问. Welcome to the Justice Committee's 14th meeting of 2017. We have apologies from Oliver Mundell and I welcome Alexander Stewart to the committee who is substituting for Oliver today. Agenda item 1 is consideration of the affirmative instrument on the international organisation immunities and privileges Scotland amendment order 2017. I welcome Annabel Ewing, minister for community safety and legal affairs, along with her officials, Hamish Goddaw. Policy officers, civil law and legal systems, system division, and Greg Watt will occur solicitor, solicitor's constitutional and civil law division. I refer members to paper 1, which is a note from the clerk, and invite the minister to make a short opening statement. Good morning and thank you, convener. The draft international organisations, Immunities and Privileges Scotland, Amendment Order 2017, amends certain legal immunities and privileges in connection with the European Organization for Astronomical Research in the Southern Hemisphere, otherwise known as the European Southern Observatory, or ESO, for short. ESO is an intergovernmental organisation supported by 16 member states, including the United Kingdom, along with the whole state of Chile. It was established by an international convention signed in 1962 in Paris. It is developing a giant telescope, which is in an advanced stage of design by astronomers and industry across Europe, led by ESO. The UK astronomy technology centre at the Royal Observatory in Edinburgh is leading the partners involved in the UK part of this international project. There are some 20 full-time equivalent members of staff working on the project and the work is split in fact between some 40 to 50 individual staff members. 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 signed in 1974. The conferral of immunities and privileges on officers of the organisation is effectively a condition of membership. The UK Government joined ESO in 2002, but the protocol on the privileges and immunities of the organisation only came into force for the UK on September 2012. As part of the UK's membership of 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. Equivalent provision in respect of reserved matters and devolved matters in the rest of the UK has been conferred by legislation at Westminster. To the extent that the privileges and immunities relate to devolved matters in Scotland, however, conferral rightly falls to the Scottish Parliament. The purpose of that order is to correct an error that was inadvertently made to the principle order, the international organisations immunities and privileges Scotland ordered 2009, by an amending order in 2010. That is a very complex area of law, and the policy note therefore sets out a comprehensive explanation of the position. In fact, articles 7 to 19 of the protocol require member states to grant a number of privileges and immunities to the organisation and to its officers and staff. The majority of those do relate to reserved matters and are dealt with in the parallel United Kingdom order. In fact, an error in the UK order is a failure to confer certain immunities and privileges and officers of the organisation who are British nationalists came to light because the ESO pointed out that some of its staff were not receiving the reserved tax exemptions to which they were entitled. When the Foreign and Commonwealth Office alerted Scottish officials to the discrepancy in the UK order relating to reserved tax, the Scottish order was reviewed by Scottish officials last autumn and it was discovered that there was a different mistake unrelated to taxation. In fact, the Scottish order had conferred too many immunities and privileges in one instance only, that is, on high officers of the organisation, specifically the director general of ESO or a person acting in their stead in the event that they may be British national. It is unclear how the discrepancy in the original Scottish order rose and, whilst it is regrettable, officials have acted to remedy it as soon as it was realised in the autumn of last year that an amendment was required. The work had to be done in tandem with the FCO in order that the two orders, the Scottish order and the UK order, might be considered at the same privy council meeting. We understand that the discrepancies in the Scottish order have given rise to no practical issues. In that regard, it should be noted that the director general of ESO has been a Dutch person since 2007. The purpose of this order today, therefore, is to correct and limit the provision of immunities and privileges of high officers of ESO who might in the future be British nationals in the course of any activities in Scotland in order to reflect the equivalent Westminster order and the terms of the founding agreement. High officers who are British nationals will only be entitled to more limited immunities and privileges, namely exemption from income tax and immunity from legal process in respect of acts performed by them in the exercise of their functions and within the limits of their authority, except in the case of motor traffic offences committed by them or of damage caused by motor vehicles belonging to or driven by them. The order will therefore help the UK fulfil its international obligations in respect of Scotland. I hope, convener, that this slightly more comprehensive overview this morning of what is a technical and complex area of the law has been helpful for members, and I would be happy, of course, to seek to answer any questions. Do members have questions for the minister, Stuart Stevenson? Thank you very much, convener, and the answers to my question will not influence how I will support this, regardless of the answers. The minister, in her remarks, referred to motor traffic offences and how they are outside the immunity. I just wanted to be clear what motor traffic offences in this context means, and I specifically am thinking of parking offences, and in particular there being some parking in Scotland that is subject to criminal law and some that is subject to civil law being decriminalised. I just wondered what the phrase motor traffic offences, which is in paragraph 