TABLE OF CONTENTS |
Paragraph |
I. INTRODUCTION |
1 |
II. STATE IMMUNITY |
6 |
III. ARTICLE 6, ECHR |
|
A. When is Article 6 engaged? |
11 |
B. The application of Article 6 to embassy employment disputes |
24 |
C. Section 16(1)(a), State Immunity Act, 1978 |
31 |
1. Sengupta v. Republic of India |
32 |
2. Is a rule of the breadth of section 16(1)(a), State Immunity Act required by international law? |
|
(1) International conventions |
|
(a)European Convention on State Immunity, 1972 |
33 |
(b) Vienna Convention on Diplomatic Relations, 1961 |
35 |
(c) UN Convention on Jurisdictional Immunities of States and their Property, 2004 |
36 |
(2) State practice |
41 |
(3) Conclusion on whether section 16(1)(a), State Immunity Act is required by international law |
53 |
D. Section 4(2)(b), State Immunity Act, 1978 |
54 |
E. Remedies in respect of infringement of ECHR |
67 |
IV. THE EU LAW CLAIMS AND THE EU CHARTER |
69 |
A. Horizontal Direct Effect |
76 |
B. Should the court decline to disapply sections 4(2)(b) and 16(1)(a), State Immunity Act on the grounds that it is not clear what rule applies in its place as a matter of international law? |
82 |
V. CONCLUSION |
86 |
THE
MASTER
OF THE
ROLLS:
I. INTRODUCTION
- This is
the
judgment
of the
court. Paragraphs 2 to 68 have been substantially written by Lloyd Jones L.J. and paragraphs 69 to 85 have been substantially written by Arden L.J.
- These appeals raise
the
question whether a member
of the
service staff
of
a foreign diplomatic mission to
the
United Kingdom may bring proceedings in this jurisdiction against
the
employer state to assert employment rights or whether such a claim is barred by state immunity. This has led, in turn, to a consideration
of the
compatibility
of the
State Immunity Act 1978 ("SIA") with Article 6, European Convention for
the
Protection
of
Human Rights and Fundamental Freedoms ("ECHR") and Article 47, Charter
of
Fundamental Rights
of the
European Union ("EU Charter").
- Ms. Benkharbouche, a Moroccan national, was employed as a cook at
the
Sudanese
embassy
in London. She was dismissed and brought claims against
the embassy
for unfair dismissal, failure to pay
the
minimum wage and breach
of the
Working Time Regulations 1998.
The embassy
claimed immunity under section 1 SIA. Employment Judge Deol upheld
the
plea
of
immunity and dismissed
the
claims. He considered that
the
claims were based on an employment relationship
of
a private rather than a public nature and therefore came potentially within
the
ambit
of
Article 6. He also accepted that there was a potential inconsistency between Article 6 and
the
blanket immunity conferred by
the
SIA. However, in his view section 16(1)(a) SIA, which excludes from
the
exception to immunity under section 4 proceedings concerning
the
employment
of the
members
of
a mission, could not be read down in accordance with section 3(1), Human Rights Act 1998 ("HRA") to permit
the
claim. He also rejected
the
submission that he should disapply
the
SIA, since it would be beyond
the
powers
of the
tribunal to do so and he did not consider that Article 47 provided a means
of
enforcing EU rights over and above that provided by
the
HRA.
- Ms. Janah, a Moroccan national who had lived in
the
United Kingdom since 2005, was employed as a member
of the
domestic staff
of the
Libyan
embassy
in London where her duties included cooking, cleaning, laundering, shopping and serving meals. She was dismissed and brought claims against Libya for unfair dismissal, arrears
of
pay, racial discrimination and harassment and breach
of the
Working Time Regulations 1998. Libya claimed state immunity under section 1 SIA. Employment Judge Henderson upheld
the
plea
of
immunity and dismissed
the
claims. It was conceded that Ms. Janah was not habitually resident in
the
United Kingdom at
the
time her contract
of
employment was made with
the
result that section 4(2) SIA disapplied
the
exception to immunity created by section 4(1).
The
employment judge felt unable to decide whether applying section 4(2) to Ms. Janah's case would infringe Article 6. However, she concluded that
the
grant
of
immunity pursuant to section 16 engaged Article 6 and that that right had been denied. However,
the
statutory provisions could not, in her view, be read down so as to accord with Article 6 since to do so would depart substantially from a fundamental feature
of the
SIA. Furthermore,
the
tribunal could not decline to give effect to
the
provisions
of the
SIA. Although Article 47 was part
of
national law and directly effective, she considered that it was not for
the
tribunal to consider what she regarded as a freestanding complaint under EU law. She also considered that there was significant doubt over
the
enforceability
of the
EU Charter before
the
courts
of the
United Kingdom.
- Appeals from
the
two decisions were heard together by Langstaff J.,
the
President
of the
Employment Appeal Tribunal. (Benkharbouche v.
Embassy of the Republic of Sudan
; Janah v. Libya [2014] ICR 169.) There, as before
the
tribunals, it was common ground that
the
SIA on its face appeared to grant procedural immunity from suit.
The
issues on
the
appeal were, rather, (a) whether
the
claims engaged Article 6, (b) if so, whether
the
statutory provisions could be interpreted in a manner consistent with Article 6, and (c) if not, whether
the
statutory provisions could be set aside.
The
President considered that
the
exercise
of
jurisdiction over these disputes would not interfere with any public governmental function
of the
respondent states and although
the
argument that
the
SIA struck an appropriate balance might at one stage in recent history have provided a sufficient answer, it no longer did so in
the
light
of the
developing extent
of the
restrictions on state immunity. Accordingly he considered that there had been a breach
of
Article 6 insofar as section 16 SIA had been applied. He left open
the
question whether
the
application
of
section 4(2)(b) SIA to these claims would also infringe Article 6. Proceeding on
the
assumption that
the
application
of
both
of
these provisions would infringe Article 6, he considered that they could not be read down in accordance with section 3(1) HRA. However,
the
provisions
of the
SIA were also in conflict with
the
right
of
access to a court under Article 47 EU Charter which was a general principle and a fundamental right in EU law. To
the
extent that
the
employment rights asserted were within
the
material scope
of
EU law, namely
the
claims
of
both claimants in respect
of
breach
of the
Working Time Regulations 1998 and
the
claim by Ms. Janah in respect
of
racial discrimination and harassment,
the
court was required to disapply
the
infringing provisions
of the
SIA pursuant to section 2(1), European Communities Act 1972.
II. STATE IMMUNITY
The
law
of
state immunity in
the
United Kingdom is contained, subject to certain limited exceptions, in
the
SIA.
The
Act made new provision with respect to proceedings in
the
United Kingdom against other states. It replaced
the
common law which until
the
1970s had conferred an almost absolute immunity on foreign states but which in
the
period immediately prior to
the
enactment
of the
SIA had adopted a restrictive immunity limited to sovereign activities (
The
Philippine Admiral [1977] AC 373; Trendtex Trading Corporation v. Central Bank
of
Nigeria [1977] QB 529).
The
Act was passed, inter alia, in order to enable
the
United Kingdom to ratify
the
European Convention on State Immunity 1972 ("ECSI"). That Convention embodied a restrictive doctrine
of
immunity and imposed a treaty obligation on contracting states to implement voluntarily judgments given against them. That scheme is reflected in
the
provisions
of
Part I SIA defining
the
areas
of
non-immunity and in Part II
of the
statute which relates to
the
recognition
of
judgments against
the
United Kingdom in other contracting States.
- Section 1, SIA confers a general immunity from jurisdiction.
"Immunity from jurisdictionE+W+S+N.I.
1 General immunity from jurisdiction.E+W+S+N.I.
(1) A State is immune from
the
jurisdiction
of the
courts
of the
United Kingdom except as provided in
the
following provisions
of
this Part
of
this Act.
(2) A court shall give effect to
the
immunity conferred by this section even though
the
State does not appear in
the
proceedings in question."

The
following sections create exceptions to immunity. Section 3 provides that a State is not immune as respects proceedings relating to certain commercial transactions and contracts to be performed in
the
United Kingdom. Section 4 makes specific provision for contracts
of
employment and provides in relevant part:
" 4 Contracts
of
employment.E+W+S+N.I.
