using delegated powers under the 1968 Act or the International Development Act 2002 (c. 1) ("the 2002 Act"). Where these powers in the 1968 Act or 2002 Act are not sufficient, it is necessary to use primary legislation to accord the relevant facilities.
13. The powers in the 1968 Act and 2002 Act, and in particular the powers at section 1 of the 1968 Act, are not available in respect of the CPA or the ICRC. This is because neither organisation is an inter-governmental organisation, but instead has its own unique constitutional arrangements reflecting its specific international mandate. Therefore, it is necessary to establish bespoke enabling powers which will allow – once the necessary statutory instruments have been made to implement the arrangements - both the CPA and ICRC to operate in the UK in a manner comparable to an international organisation, with associated P&I.
14. The Act provides necessary delegated legislation making powers so that the Government can provide for the CPA and ICRC to be treated in a manner comparable to an international organisation of which the United Kingdom, or His Majesty’s Government in the United Kingdom, is a member. The exact treatment, including P&I, will be determined by the Government in accordance with the functional needs of both organisations and will be detailed in separate written arrangements.