Commentary on provisions of Act

Section 1: The Commonwealth Parliamentary Association

20. Section 1 gives effect to the core purpose of the Act in respect of the CPA. It enables His Majesty by Order in Council to provide for the CPA to be treated in a manner comparable to an international organisation. Such treatment includes the conferral of the legal capacities of a body corporate; the provision of P&I commensurate with its functional needs in respect of the CPA and its Secretary General; and the application to the CPA of relevant statutory provisions relating to international organisations.
21. Subsection (1) provides that the Order in Council may specify an organisation named the Commonwealth Parliamentary Association, whether the organisation is established before or after the Act is passed. This will facilitate its proposed future operating model as a body corporate. Subsection (2) provides that the Order in Council may exclude from its application any branches or other subordinate bodies of the CPA. This ensures that the treatment comparable to an international organisation is limited to the core international organs of the CPA, such as the Secretariat; it is not intended that any privileges, immunities or other facilities would be extended to any of the national or sub-national branches of the CPA, including the UK branch.
22. Subsection (1)(a) enables conferral on the CPA of the legal capacities of a body corporate. This power is informed by the equivalent power at section 1(2)(a) of the 1968 Act. The key capacities relevant to the operation of an international organisation in the UK are the capacity to conclude contracts, to acquire and dispose of property, and to institute and be party to legal proceedings.
23. Subsection (1)(b) enables the provision of specific P&I in respect of the CPA. These are limited to the P&I set out in Part 1 of the Schedule. The actual suite of P&I to be accorded, including relevant exceptions and limitations, will be determined on the basis of the functional need of the organisation and will be specified in the Order in Council. This power is informed by the equivalent power at section 1(2)(b) of the 1968 Act.
24. Subsection (1)(c) enables the provision of specific P&I in respect of the Secretary-General of the CPA. These are limited to the P&I set out in Part 2 of the Schedule. Sub-paragraph (ii) ensures that this facility may be provided to the person who leads the international Secretariat of the CPA, even if the name of the role were to change in a future reorganisation. The provision of P&I is limited to the Secretary-General of the CPA in recognition of the Secretary-General’s international and leadership role within the organisation; it is not proposed that any other officers or staff of the CPA should be accorded P&I by virtue of the Act. This power is informed by the equivalent power at section 1(2)(c) of the 1968 Act.
25. Subsection (1)(d) provides for the Order in Council to specify certain statutory provisions in relation to international organisations which should apply in relation to the CPA with any necessary modifications. This provision will ensure that the CPA can be accorded comparable treatment to an international organisation, in particular where the definition of international organisation in the legislation is limited to inter-governmental organisations.

Section 2: The International Committee of the Red Cross

26. Section 2 gives effect to the core purpose of the Act in respect of the ICRC. It enables His Majesty by Order in Council to provide for the ICRC to be treated in a manner comparable to an international organisation. Such treatment includes the conferral of the legal capacities of a body corporate; the provision of P&I commensurate with its functional needs in respect of the ICRC and its officers and servants; and the application to the ICRC of relevant statutory provisions relating to international organisations. Section 2 also provides for the protection of certain information provided confidentially to His Majesty’s Government by the ICRC from legal disclosure requirements, reflecting the ICRC’s standard working method of confidentiality which is designed to protect its staff and operations in active conflict zones.
27. Subsection (1)(a) enables conferral on the ICRC of the legal capacities of a body corporate. This power is informed by the equivalent power at section 1(2)(a) of the 1968 Act. The key capacities relevant to the operation of an international organisation in the UK are the capacity to conclude contracts, to acquire and dispose of property, and to institute and be party to legal proceedings.
28. Subsection (1)(b) enables the provision of specific P&I in respect of the ICRC. These are limited to the P&I set out in Part 1 of the Schedule. The actual suite of P&I to be accorded, including relevant exceptions and limitations, will be determined on the basis of the functional need of the organisation and will be specified in the Order in Council. This power is informed by the equivalent power at section 1(2)(b) of the 1968 Act.
29. Subsection (1)(c) enables the provision of specific P&I in respect of the ICRC’s personnel. These are limited to the P&I set out in Part 2 of the Schedule. Sub-paragraphs (i) and (ii) apply this provision to specified officers of the ICRC as well as other specified classes of officers and servants, for example ICRC delegates posted to the Regional Delegation in London. This power is informed by the equivalent power at section 1(2)(c) and (d) and (3)(b) of the 1968 Act.
30. Subsection (1)(d) provides for the Order in Council to specify certain statutory provisions in relation to international organisations which should apply in relation to the ICRC with any necessary modifications. This provision will ensure that the ICRC can be accorded comparable treatment to an international organisation, in particular where the definition of international organisation in the legislation is limited to inter-governmental organisations.
31. Subsection (1)(e) allows for certain confidential information that is held by the UK government and that was obtained from the ICRC to be exempt from legal disclosure requirements. This exemption applies to any disclosure requirement imposed by an order of a court or tribunal in proceedings (except criminal proceedings) or a statutory provision or other rule of law.
32. Subsection (2) defines the term "protected ICRC information" to which the exemption from disclosure requirements applies as confidential information held by the UK Government and obtained by it from the ICRC. Subsection (3), which echoes the confidentiality test in section 27(3) of Freedom of Information Act 2000, defines what the term "confidential" means for the purposes of subsection (2)(c).
33. Subsection (4) establishes that exemption from disclosure requirements does not apply to information if the ICRC has published it or has agreed to its disclosure for the purpose of the disclosure requirement in question. Subsection (4)(b) allows for the ICRC to consent to disclosure for the purposes of one set of proceedings but not for another.
34. Subsection (5) further confirms that nothing in section 2 or an Order in Council made under it affects the common law rules about the withholding of information on the grounds of public interest immunity. This is to provide certainty that public interest immunity may still be available in cases which fall under the confidential information exemption in this Act.