(1) A State is not immune as respects proceedings relating to a contract
of
employment between
the
State and an individual where
the
contract was made in
the
United Kingdom or
the
work is to be wholly or partly performed there.
(2) Subject to subsections (3) and (4) below, this section does not apply if
(a) at
the
time when
the
proceedings are brought
the
individual is a national
of the
State concerned; or
(b) at
the
time when
the
contract was made
the
individual was neither a national
of the
United Kingdom nor habitually resident there; or
(c)
the
parties to
the
contract have otherwise agreed in writing.
(3) Where
the
work is for an office, agency or establishment maintained by
the
State in
the
United Kingdom for commercial purposes, subsection (2)(a) and (b) above do not exclude
the
application
of
this section unless
the
individual was, at
the
time when
the
contract was made, habitually resident in that State.
(4) Subsection (2)(c) above does not exclude
the
application
of
this section where
the
law
of the
United Kingdom requires
the
proceedings to be brought before a court
of the
United Kingdom.
(6) In this section "proceedings relating to a contract
of
employment" includes proceedings between
the
parties to such a contract in respect
of
any statutory rights or duties to which they are entitled or subject as employer or employee."
Section 16 excludes certain matters from
the
scope
of
Part I
of the
Act.
Of
particular relevance in
the
present case is section 16(1).
"16 Excluded matters.E+W+S+N.I.
(1) This Part
of
this Act does not affect any immunity or privilege conferred by
the
Diplomatic Privileges Act 1964 or
the
Consular Relations Act 1968; and
(a) section 4 above does not apply to proceedings concerning
the
employment
of the
members
of
a mission within
the
meaning
of the
Convention scheduled to
the
said Act
of
1964 or
of the
members
of
a consular post within
the
meaning
of the
Convention scheduled to
the
said Act
of
1968;
(b) section 6(1) above does not apply to proceedings concerning a State's title to or its possession
of
property used for
the
purposes
of
a diplomatic mission."

The
effect
of the
exclusion
of
proceedings concerning
the
employment
of the
members
of
a mission from section 4 is that
the
exception to immunity created by that section does not apply to such cases and a state is therefore immune by virtue
of
section 1(1).
The
Diplomatic Privileges Act 1964 was enacted to amend
the
law on diplomatic privileges and immunities by giving effect to certain provisions
of the
Vienna Convention on Diplomatic Relations, 1961 ("VCDR"). Those provisions which are given effect in
the
law
of the
United Kingdom include Article 1 which provides in material part:E+W+S+N.I.
"For
the
purpose
of the
present Convention,
the
following expressions shall have
the
meanings hereunder assigned to them:
(a)
the
"head
of the
mission" is
the
person charged by
the
sending State with
the
duty
of
acting in that capacity;
(b)
the
"members
of the
mission" are
the
head
of the
mission and
the
members
of the
staff
of the
mission;
(c)
the
"members
of the
staff
of the
mission" are
the
members
of the
diplomatic staff,
of the
administrative and technical staff and
of the
service staff
of the
mission;
(d)
the
"members
of the
diplomatic staff" are
the
members
of the
staff
of the
mission having diplomatic rank;
(e) a "diplomatic agent" is
the
head
of the
mission or a member
of the
diplomatic staff
of the
mission;
(f)
the
"members
of the
administrative and technical staff" are
the
members
of the
staff
of the
mission employed in
the
administrative and technical service
of the
mission;
(g)
the
"members
of the
service staff" are
the
members
of the
staff
of the
mission in
the
domestic service
of the
mission;
(h) a "private servant" is a person who is in
the
domestic service
of
a member
of the
mission and who is not an employee
of the
sending State;
(i)
the
"premises
of the
mission" are
the
buildings or parts
of
buildings and
the
land ancillary thereto, irrespective
of
ownership, used for
the
purposes
of the
mission including
the
residence
of the
head
of the
mission."
- Members
of the
service staff are, therefore, members
of
a mission within section 16(1)(a) SIA and within
the
exclusion from section 4 SIA. Accordingly, Ms. Benkharbouche, a Moroccan national who was a cook at
the
Sudanese
Embassy
in London for several years until her dismissal in November 2010 is prima facie barred by
the
provisions
of the
SIA from pursuing her claims against her former employers in this jurisdiction. Similarly, Ms. Janah, a Moroccan national employed as a member
of the
service staff by
the
Libyan
Embassy
in London for several years prior to her dismissal in January 2012, is barred from pursuing her claims against her former employers here. In addition, in
the
case
of
Ms. Janah it was conceded that she was not habitually resident in
the
United Kingdom at
the
time her contract
of
employment was made with
the
result that section 4(2) SIA disapplied in her case
the
exception to immunity established by section 4(1). During
the
hearing before us we were told by Mr. Timothy Otty QC, counsel for both claimants, that
the
issue
of the
habitual residence
of
Ms. Benkharbouche has not been resolved below. So much was common ground before us on this appeal.
The
heart
of the
present appeals and cross-appeals lies in
the
question whether
the
applicable provisions
of the
SIA are compatible with Article 6 ECHR and Article 47 EU Charter and, if not, what consequences follow for
the
pleas
of
immunity.
III. ARTICLE 6, ECHR
A. When is Article 6 engaged?
- Article 6(1) ECHR provides in relevant part:
"In
the
determination
of
his civil rights and obligations or
of
any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
The
procedural guarantees provided by Article 6 in relation to
the
fairness and expedition
of
legal proceedings would be meaningless if
the
ECHR did not protect
the
right
of
access to
the
courts which is a precondition to
the
enjoyment
of
those guarantees. As a result
the
European Court
of
Human Rights has established
the
principle that Article 6(1) secures a right to have any claim relating to a person's civil rights and obligations brought before an independent and impartial tribunal. (Golder v. United Kingdom (1975) EHRR 524, at [28]-[36].)
The
Strasbourg case law recognises that
the
right is not absolute but is subject to limitations. Contracting States enjoy a margin
of
appreciation in this regard. However, national courts must be satisfied that
the
limitations applied do not restrict or reduce
the
access left to
the
individual in such a way or to such an extent that
the
very essence
of the
right is impaired. Moreover, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is no reasonable relationship
of
proportionality between
the
means employed and
the
aim sought to be achieved.
- Rules
of
state immunity are restrictions on access to
the
courts and their relationship to Article 6 has been considered on a number
of
occasions by courts in this jurisdiction and by
the
Strasbourg court. These authorities reveal rather different approaches.
The
issue arose for consideration by
the
House
of
Lords in Holland v. Lampen Wolfe [2000] 1 WLR 1573. Libel proceedings were brought against an education services officer
of the
US Government employed at a US military base in England.
The
SIA did not apply because
of
an exclusion
of
"proceedings relating to anything done by or in relation to
the
armed forces
of
a state while present in
the
United Kingdom" (section 16(2)) and
the
case was accordingly decided under
the
common law. Lord Millett, with whom Lord Cooke and Lord Hobhouse agreed, observed that Article 6 affords to everyone
the
right to a fair trial for
the
determination
of
his civil rights and obligations and continued (at p. 1588 C-F):
"At first sight this may appear to be inconsistent with a doctrine
of
comprehensive and unqualified state immunity in those cases where it is applicable. But in fact there is no inconsistency. This is not because
the
right guaranteed by article 6 is not absolute but subject to limitations, nor is it because
the
doctrine
of
state immunity serves a legitimate aim. It is because article 6 forbids a contracting state from denying individuals
the
benefit
of
its powers
of
adjudication; it does not extend
the
scope
of
those powers.
Article 6 requires contracting states to maintain fair and public judicial processes and forbids them to deny individuals access to those processes for
the
determination
of
their civil rights. It presupposes that
the
contracting states have
the
powers
of
adjudication necessary to resolve
the
issues in dispute. But it does not confer on contracting states adjudicative powers which they do not possess. State immunity, as I have explained, is a creature
of
customary international law and derives from
the
equality
of
sovereign states. It is not a self-imposed restriction on
the
jurisdiction
of
its courts which
the
United Kingdom has chosen to adopt. It is a limitation imposed from without upon
the
sovereignty
of the
United Kingdom itself.