7 of the policy memorandum and to which you referred, what it actually means. In other words, it is one of the urban myths that diplomats can park anywhere, and I just thought that it might be useful to get on the record the limitations or perhaps shoot down the urban myth forever. Yes, I thank the member for his question, and it is a very pertinent one, because I think that there is a myth about the extent of immunities and privileges in the circumstances and, of course, it is the case that the relevant officials concerned are required to be the laws of the host country, and that includes the parking laws. I do not really think that it would make any difference whether that would be the case only in circumstances where parking had not been decriminalised or vice versa, it would apply across the board. You are required to obey the laws of the host country and the immunities and privileges are limited to circumstances in which you are acting in exercise of your functions with the motor vehicle exception and that you are acting within the limits of your authority. That is the extent of the immunities and privileges, and parking fines are still payable in all circumstances. John Finch. Are you able to say the status of the UK legislation at the moment, please? Well, I understand that there is to be a debate on that order in Westminster, I think, next week, if that is official sorry, the 25th of April. The plan is that both orders, if approved, would go to the Privy Council on the 24th of May, so that is the timing of the two pieces of secondary legislation. Thank you. I am reassured that you say that it can be confusing and complex, because that is certainly how I found it. Nonetheless, from the note, it says that state parties are, however, required to extend article 16 immunity to all persons in the service of the organisation, regardless of their nationality or permanent residence. Can you clarify what that means? Yes, that is the tax exemption entitlement. That is what that refers to, that the position had been, and the reason that this came to light in terms of the error both in the UK equivalent order and the Scottish order was that, in fact, the ESO, I presume further two issues raised by officials themselves, raised the point that some officials were not receiving the tax exemption entitlements to which they were entitled under the immunities and privileges. It is then the case that that was looked into, and it was noted that, in fact, the protocol required that that be applied equally to your own citizens and those of other contracting parties, but that was where the error in the UK order had occurred, such that that provision was disapplied to the benefit of British nationals. That is what the UK order is intended to correct. That mistake was not carried over in the Scottish order. You mentioned income tax error. What other taxes would that relate to? Other taxes? Yes, but the question was relating to which specific taxes. There are various exemptions set down in the protocol, and I would be happy to write to the member. I mean, it is quite detailed and referred to other pieces of statute, but I think that primarily the focus on the part of the officials concerned would be the exemption from local income tax. It would be the normal issue of particular focus of the individual officials concerned. I would be very grateful to receive that information. Thank you. Are you able to say then, with regard to this specific organisation, how many individuals this would apply to? In terms of the number of British nationals working for the ESO out with Scotland, I do not have that figure to hand, but we can find that out. Within Scotland, the officials concerned would be those who may have a link to the telescope project currently taking place in the Royal Observatory. Again, we would have to, as I said, the number of full-time equivalent members of staff working on the project at the Royal Observatory in Edinburgh is 20, which encompasses about 40 to 50 individuals in terms of the actual number of individuals, rather than full-time equivalent posts. I would need to have officials check on the exact status of each of them to see whether they were full-time officials or not, as the case might be. Potentially that is 50 people in Scotland for this organisation not paying tax? Well, not being subject to exemption from the tax of the UK, yes, in terms of income tax, and that would be the normal position with respect to international organisations. Founded by international treaty, which has an immunities and privileges protocol as part of their condition of membership of that organisation, and that would be the case, then for British nationals working in other relevant member states of this, contracting parties of this organisation. It would not be a benefit simply that it would be applicable uniquely to British nationals or others working in the UK, but it would be applicable ergo omnis to those nationals of the contracting parties working to further the functions of the organisation and within the limits of their authority. On exemption from the law, can you confirm that that is both the civil and the criminal law? Yes, it is. Immunities and privileges are deemed to be a functional necessity in international law and international convention, but they are not to go wider than is necessary to secure that objective of functional necessity. In the incident case, yes, there would be in principle an application in terms of both the civil and the criminal law, but it is limited by the very important caveat that the immunities and privileges only kick in in the circumstances where the individual concerned is acting in performance of the exercise of the functions of the international organisation concerned, in this case, the ESO and within the limits of their authority. Therefore, in practice, I guess what you would be looking at would be white collar crime if that. Certainly, as I said before to Mr Stevenson, you are required to obey the laws of the host country and it would be therefore easy to see what particular offences under the criminal law could not ever be further to the privileges and