Section 3: Evidence

35. This section provides for the Secretary of State to be able to issue a certificate stating matters of fact relating to the status of persons who may have privileges or immunities by virtue of an Order in Council made under section 1 or 2 of the Act. Such a certificate is to be treated as conclusive evidence of those facts for the purposes of proceedings.
36. This section has a similar effect to equivalent provisions in comparable enactments, such as section 8 of the 1968 Act, section 4 of the Diplomatic Privileges Act 1964 or section 11 of the Consular Relations Act 1968.

Section 4: Orders in Council

37. Orders in Council are used when an ordinary statutory instrument would be inappropriate, such as for transferring responsibilities between government departments. They are issued by and with the advice of His Majesty’s Privy Council and are approved in person by the monarch. It is long standing practice that P&I are conferred by Order in Council. Examples include section 1(2) of the 1968 Act and section 12(1) of the 2002 Act.
38. Subsection (1) of this section provides that any Order in Council made under section 1 or 2 of the Act is subject to the draft affirmative Parliamentary procedure. Statutory instruments that are subject to the ‘draft affirmative procedure’ require the approval of both Houses of Parliament before they may have effect.
39. Subsection (2) provides further detail as to the scope and extent of the delegated legislation making power under sections 1 and 2. In particular, it provides that an Order in Council:
    1. may make different provision for different cases and for different persons; and
    2. may contain consequential, supplementary, incidental, transitional or saving provision.
40. This subsection (2) also provides the enabling power for two important aspects which are fundamental to the operation and management of P&I in respect of an international organisation. First, the Order in Council may specify circumstances where privileges, immunities or exemptions do not apply, whether because of an exception to those privileges, immunities or exemptions or because they have been waived by the organisation. Second, the Order in Council may specify that fiscal reliefs and exemptions are subject to arrangements or conditions imposed by the Secretary of State or the Commissioners of His Majesty’s Revenue and Customs (as the case may be). This will facilitate the application to the organisations of the existing administrative schemes and processes in respect of international organisations which are administered by, among others, the FCDO and HMRC.
41. Subsection (2) also ensures that conferral of immunities, privileges and exemptions can be restricted in accordance with Government policy and that, where necessary, mitigations can be put in place in the exercise of the delegated powers to ensure they are being exercised in a way which is compatible with Convention rights. This may be particularly important in respect of concluding appropriate arrangements with the ICRC in the context of the treatment of confidential information.

Section 5: Interpretation

42. The definition of "statutory provision" ensures that it is possible for provision to be made treating the CPA and the ICRC as international organisations in respect of all relevant legislation, both primary and secondary, and including devolved legislation in Scotland, Wales and Northern Ireland.

Section 6: Extent, commencement and short title

43. The Act extends across the whole of the United Kingdom and comes into force on the day it is passed.

Schedule

44. Part 1 of the Schedule sets out the P&I which may be conferred on the CPA or the ICRC.
45. Part 2 of the Schedule sets out the P&I which be conferred on the personnel of the CPA or the ICRC.
46. It is customary practice to grant P&I to international organisations and related persons. The P&I which may be conferred on international organisations by Order in Council under the 1968 Act have informed the list of P&I in the Schedule.
47. Conferral of the privileges, immunities and exemptions may be subject to specific exceptions in accordance with section 4(2)(b) of the Act, while any exemption or relief from a tax or duty may be made subject to arrangements or conditions in accordance with section 4(2)(c).