The
immunity in question in
the
present case belongs to
the
United States.
The
United States has not waived its immunity. It is not a party to
the
Convention.
The
Convention derives its binding force from
the
consent
of the
contracting states.
The
United Kingdom cannot, by its own act
of
acceding to
the
Convention and without
the
consent
of the
United States, obtain a power
of
adjudication over
the
United States which international law denies it."
Lord Millett considered that where
the
extent
of the
jurisdiction
of
a state party to
the
ECHR is in question it must be determined first, "for if
the
state party has no jurisdiction to exercise, questions
of
legitimate aim and proportionality do not arise" (at p 1588G). In this regard he distinguished three cases then pending before
the
European Court
of
Human Rights, Fogarty v. United Kingdom, Al-Adsani v. United Kingdom and McElhinney v. Ireland and
the
United Kingdom, which at that time had been declared admissible, on
the
ground that in those cases
the
applicant was arguing that
the
immunity in question went further than international law requires (at p. 1588H). (See also Matthews v. Ministry
of
Defence [2003] 1 AC 1163 per Lord Millett at [103].)
- More recently,
the
reasoning
of
Lord Millett in Holland v. Lampen-Wolfe has been supported in
the
House
of
Lords in Jones v. Saudi Arabia [2007] 1 AC 270 by Lord Bingham (at [14]):
"First, [
the
claimants] must show that article 6
of the
Convention is engaged by
the
grant
of
immunity to
the
Kingdom on behalf
of
itself and
the
individual defendants. In this task they derive great help from Al-Adsani v United Kingdom (2001) 34 EHRR 273 where, in a narrowly split decision
of the
Grand Chamber, all judges
of the
European Court
of
Human Rights held article 6 to be engaged. I must confess to some difficulty in accepting this. Based on
the
old principle par in parem non habet imperium,
the
rule
of
international law is not that a state should not exercise over another state a jurisdiction which it has but that (save in cases recognised by international law) a state has no jurisdiction over another state. I do not understand how a state can be said to deny access to its court if it has no access to give. This was
the
opinion expressed by Lord Millett in Holland v Lampen-Wolfe [2000] 1 WLR 1573, 1588, and it seems to me persuasive. I shall, however, assume hereafter that article 6 is engaged, as
the
European Court held."
and Lord Hoffmann (at [64]):
"On
the
question
of
whether article 6 is engaged at all, I am inclined to agree with
the
view
of
Lord Millett in Holland v Lampen-Wolfe [2000] 1 WLR 1573, 1588 that there is not even a prima facie breach
of
article 6 if a state fails to make available a jurisdiction which it does not possess. State immunity is not, as Lord Millett said, a "self-imposed restriction on
the
jurisdiction
of
[
the
] courts" but a "limitation imposed from without". However, as
the
European Court
of
Human Rights in Al-Adsani 34 EHRR 273 proceeded on
the
assumption that article 6 was engaged and
the
rules
of
state immunity needed to be justified and as it makes no difference to
the
outcome, I will not insist on
the
point."
The
approach
of the
Strasbourg court is very different. In Al-Adsani v. United Kingdom (2002) 34 EHRR 11 proceedings before
the
English courts against
the
Sheikh and
the
government
of
Kuwait alleging torture in Kuwait had been held to be barred by state immunity.
The
claimant then brought proceedings in Strasbourg against
the
United Kingdom alleging an infringement
of
his Article 6 rights.
The
United Kingdom submitted that Article 6 was not engaged because it was required by international law to accord immunity in
the
circumstances
of
that case.
The
Grand Chamber did not address this submission in its judgment but proceeded on
the
basis that Article 6 was engaged (at [48]). It then evaluated
the
claim to immunity and
the
rule
of
international law contended for within
the
context
of
Article 6, in particular by reference to
the
concepts
of
legitimate aim and proportionality.
"53.
The
right
of
access to a court is not, however, absolute, but may be subject to limitations; these are permitted by implication since
the
right
of
access by its very nature calls for regulation by
the
State. In this respect,
the
Contracting States enjoy a certain margin
of
appreciation, although
the
final decision as to
the
observance
of the
Convention's requirements rests with
the
Court. It must be satisfied that
the
limitations applied do not restrict or reduce
the
access left to
the
individual in such a way or to such an extent that
the
very essence
of the
right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is no reasonable relationship
of
proportionality between
the
means employed and
the
aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999-I).
54.
The
Court must first examine whether
the
limitation pursued a legitimate aim. It notes in this connection that sovereign immunity is a concept
of
international law, developed out
of the
principle par in parem non habet imperium, by virtue
of
which one State shall not be subject to
the
jurisdiction
of
another State.
The
Court considers that
the
grant
of
sovereign immunity to a State in civil proceedings pursues
the
legitimate aim
of
complying with international law to promote comity and good relations between States through
the
respect
of
another State's sovereignty.
55.
The
Court must next assess whether
the
restriction was proportionate to
the
aim pursued. It reiterates that
the
Convention has to be interpreted in
the
light
of the
rules set out in
the
Vienna Convention on
the
Law
of
Treaties
of
23 May 1969, and that Article 31 § 3 (c)
of
that treaty indicates that account is to be taken
of
"any relevant rules
of
international law applicable in
the
relations between
the
parties".
The
Convention, including Article 6, cannot be interpreted in a vacuum.
The
Court must be mindful
of the
Convention's special character as a human rights treaty, and it must also take
the
relevant rules
of
international law into account (see, mutatis mutandis, Loizidou v. Turkey (merits), judgment
of
18 December 1996, Reports 1996-VI, p. 2231, § 43).
The
Convention should so far as possible be interpreted in harmony with other rules
of
international law
of
which it forms part, including those relating to
the
grant
of
State immunity.
56. It follows that measures taken by a High Contracting Party which reflect generally recognised rules
of
public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on
the
right
of
access to a court as embodied in Article 6 § 1. Just as
the
right
of
access to a court is an inherent part
of the
fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by
the
community
of
nations as part
of the
doctrine
of
State immunity."
This approach has been consistently followed by
the
Strasbourg court in a line
of
cases including Fogarty v. United Kingdom (2002) 34 EHRR 12 at [34] [36], McElhinney v. Ireland and United Kingdom (2002) EHRR 13, Cudak v. Lithuania (2010) 51 EHRR 15 at [54] [59], Sabeh El Leil v. France (2012) 54 EHRR 14 at [46] [54]; Application No. 156/04, Wallishauser v. Austria at [59] [60], Oleynikov v. Russia (2013) 57 EHRR 15 at [60] [61] and Jones v. United Kingdom (2014) 59 EHRR 1 at [186] [189].
- This court is, therefore, faced with conflicting authority.
The
decision
of the
House
of
Lords in Holland v. Lampen-Wolfe that Article 6 is not engaged where
the
grant
of
immunity is required by international law is binding on this court. However,
the
Strasbourg court has consistently held in a lengthy line
of
authority that Article 6 is engaged in these circumstances. We find
the
reasoning
of
Lord Millett in Holland v. Lampen-Wolfe compelling. It is difficult to see how Article 6 can be engaged if international law denies to
the
Contracting State jurisdiction over a dispute. There can be no denial
of
justice for which
the
State is responsible if there is, as a matter
of
international law, no court capable
of
exercising jurisdiction. Moreover, Article 6 cannot have been intended to confer on Contracting States a jurisdiction which they would not otherwise possess, nor could it have conferred a jurisdiction denied by general international law in such a way as to be binding on non-Contracting States. It is unfortunate that in none
of
its many decisions in which
the
point has arisen has
the
Strasbourg court grappled with these considerations. (
The
statement
of the
court in Fogarty (at [48]) that
the
grant
of
immunity does not qualify a substantive right but is a procedural bar on
the
national courts' power to determine
the
right, while correct as a matter
of
domestic law, does not meet
the
point. See also Jones v. Saudi Arabia at [164].) However, we consider that in
the
present case it is not necessary for us to choose between these competing approaches.