immunities as laid down in the protocol, for example assault or crimes of that type, but perhaps white collar crime could potentially fall within the scope of the immunities and privileges. Who would determine that, minister? How is it determined? There is a process where the issue of immunities and privileges arise. As far as I understand, there is a process that would be followed because that would be the case as part of the understanding of how the privileges and immunities were to work across all the contracting parties, and that would be how matters would proceed. However, as I say, the actual scope of the protection is limited to where you are carrying out your job and the limits of your authority, and you are still required to obey the law of the host country. Who would determine that? It depends on what scenario you are talking about. If you were talking about the commission of if you were charged with serious assault, it would be quite clear that the charges would proceed in normal way. However, I would imagine that there would nonetheless be some process in terms of notification further to privileges and immunities scenarios, and that would be the case for all organisations that have privileges and immunities protocol underpinning the membership over that organisation. That is how international organisations have developed, including the United Nations, over many decades thus far. That is the accepted position. Of course, there have been high profile cases, for example in the United States, where the diplomatic community in this, as we are trying to explain, is lesser than the diplomatic community under the Vienna Convention, but where diplomatic community has come up against the law of the relevant country where the official has been working, and there have been certain high profile cases, the immunity conferred here, and that is what the order is intended to correct. It is not conferring diplomatic community per the Vienna Convention. It is conferring a particular protection where you are carrying out the functions of your job and within the limits of your authority. It is placing no restriction on access to premises as applies in other orders. No restriction on access to premises? I am not quite sure about access to premises. I am not quite sure what you mean in that regard. Well, in other orders, what is the phrase? Involatile or something like that? Oh, the inviability of residence. Oh, sorry. That would have been the equivalent protection that would be equivalent to comparable ranks under the Vienna Convention, and that is the protection that would be deemed to be in excess of what was required under the protocol in the event that it is a British national concern, which has not been the case, because for this one post, the director-general of the SOA or the Person Authorised Act in His or Her State, the position has been that that person is a Dutch national and that person was appointed in 2007 and the protocol came into effect in the UK in 2012, so there has not been any practical issue as a result of the way that the initial order had been drafted, but that will not now be the level of privileges applicable where the national is a British national, and that is what the order is intended to correct. So it is just a civil law exemption, a criminal exemption and an exemption from taxation, but not a question of the inaccessibility. In the circumstances where the national is a British national, this order is intended to correct the position in those circumstances only, so that is what the order is designed to do, because the way that the previous order had been drafted extended the level of privileges to a greater extent than the protocol determined, and that is what the order is trying to correct. So it would be in circumstances where the future director-general were to be a British national, then there would be no inviability of premises, for example. Okay, for me, just three very short ones. There is no consultation on this order, minister, and no impact assessment. Well, I am advised by officials that it was viewed as a technical amendment. There had been the initial order in place and this is designed to correct that particular provision that I just referred to in that regard. You said that 40 to 50 with regard to that particular organisation. What is the cumulative effect of all those in terms of numbers who have this level of immunity granted to them in Scotland? You mean further to this organisation or to all the other organisations in Scotland? I am afraid that I do not have that information as to how many individuals are working for international organisations that are treaty-based organisations that have a protocol in immunities and privileges. I think that that would require a particular job of work to ascertain, firstly, which international organisations meeting that description are. Do you have operations in Scotland and, second, how many people are involved in working for them in Scotland? Third, how many are Scottish and UK nationals? I am afraid that I do not have that information. Okay, and finally, there was no business regulatory impact assessment done in respect of this, notwithstanding that it is financial matters that bring it to light in the first instance. I am advised by officials that, in fact, it is the UK order that is dovetailing this Scottish order before you today that is correcting the erroneous previous UK order, which had suggested that the tax exemption entitlement could not be extended to British nationals of the European Southern Observatory. Therefore, that is the UK order that has jurisdiction there because it is dealing with reserved tax matters. This Scottish order is rather dealing with the position of the circumstances where, at some future date, the director-general of the organisation or a person authorised act in his or her stead may be a British national, and that is the extent of the legislative reach of the order before the committee today. Are there any more questions from the minister? I appreciate that you are talking to this specific piece of legislation minister, but can I just clarify that, if there was any additional