The
approach
of the
Strasbourg court would not result in a Contracting State being held to be in breach
of
Article 6 simply because it gave effect to a rule
of
international law requiring
the
grant
of
immunity. In any such case
the
grant
of
immunity would be held to be a proportionate means
of
achieving a legitimate aim. Under
the
Strasbourg jurisprudence, any debate as to what are
the
applicable rules
of
international law is transferred to a later stage
of the
analysis and addressed in
the
context
of
Article 6. Moreover, before us Mr. Toby Landau QC, who appeared on behalf
of
Libya, while maintaining that
the
approach in Holland v. Lampen Wolfe is correct in principle and binding on this court, did not seek to dissuade us from addressing
the
issues
of
international law in
the
context
of
Article 6.
The
Strasbourg jurisprudence identifies
the
legitimate aim as compliance with international law. In
the
passage from
the
judgment in Al-Adsani cited above
the
court described it as "
the
legitimate aim
of
complying with international law to promote comity and good relations between States through
the
respect
of
another State's sovereignty" (at [54]).
The
legitimate aim is described in identical terms in Fogarty v. United Kingdom at [34], Cudak v. Lithuania at [60], Sabeh El Leil v. France at [52], Wallishauser v. Austria at [64], Oleynikov v. Russia at [60] and Jones v. Saudi Arabia at [188].
The
approach
of the
Strasbourg court to proportionality in this context appears from its judgment in Al-Adsani at [55] [56] which is cited above.
The
statement that "measures taken by a High Contracting Party which reflect generally recognised rules
of
public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on
the
right
of
access to court as embodied in Article 6(1)" is repeated in
the
more specific context
of embassy
employment disputes in Fogarty at [36], in Cudak at [57], in Sabeh El Leil at [49] and in Wallishauser at [59].
The
observations
of the
Strasbourg court in Jones v. United Kingdom in relation to proportionality were
the
focus
of
a great deal
of
argument during
the
submissions before us. At [189]
the
court repeated
the
proposition that measures which reflect generally recognised rules
of
public international law on state immunity cannot in principle be regarded as imposing a disproportionate restriction on
the
right
of
access to court. However, in
the
following section
of the
judgment, under
the
heading "Application
of the
principles in previous state immunity cases"
the
court said this:
"190.
The
Court has examined compliance with
the
right
of
access to a court enshrined in Article 6 § 1 in
the
context
of the
grant
of
State immunity in a number
of
different civil claims, including disputes concerning: employment at embassies (Fogarty, Cudak and Sabeh El Leil, all cited above); personal injury incurred in
the
forum State (McElhinney, cited above); personal injury incurred as a result
of
torture abroad (Al-Adsani, cited above); crimes against humanity carried out in wartime (Kalogeropoulou and Others, cited above); service
of
process (Wallishauser, cited above); and complaints
of
an allegedly private-law nature (Oleynikov v. Russia, no. 36703/04, 14 March 2013). Each
of
these cases concerned
the
extent to which
the
former absolute notion
of
State immunity had given way to a more restrictive form
of
immunity. In particular,
the
Court examined whether
the
respondent State's actions "[fell] outside any currently accepted international standards" (Fogarty, cited above, § 37; and McElhinney, cited above, § 38); were "inconsistent with [
the
] limitations generally accepted by
the
community
of
nations as part
of the
doctrine
of
State immunity" (Al-Adsani, cited above, § 66; and, by implication, Kalogeropoulou and Others, cited above); or were potentially contrary to an exception to State immunity established by a rule
of
customary international law that applied (Cudak, cited above, § 67; Sabeh El Leil, cited above, § 58; Wallishauser, cited above, § 69; and Oleynikov, cited above, § 68)."
- On behalf
of
Libya Mr. Landau submitted that this passage and, in particular,
the
different formulations set out at [190] introduce a measure
of
flexibility into
the
test
of
proportionality. However, it seems to us that although it may be formulated in different ways we are concerned here with essentially one test which is whether
the
grant
of
immunity is required by international law. In our view this follows from
the
fact that
the
legitimate aim at which these means are directed is compliance with international law. Despite
the
different formulations, it seems to us that if a state adopts a rule restricting access to
the
court which it is not required by international law to adopt, there is a violation
of
Article 6 ECHR unless
the
rule otherwise meets
the
requirements for a limitation on that right. In this regard we also note that
the
formulation in [189] appears in a section headed "(a) General principles on access to a court in
the
context
of
state immunity" whereas
the
passage at [190] appears under
the
heading "(b) Application
of the
principles in previous state immunity cases". We do not read these formulations as intended to detract in any way from
the
statement
of
principle at [189] (which is repeated at [196] and [201]) and which had also appeared consistently in
the
earlier cases.
- Nevertheless, this does not mean that
the
application
of the
proportionality test is totally inflexible. In Holland v. Lampen-Wolfe
the
House
of
Lords was firmly
of the
view that international law required
the
grant
of
immunity in
the
circumstances
of
that case. However,
the
position will not always be that clear.
The
precise scope
of
immunities required by international law is often
the
subject
of
great uncertainty and
the
boundary lines between immunity and non-immunity will often be difficult to draw.
The
distinction between sovereign acts and non-sovereign acts is easy to state but notoriously difficult to apply in practice. Moreover, as Judge Higgins, Judge Kooijmans and Judge Buergenthal observed in their Separate Opinion in Case concerning
the
Arrest Warrant
of
11 April 2000, Democratic
Republic of the
Congo v. Belgium (International Court
of
Justice, 14 February 2002; ICJ Reports 2002, p. 3, at [72]),
the
meaning
of the
concepts
of
acta jure imperii and acta jure gestionis is not carved in stone; it is subject to a continuously changing interpretation which varies with time reflecting
the
changing priorities
of
society. In some areas it is unclear to what extent immunities have been eroded. (See, for example,
the
observations
of the
Strasbourg court in McElhinney v. Ireland and
the
United Kingdom at [38], a case concerning
the
conduct
of
a foreign state within
the
forum state resulting in personal injury.) Nowhere is this difficulty more apparent than in
the
field
of embassy
employment disputes with which we are concerned in
the
present cases. Here, as we shall see, state practice and
the
decisions
of
national courts reveal a variety
of
different approaches and a diversity
of
views. Accordingly, while there will be many cases in which
the
answer to
the
question whether there exists an obligation in international law to grant immunity will be clear, there will be many others where
the
issue will not be free from doubt. In
the
latter category
of
cases it is not
the
function
of the
Strasbourg court to make definitive rulings as to
the
position in international law. In this regard we would draw attention to
the
concurring judgment
of
Judge Pellonpaa, joined by Judge Bratza, in Al-Adsani where they observed that "when having to touch upon central questions
of
general international law, this Court should be very cautious before taking upon itself
the
role
of
a forerunner" (at [O-II9]). It is for these reasons that it is necessary to accord to states which are parties to ECHR a margin
of
appreciation in determining what are their obligations under international law.
- This is reflected in
the
approach
of the
Strasbourg court to proportionality in Fogarty:
"37.
The
Court observes that, on
the
material before it (see paragraphs 16-20, 29 and 31 above), there appears to be a trend in international and comparative law towards limiting State immunity in respect
of
employment-related disputes. However, where
the
proceedings relate to employment in a foreign mission or
embassy
, international practice is divided on
the
question whether State immunity continues to apply and, if it does so apply, whether it covers disputes relating to
the
contracts
of
all staff or only more senior members
of the
mission. Certainly, it cannot be said that
the
United Kingdom is alone in holding that immunity attaches to suits by employees at diplomatic missions or that, in affording such immunity,
the
United Kingdom falls outside any currently accepted international standards.
38.
The
Court further observes that
the
proceedings which
the
applicant wished to bring did not concern
the
contractual rights
of
a current
embassy
employee, but instead related to alleged discrimination in
the
recruitment process. Questions relating to
the
recruitment
of
staff to missions and embassies may by their very nature involve sensitive and confidential issues, related, inter alia, to
the
diplomatic and organisational policy
of
a foreign State.
The
Court is not aware
of
any trend in international law towards a relaxation
of the
rule
of
State immunity as regards issues
of
recruitment to foreign missions. In this respect,
the
Court notes that it appears clearly from
the
materials referred to above (see paragraph 19) that
the
International Law Commission did not intend to exclude
the
application
of
State immunity where
the
subject
of
proceedings was recruitment, including recruitment to a diplomatic mission.
39. In these circumstances,
the
Court considers that, in conferring immunity on
the
United States in
the
present case by virtue
of the
provisions
of the
1978 Act,
the
United Kingdom cannot be said to have exceeded
the
margin
of
appreciation allowed to States in limiting an individual's access to court."
- This approach was also apparent in
the
submission on behalf
of the
United Kingdom in Jones v. United Kingdom (see
the
judgment at [174]) that there is a margin
of
appreciation as regards access to court, which permits states to act on their own views as to
the
extent
of
their obligations under public international law, provided that they are reasonably tenable views. Although
the
Strasbourg court did not expressly rule on this submission, it reiterated its previous statements that states enjoy a margin
of
appreciation in relation to limiting access to courts (at [186]) and concluded that, in
the
circumstances
of
that case (which were far removed from
embassy
employment disputes)
the
grant
of
immunity was a proportionate means
of
achieving a legitimate aim.
B.
The
application
of
Article 6 to
embassy
employment disputes.
The
extract from
the
Fogarty judgment set out at [22] above shows
the
court granting a wide margin
of
appreciation to
the
forum state in view
of the
state
of
international law in relation to
embassy
employment disputes.
The
court considered that while there was a trend towards limiting state immunity in respect
of
employment disputes, international practice was divided on whether immunity survived in relation to
embassy
employment disputes and, if so, whether it covered disputes relating to
the
employment
of
staff at all levels.
The
court also pointed out that it was not aware
of
any trend towards
the
relaxation
of
immunity as regards issues
of
recruitment to foreign missions which arose on
the
facts
of
that case. (See [37], [38].)
The
grant
of
immunity to
the
United States was held, in that case, not to infringe Article 6.
- In later cases
the
Strasbourg court has gone considerably further in its analysis
of
international law in relation to
embassy
employment disputes and has taken a rather different view
of the
scope
of the
immunity. In Cudak v. Lithuania
the
applicant had been hired as a secretary and switchboard operator by
the Embassy of
Poland in Vilnius. She made a complaint to
the
Ombudsman in Lithuania who found that she had been sexually harassed by a colleague at work. She then went on sick leave and on her return was told that she had been dismissed for failure to come to work. She brought an action for unfair dismissal before
the
civil courts which declined jurisdiction on grounds
of
state immunity which had been invoked by Poland.
The
Lithuanian Supreme Court held that
the
applicant had exercised a public service function during her employment and that her duties facilitated
the
exercise by Poland
of
its sovereign functions with
the
result that
the
doctrine
of
sovereign immunity applied. She then brought proceedings in Strasbourg against Lithuania alleging a breach
of
her Article 6 rights.
- A Grand Chamber
of the
Strasbourg court held that
the
case could be distinguished from Fogarty in that it did not concern recruitment but rather
the
dismissal
of
a member
of the
local staff
of
an
embassy
. Nevertheless,
the
court still took
the
view that
the
restrictions on access to courts pursued a legitimate aim. However, it concluded that
the
restriction on
the
applicant's right
of
access was not proportionate to
the
aim pursued. That conclusion depended heavily on
the
following reasoning:
"63.
The
Court found, already in
the
Fogarty judgment, that there was a trend in international and comparative law towards limiting State immunity in respect
of
employment-related disputes, with
the
exception, however,
of
those concerning
the
recruitment
of
staff in embassies (§§ 37-38).
64. In this connection,
the
Court notes that
the
application
of
absolute State immunity has, for many years, clearly been eroded. In 1979
the
International Law Commission (ILC) was given
the
task
of
codifying and gradually developing international law in
the
area
of
jurisdictional immunities
of
States and their property. It produced a number
of
drafts that were submitted to States for comment.
The
Draft Articles it adopted in 1991 included one Article 11 on contracts
of
employment (see paragraph 28 above). In 2004
the
United Nations General Assembly adopted
the
Convention on Jurisdictional Immunities
of
States and their Property (see paragraph 30 above).
65.
The
1991 Draft Articles, on which
the
2004 United Nations Convention (and Article 11 in particular) was based, created a significant exception in matters
of
State immunity by, in principle, removing from
the
application
of the
immunity rule a State's employment contracts with
the
staff
of
its diplomatic missions abroad. However, that exception was itself subject to exceptions whereby, in substance, immunity still applied to diplomatic and consular staff in cases where:
the
subject
of the
dispute was
the
recruitment, renewal
of
employment or reinstatement
of
an individual;
the
employee was a national
of the
employer State; or, lastly,
the
employer State and
the
employee had otherwise agreed in writing.
66.
The
report appended to
the
1991 Draft Articles stated that
the
rules formulated in Article 11 appeared to be consistent with
the
emerging trend in
the
legislative and treaty practice
of
a growing number
of
States (ILC Yearbook, 1991, Vol. II, Part 2, p. 44, paragraph 14). This must also hold true for
the
2004 United Nations Convention. Furthermore, it is a well-established principle
of
international law that, even if a State has not ratified a treaty, it may be bound by one
of
its provisions in so far as that provision reflects customary international law, either "codifying" it or forming a new customary rule (see
the
judgment
of the
International Court
of
Justice in
the
North Sea Continental Shelf cases, ICJ Reports 1969, p. 41, § 71). Moreover, there were no particular objections by States to
the
wording
of
Article 11
of the
ILC's Draft Articles, at least not by
the
respondent State. As to
the
2004 United Nations Convention, Lithuania has admittedly not ratified it but did not vote against its adoption either.
67. Consequently, it is possible to affirm that Article 11
of the
ILC's 1991 Draft Articles, on which
the
2004 United Nations Convention was based, applies to
the
respondent State under customary international law.
The
Court must take this into consideration in examining whether
the
right
of
access to a court, within
the
meaning
of
Article 6 § 1, was respected."
- Similar but not identical reasoning appears in
the
judgment
of the
Grand Chamber in Sabeh El Leil:
"53. In addition,
the
impugned restriction must also be proportionate to
the
aim pursued. In this connection,
the
Court observes that
the
application
of
absolute State immunity has, for many years, clearly been eroded, in particular with
the
adoption
of the
Convention on Jurisdictional Immunities
of
States and their Property by
the
United Nations General Assembly in 2004 (see Cudak, cited above, § 64). This convention is based on Draft Articles adopted in 1991,
of
which Article 11 concerned contracts
of
employment and created a significant exception in matters
of
State immunity,
the
principle being that
the
immunity rule does not apply to a State's employment contracts with
the
staff
of
its diplomatic missions abroad, except in
the
situations that are exhaustively enumerated in paragraph 2
of
Article 11 (ibid., § 65).
54. Furthermore, it is a well-established principle
of
international law that a treaty provision may, in addition to
the
obligations it creates for
the
Contracting Parties, also be binding on States that have not ratified it in so far as that provision reflects customary international law, either "codifying" it or forming a new customary rule (ibid., § 66). Consequently, Article 11
of the
International Law Commission's 1991 Draft Articles, as now enshrined in
the
2004 Convention, applies under customary international law, even if
the
State in question has not ratified that convention, provided it has not opposed it either (ibid., §§ 66-67)."
The
court considered that
the
restrictions on
the
right
of
access to court pursued a legitimate aim. Turning to proportionality, it came to
the
following conclusions, on
the
basis
of
Cudak:
"57. As
the
Court has pointed out (see paragraph 54 above), Article 11
of the
International Law Commission's 1991 Draft Articles, as now enshrined in
the
2004 Convention, applies under customary international law, even if
the
State in question has not ratified that convention, provided it has not opposed it either (see Cudak, cited above, §§ 66-67). For its part, France has not ratified it but has not opposed it: on
the
contrary, it signed
the
convention on 17 January 2007 and
the
ratification procedure is currently pending before
the
French Parliament (see paragraph 22 above).
58. Consequently, it is possible to affirm that
the
provisions
of the
2004 Convention apply to
the
respondent State, under customary international law (see Cudak, cited above, § 67), and
the
Court must take this into consideration in examining whether
the
right
of
access to a court, within
the
meaning
of
Article 6 § 1, was respected."
- Similar reasoning was subsequently employed by
the
court in Wallishauser (at [59], [60]) and Oleynikov (at [66][68]).