taxation that was accrued or taxable income outwith the exercise of the functions of the authority, then that would be payable, obviously. In normal circumstances, yes. You have got to look at the way in which the privileges and immunities are focused on, and they are focused on people exercising their function further to their work for that organisation and where they are acting within their authority. That is why I indicated that, in normal circumstances, that would be primarily income tax. Of course, we are going to write to the committee and respond to Mr Finlay's supplementary question. Okay, thank you for that. Are there any further comments that you want to make, minister? No. Agenda item 2 is formal consideration of the motion in relation to their affirmative instrument. The DPLR committee has considered and reported on this instrument and had no comment on it. The motion will be moved and there will be an opportunity for formal debate if necessary. Motion 04479, that the Justice Committee recommends that the international organisations, immunities and privileges, Scotland amendment order 2017 draft be approved. Can I invite the minister to move the motion? Formally moved. Do any members want to speak? John Finnie? Thank you, convener. I think it's just yourself, convener, and I will recall that we were in a similar position in the last session, indeed, with an order in respect of an organisation called the Asian Infrastructure Investment Bank. At that time, I expressed some surprise. I absolutely get the international long-standing convention, but it does seem to me to be a bizarre situation that we have government ministers representing legal departments coming here to extol us to have people to be exempt from civil liability, criminal liability and, indeed, taxation. There is no way that I will be lending my support to this order. Are there any other comments, minister? Just to respond briefly to Mr Finnie's point, firstly, this is just an order correcting the previous order in Scotland, the reach of which, as I say, is to cover one specific instance of the director general of the SO being a British national. What I would say is that this has been a long-standing debate, the extent of privileges and immunities that international organisations rely on in order to, in their view, be as effective as possible and the reach of the national law of the host country. It is always a balancing act. I have tried to explain that the balance is such that you are, in general circumstances, required to be the law of the host country, but that, nonetheless, there will still be certain privileges and immunities. That is a balancing act that international contracting parties have worked on over many decades. The feeling that underpins this is that such privileges and immunities are necessary in order to protect the integrity of that international organisation as far as its workings in any particular country are concerned and, in particular, where there could be circumstances where political developments in a particular country could, for various reasons, put individuals and their reasonable expectation of the right to carry on their peaceable residents and their employment and could potentially put them at risk. That is the kind of thinking behind why we have, in international law, privileges and immunities in the first place. However, I recognise that it is always a balancing of interests. No further questions and we move straight to the vote. Then I put the question, is that motion 04479, the name of Annabelle Ewing, be approved? Are we all agreed? No. We are not all agreed, there will be a division. All those in favour? Thank you. And all those against? Thank you. The result is 10 in favour and 1 against. That concludes the consideration of the affirmative instrument. The committee's report will note and confirm the outcome of the division and the fact that the minister is going to supply further information to the committee. On that basis, members are content to delegate authority to me as convener to clear the final of the draft report. I thank the minister and her officials for attending and suspend briefly to allow the minister and her officials to leave. Agenda item 3 is consideration of three negative instruments. Act of Sederent, fees of solicitors in the court of session and share of court amendment pursuers offers 2017. First tier tribunal for Scotland, housing and property chamber procedure amendment regulations 2017. And first tier tribunal for Scotland, tax chamber procedure regulations. I refer members to paper 2, which is a note by the clerk. The DPLR has considered and reported on all three instruments and had no comment on them. Do members have any comments? No. Are members or are the committee agreed that it does not wish to make any recommendation in relation to these instruments? I agree. Excellent, thank you. Agenda item 4 is feedback from the justice sub-committee on policing on its meeting of 30 March. I refer members to paper 3, which is a note by the clerk. I invite Mary Fee to provide feedback. The justice sub-committee on policing met on 30 March when it took evidence from the Auditor General for Scotland on the I6 programme review. The sub-committee heard that it is critical that the Scottish Police Authority and Police Scotland now put in place a plan that sets out how the benefits that the I6 was supposed to deliver will be secured. That is particularly important, given the emphasis on the use of technology in the recent policing 2026 draft strategy. The next meeting of the sub-committee is scheduled for Thursday 20 April, when it will take evidence from the Scottish Police Federation, the Association of Scottish Police Superintendents and Unison on the financial planning of Police Scotland and the Scottish Police Authority. As ever, members are welcome to attend, and I am happy to answer any questions. No further questions. In that case, we now move into private session. The next committee meeting will be on 25 April, when we will consider our draft stage 1 report on the railway policing Scotland Bill, and I suspend briefly to allow the public gallery to clear.