- Mr. Landau, on behalf
of
Libya, has been very critical
of
this reasoning and it seems to us that some
of
this criticism is justified.
(1) A treaty cannot create either obligations or rights which are binding on states which are not parties to it without their consent. (Vienna Convention on
the
Law
of
Treaties, 1969, Article 34.) None
of the
states concerned in these proceedings is a party to
the
UN Convention on Jurisdictional Immunities
of
States and their Property, 2004 ("
the
UN Convention").
(2)
The
UN Convention requires 30 ratifications, acceptances, approvals or accessions before it will enter into force. To date
the
Convention has been ratified by only 16 states.
(3) Rules contained in treaties may, however, bind non-parties if they embody existing rules
of
customary international law or if they subsequently attain that status. It is likely that many
of the
rules in
the
UN Convention reflect customary international law. However, as we shall see, that is not necessarily true
of
all its provisions. In particular, while it is clear that customary international law no longer requires immunity in all proceedings relating to employment contracts, state practice in relation to
embassy
employment disputes is so diverse that it is far from clear that Article 11
of the
UN Convention is a definitive statement
of the
limits
of
immunity required by customary international law in such circumstances.
(4)
The
court's analysis fails to take account
of
important differences between
the
text
of the
International Law Commission ("ILC") Draft Articles and that
of the
UN Convention. They cannot both represent
the
current state
of
customary international law.
(5) Neither
the
failure
of
a state to object to
the
adoption
of the
ILC Draft Articles or to vote against
the
adoption
of the
UN Convention by
the
General Assembly is capable, without more,
of
binding
the
state concerned to
the
content
of the
instrument in question.
- In these circumstances, it is questionable whether Article 11
of the
ILC Draft Articles (Cudak at [67], Wallishauser at [69]) or Article 11
of the
UN Convention (Sabeh El Leil at [58]; Oleynikov at [66]) can be taken to be a definitive statement
of the
extent
of
state immunity required by international law in
embassy
employment disputes. However, this is not
the
end
of the
matter by any means. In our view it is necessary to consider whether
the
immunity
of the
respondent states in
the
present cases by virtue
of
sections 4 and 16(1)(a) SIA is required by international law or, at least, lies within
the
margin
of
appreciation accorded to states to determine
the
extent
of
their obligations under international law.
C. Section 16(1)(a)
- Section 16(1)(a) SIA provides that section 4 does not apply to proceedings concerning
the
employment
of the
members
of
a mission within
the
meaning
of the
VCDR. We have seen that "members
of the
mission" as defined in that Convention includes members
of the
diplomatic staff,
the
administrative and technical staff and
the
service staff
of the
mission.
The
last category comprises
the
members
of the
staff
of the
mission in
the
domestic service
of the
mission.
The
effect
of the
exclusion
of
proceedings concerning
the
employment
of the
members
of
a mission from section 4 is that
the
exception to immunity created by that section does not apply to such cases and a state is immune by virtue
of
section 1(1).
The
effect
of
section 16(1)(a) is, therefore, to grant immunity in all cases concerning
embassy
or consular employment disputes. It is a blanket provision.
1. Sengupta v.
Republic of
India
- Before turning to consider whether a rule
of
such breadth is required by international law, it is convenient to refer to
the
decision
of the
Employment Appeal Tribunal in Sengupta v.
Republic of
India [1983] ICR 221, a case decided on
the
common law in force before
the
commencement
of the
SIA. There
the
applicant, an Indian national, was employed as a clerk at
the
Indian High Commission in London. Following his dismissal he brought proceedings before an industrial tribunal for unfair dismissal which were held to be barred by state immunity. On appeal, Browne-Wilkinson J., delivering
the
judgment
of the
Employment Appeal Tribunal dismissing
the
appeal, observed:
"In our judgment, in seeking to decide whether
the
claim in this case is excluded by
the
doctrine
of
sovereign immunity, we must ask
the
following questions: (a) Was
the
contract
of
a kind which a private individual could enter into? (b) Did
the
performance
of the
contract involve
the
participation
of
both parties in
the
public functions
of the
foreign state, or was it purely collateral to such functions? (c) What was
the
nature
of the
breach
of
contract or other act
of the
sovereign state giving rise to
the
proceedings? (d) Will
the
investigation
of the
claim by
the
tribunal involve an investigation into
the
public or sovereign acts
of the
foreign state?
If we have asked ourselves
the
right questions, then in our judgment
the
necessary result must be that there is no jurisdiction to entertain
the
applicant's claim. It is true that any private individual can employ another, i.e. can enter into a contract
of
employment. Therefore in that sense
the
entry into a contract
of
employment is a private act. But when one looks to see what is involved in
the
performance
of the
applicant's contract, it is clear that
the
performance
of the
contract is part
of the
discharge by
the
foreign state
of
its sovereign functions in which
the
applicant himself, at however lowly a level, is under
the
terms
of
his contract
of
employment necessarily engaged. One
of the
classic forms
of
sovereign acts by a foreign state is
the
representation
of
that state in a receiving state. From
the
doctrine
of
sovereign immunity were derived
the
concepts that
the embassy
premises were part
of the
soil
of the
foreign sovereign state and that diplomatic staff are personally immune from local jurisdiction. A contract to work at a diplomatic mission in
the
work
of
that mission is a contract to participate in
the
public acts
of the
foreign sovereign.
The
dismissal
of the
applicant was an act done in pursuance
of
that public function, i.e.
the
running
of the
mission. As a consequence,
the
fairness
of
any dismissal from such employment is very likely to involve an investigation by
the
industrial tribunal into
the
internal management
of the
diplomatic representation in
the
United Kingdom
of the Republic of
India, an investigation wholly inconsistent with
the
dignity
of the
foreign state and an interference with its sovereign functions.
We therefore conclude that, in general, there is no jurisdiction to entertain a claim for unfair dismissal from employment by, and in, a diplomatic mission." (at pp. 228D 229B)
The
respondents to this appeal rely on this passage as supporting their case that section 16(1)(a) reflects a requirement
of
international law. However, it is to be noted that
the
Employment Appeal Tribunal (at p. 229 C-D) expressly left open
the
question whether, apart from
the
SIA, employees who are solely concerned with providing
the
physical environment in which
the
diplomatic mission operates might be able to claim.
The
tribunal distinguished such a case from that
of
a claim by a person engaged in carrying out
the
work
of the
mission in however humble a role. It is possible therefore that, in this respect, section 16(1)(a) which excludes jurisdiction in cases brought by service staff
of the
mission may have extended
the
scope
of
immunity beyond that at common law.
2. Is a rule
of the
breadth
of
section 16(1)(a) SIA required by international law?
(1) International Conventions
(a) European Convention on State Immunity, 1972.
- Prof. Sarooshi on behalf
of
Libya draws attention to
the
provisions
of the
European Convention on State Immunity, 1972 ("ECSI") corresponding to provisions in
the
SIA. ECSI is a Council
of
Europe treaty adopted by
the
contracting states, in
the
light
of the
tendency in international law to restrict state immunity, in order to establish in their mutual relations common rules relating to
the
scope
of
state immunity and
the
enforcement
of
judgments against a state.
The
ECSI, which entered into force in 1976, has eight parties (Austria, Belgium, Cyprus, Germany, Luxembourg,
the
Netherlands, Switzerland and
the
United Kingdom). It provides in relevant part:
"Article 5
1. A Contracting State cannot claim immunity from
the
jurisdiction
of
a court
of
another Contracting State if
the
proceedings relate to a contract
of
employment between
the
State and an individual where
the
work has to be performed on
the
territory
of the
State
of the
forum.
2. Paragraph 1 shall not apply where:
(a)
the
individual is a national
of the
employing State at
the
time when
the
proceedings are brought;
(b) at
the
time when
the
contract was entered into
the
individual was neither a national
of the
State
of the
forum nor habitually resident in that State; or
(c)
the
parties to
the
contract have otherwise agreed in writing, unless, in accordance with
the
law
of the
State
of the
forum,
the
courts
of
that State have exclusive jurisdiction by reason
of the
subject-matter.
3. Where
the
work is done for an office, agency or other establishment referred to in Article 7, paragraphs 2.a and b
of the
present article apply only if, at
the
time
the
contract was entered into,
the
individual had his habitual residence in
the
Contracting State which employs him.
Article 15
A Contracting State shall be entitled to immunity from
the
jurisdiction
of the
courts
of
another Contracting State if
the
proceedings do not fall within Articles 1 to 14;
the
court shall decline to entertain such proceedings even if
the
State does not appear.
Article 32
Nothing in
the
present Convention shall affect privileges and immunities relating to
the
exercise
of the
functions
of
diplomatic missions and consular posts and
of
persons connected with them."
- Prof. Sarooshi, on behalf
of
Libya, draws attention, in particular, to Article 32 which he says is implemented by section 16(1)(a). In enacting
the
SIA Parliament was undoubtedly seeking, in part, to ensure that domestic law conformed with
the
obligations it had assumed under ECSI. However, Article 32 ECSI is not
the
exact counterpart
of
section 16(1)(a) which, in its reference to proceedings concerning
the
employment
of the
members
of
a mission, extends further. Moreover, whereas
the
effect
of
section 16(1)(a) is to withdraw proceedings concerning
the
employment
of the
members
of
a mission from
the
scope
of the
exception to immunity created by section 4, with
the
result that
the
state concerned enjoys immunity,
the
effect
of
Article 32 is to withdraw matters concerning privileges and immunities relating to
the
exercise
of the
functions
of
diplomatic missions and consular posts and
of
persons connected with them from
the
scope
of the
ECSI altogether. As a result
the
Contracting States are not required to apply
the
rules set out in
the
ECSI to disputes raising such issues.
The
provisions
of
ECSI do not require a provision
of the
breadth
of
section 16(1)(a). Furthermore, we have been referred by
the
parties to decisions
of the
courts
of
contracting states to
the
ECSI in which immunity was denied in claims by staff
of
a mission against their employer. (See, for example, Seidenschmidt v. USA (1992) 116 ILR 530 (Austria); Rousseau v.
Republic of
Upper Volta (1983) 82 ILR 118 (Belgium); Mahamdia v. Algeria, 14 January 2009 (Germany); MK v. Turkey (1985) 94 ILR 350 (
The
Netherlands); Landano v. USA (1987) 116 ILR 636; M v. Arab
Republic of
Egypt, 16 November 1994, 116 ILR 656 (Switzerland).) While these claims were brought against states which are not parties to ECSI, these decisions are inconsistent with
the
view that international law requires immunity in all employment claims by
the
service staff
of
a mission.
(b) Vienna Convention on Diplomatic Relations, 1961.
The
Secretary
of
State for Foreign and Commonwealth Affairs ("
the
Secretary
of
State") draws attention to Article 7 VCDR which provides that, subject to certain exceptions, "
the
sending State may freely appoint
the
members
of the
staff
of the
mission". This extends to all
the
staff
of the
mission including service staff. This is not one
of the
provisions
of
that convention which is given force in
the
law
of the
United Kingdom by
the
Diplomatic Privileges Act 1964 but it is binding on
the
United Kingdom in international law.
The
Secretary
of
State submits that
the
SIA was intended to maintain consistency with
the
United Kingdom's obligations in international law and that consistency with Article 7 VCDR is achieved by section 16(1)(a). It is submitted that there is widespread support in
the
practice
of
states for
the
view that disputes relating to
the
appointment
of
staff
of
a mission should attract immunity. Thus, for example
the
UN Convention provides that there will be immunity where
the
subject matter
of the
proceedings is
the
recruitment, renewal
of
employment or reinstatement
of
an individual (Article 11(2)(c)). Similarly in Fogarty
the
Strasbourg court observed that questions relating to
the
recruitment
of
staff to missions may by their very nature involve sensitive and confidential issues related, inter alia, to
the
diplomatic and organisational policy
of
a foreign State. It stated that it was not aware
of
any trend in international law toward a relaxation
of
immunity as regards such issues.
The
difficulty with
the
Secretary
of
State's argument, however, is that
the
effect
of
section 16(1)(a) is far wider than to preserve immunity in cases concerning appointment
of
staff
of the
mission. Moreover,
the
claims which are barred by section 16(1)(a) in
the
present case are not concerned with
the
appointment
of
staff.
(c) UN Convention on Jurisdictional Immunities
of
States and their Property, 2004
The
work
of the
ILC on state immunity, which was undertaken with
the
agreement
of the
United Nations, resulted in 1991 in
the
production by
the
ILC
of
Draft Articles on Jurisdictional Immunities
of
States and their Property.
The
Draft Articles, as subsequently amended by a Working Group and an Ad Hoc Committee
of the
Sixth Committee
of the
UN General Assembly, were incorporated into
the
Draft UN Convention which was adopted by
the
General Assembly in 2004. It has to date received 16 ratifications. It requires 30 ratifications before it can enter into force. In Jones v. Saudi Arabia Lord Bingham (at [9]) cited with approval
the
observation
of
Aikens J. in AIG Capital Partners Inc. v.
Republic of
Kazakhstan [2006] 1 WLR 1420 at [80] that "its existence and adoption by
the
UN after
the
long and careful work
of the
International Law Commission and
the
UN Ad Hoc Committee, powerfully demonstrates international thinking on
the
point". As Fox and Webb observe (
The
Law
of
State Immunity, 3rd Ed., (2013), p. 284), it constitutes "a significant stage in
the
harmonization and articulation
of the
international law
of
state immunity". While it is likely that many
of
its provisions reflect
the
position in customary international law it cannot be assumed that this is true
of
all
of
them. (See O'Keefe, and Tams (eds),
The
United Nations Convention on Jurisdictional Immunities
of
States and Their Property: A Commentary, at pp. xli xlii.) It is, therefore, necessary to examine each
of
its provisions with care in order to establish whether it satisfies
the
stringent requirements to be considered customary law. Thus, for example, this court has recently held in Belhaj v. Straw [2014] EWCA Civ 1394 (at [47]) that
the
provisions
of the
UN Convention in relation to indirect impleader in state immunity extend beyond
the
requirements
of
customary international law.
- Article 11
of the
UN Convention provides:
"Article 11
Contracts
of
employment
1. Unless otherwise agreed between
the
States concerned, a State cannot invoke immunity from jurisdiction before a court
of
another State which is otherwise competent in a proceeding which relates to a contract
of
employment between
the
State and an individual for work performed or to be performed, in whole or in part, in
the
territory
of
that other State.
2. Paragraph 1 does not apply if:
(a)
the
employee has been recruited to perform particular functions in
the
exercise
of
governmental authority;
(b)
the
employee is:
(i) a diplomatic agent, as defined in
the
Vienna Convention on
Diplomatic Relations
of
1961;
(ii) a consular officer, as defined in
the
Vienna Convention on
Consular Relations
of
1963;
(iii) a member
of the
diplomatic staff
of
a permanent mission to an international organization or
of
a special mission, or is recruited to represent a State at an international conference; or
(iv) any other person enjoying diplomatic immunity;
(c)
the
subject-matter
of the
proceeding is
the
recruitment, renewal
of
employment or reinstatement
of
an individual;
(d)
the
subject-matter
of the
proceeding is
the
dismissal or termination
of
employment
of
an individual and, as determined by
the
head
of
State,
the
head
of
Government or
the
Minister for Foreign Affairs
of the
employer State, such a proceeding would interfere with
the
security interests
of
that State;
(e)
the
employee is a national
of the
employer State at
the
time when
the
proceeding is instituted, unless this person has
the
permanent residence in
the
State
of the
forum; or
(f)
the
employer State and
the
employee have otherwise agreed in writing, subject to any considerations
of
public policy conferring on
the
courts
of the
State
of the
forum exclusive jurisdiction by reason
of the
subject-matter
of the
proceeding."
- At first sight it might appear that Article 11(2)(b)(iv) would grant immunity in respect
of the
present proceedings. Under VCDR
the
immunity
of
members
of the
mission varies according to
the
category
of
member. Thus, under Article 37(3) VCDR members
of the
service staff
of
a mission who are not nationals
of
or permanently resident in
the
receiving State enjoy immunity in respect
of
acts performed in
the
course
of
their duties. A literal reading
of
Article 11(2)(b)(iv) UN Convention would therefore take such qualifying members
of the
service staff outside
the
exception to immunity established by Article 11(1). However, on
the
face
of the
Article there would seem to be little purpose in making special provision in sub-paragraph (i) for a diplomatic agent if he would also fall within
the
class to which sub-paragraph (iv) applies. As Foakes and O'Keefe point out (O'Keefe and Tams at pp. 191, 201-2) any reading
of
Article 11(2)(b)(iv) which encompassed
the
administrative and technical staff and
the
service staff
of
a diplomatic mission would run plainly contrary to
the
rationale for
the
restrictive wording
of
Article 11(2)(b)(i). Furthermore, consideration
of the
travaux preparatoires demonstrates that it was not intended to require immunity in respect
of
employment claims by all members
of
a mission. Foakes and O'Keefe explain (at p. 201) that in 2002, when
the
Ad Hoc Committee was confronted with
the
choice
of
including in what became Article 11(2)(b)(i) either all
the
members
of
a diplomatic mission or only those qualifying as diplomatic agents, they opted unequivocally for
the
second, narrower alternative, in order to keep to a minimum
the
range
of
proceedings in which a state would remain immune. A literal reading
of
Article 11(2)(b)(iv) would defeat that intention. It may be that, as Foakes and O'Keefe suggest on
the
basis
of the
ILC Draft Articles,
the
intention was, rather, to limit this residual category
of
employees to miscellaneous persons
of
diplomatic status not already mentioned in Article 11(2)(b). (O'Keefe and Tams at pp. 201-2. See, also, Fox and Webb at p. 450.) In any event, we have come to
the
clear conclusion that Article 11 does not require
the
grant
of
immunity in cases where
the
employee is a member
of the
service staff
of
a mission, such a reading being contrary to
the
scheme and intention
of the
provision.
- Mr. Landau, on behalf
of
Libya, also relies on Article 3(1) UN Convention in support
of
his submission that customary international law requires
the
grant
of
immunity in
the
circumstances
of the
present claims. It provides in relevant part:
"Article 3
Privileges and immunities not affected by
the
present Convention
1.
The
present Convention is without prejudice to
the
privileges and immunities enjoyed by a State under international law in relation to
the
exercise
of the
functions
of
(a) its diplomatic missions, consular posts, special missions, missions to international organizations or delegations to organ
of
international organizations or to international conferences; and
(b) persons connected with them."
He places particular reliance on
the
reference to "persons connected with them" and submits that this corresponds to section 16(1)(a) SIA. There is, as Fox and Webb point out (at pp. 449-450), a contradiction between Article 3(1) and Article 11. However, there can be no doubt that Article 11 is intended to make detailed provision for
the
scope
of
immunity in
embassy
employment disputes. Moreover, Article 3 provides no support for
the
view that
the
effect
of
section 16(1)(a) in preserving immunity in respect
of
all such disputes is required by international law.
- Finally in this regard, Mr. Landau also relies on an understanding with respect to Article 11 which appeared in
the
2003 report
of the
Ad Hoc Committee. It included
the
following statement:
"
[U]nder article 38
of the
1961 Vienna Convention on Diplomatic Relations and article 71
of the
1963 Vienna Convention on Consular Relations,
the
receiving State has a duty to exercise its jurisdiction in such a manner as not to interfere unduly with
the
performance
of the
functions
of the
mission or
the
consular post."
Foakes and O'Keefe suggest (at p. 195) that this passage is closely connected to
the
inclusion
of
Article 11(2)(b) in its final form and that it was adopted by way
of
consolation to those States which opposed any inroad into
the
immunity
of
a foreign employer State from proceedings relating to
the
employment
of
members
of the
staff
of
its diplomatic missions. While that may well be
the
explanation
of
how
the
understanding was adopted, it is difficult to see how it could qualify
the
operation
of
Article 11 which makes clear that, save in certain specified situations, there is no obligation to grant immunity from claims by members
of the
service staff. There is nothing here to support
the
view that there is a duty to grant immunity in
the
circumstances
of the
present cases.
(2) State practice.
- States have addressed questions
of
state immunity in
the
context
of
employment disputes in diverse ways. Fox and Webb (at pp. 439-41) identify three broad approaches. Model 1 treats employment contracts within
the
general exception from immunity in respect
of
commercial or private law transactions. Model 2 identifies special categories
of
employees and subjects them to a special regime
of
immunity. Model 3 makes an exception from immunity for employment contracts which is additional to
the
exception to immunity for commercial or private law transactions. Professor Richard Garnett ((1997) 46 ICLQ 81) identifies four broad approaches in distinguishing between sovereign and non-sovereign acts in
the
employment context.
The
first has regard to
the
context or location
of the
employment.
The
second has regard to
the
status
of the
employee, limiting immunity to cases concerning senior employees as they are closer to
the
sovereign functions
of the
state.
The
third has regard to
the
territorial nexus between
the
forum state and (i)
the
employee and (ii)
the
employment contract.
The
fourth has regard to
the
nature
of the
claim, distinguishing between purely economic claims and those which have more potential to require investigations into sovereign activities. In Case C-154/11 Mahamdia v. People's Democratic
Republic of
Algeria, [2013] ICR 1 this diversity
of
approach led Advocate General Mengozzi to observe (at [23]):
"Returning to
the
State as an employer, national approaches are very varied and national courts sometimes give preference to
the
nature
of the
functions performed, sometimes
the
purpose
of
those functions and sometimes
the
nature
of the
contract. In some cases these criteria have to be satisfied cumulatively for immunity to be waived. Furthermore,
the
issue
of
immunity may be seen differently depending on whether
the
dispute concerns recruitment, dismissal or
the
actual performance
of
functions."
- In these cases we have had
the
benefit
of the
extensive research carried out by
the
parties into state practice which has been helpfully presented to us in tabular form. It is not our intention to attempt in this judgment a comprehensive survey
of
state practice or to attempt to define
the
precise limits
of
state immunity in
embassy
employment disputes.
The
question for consideration is whether state practice supports
the
existence
of
a rule
of
customary international law which requires
the
grant
of
immunity in employment claims brought by service staff
of
a mission in
the
circumstances
of the
present cases.
- Libya is able to point to some state practice which is consistent with
the
effect
of
section 16(1)(a) in barring employment claims by members
of the
service staff
of
a diplomatic mission. Here Libya relies on section 5, Foreign States Immunities Act 87
of
1981 (South Africa) which provides that a foreign state has immunity from jurisdiction in proceedings relating to a contract
of
employment if "
the
proceedings relate to
the
employment
of the
head
of
a diplomatic mission or any member
of the
diplomatic mission or any member
of the
diplomatic, administrative, technical or service staff
of the
mission". Similarly, it relies on sections 6 and 17(1)(a), State Immunity Ordinance 1981 (Pakistan) which provide for immunity in respect
of
employment claims by members
of
a diplomatic mission or consular post.
- Libya also seeks to rely on judicial decisions in a number
of
states which do not have a state immunity statute.
(1) In Canada v. Employment Appeals Tribunal and Burke (1992) 95 ILR 467
the
Irish Supreme Court held that an employment tribunal did not have jurisdiction to consider an unfair dismissal claim by an Irish citizen who had been employed as a chauffeur by
the
Canadian
embassy
in Dublin. A majority
of the
Supreme Court considered that a restrictive immunity applied here. However,
the
court considered that
the
service provided by
the
chauffeur was "related to
the
exercise
of the
diplomatic functions
of the
ambassador". O'Flaherty J. considered (at p. 500) that "prima facie anything to do with
the embassy
is within
the
public domain
of the
government in question". That, however, is a rebuttable presumption as is demonstrated by a recent decision
of the
Irish Employment Appeal Tribunal in Adan v.
Embassy of
Kenya (unreported, 16 May 2013). There
the
Tribunal discussed
the
Canadian
Embassy
case and
the
decision
of the
CJEU in Mahamdia and expressed itself "satisfied that
the
claimant's functions as a cleaner did not fall "within
the
restricted form
of
immunity" as considered in
the
Canadian
Embassy
case nor did her position involve her "within
the
exercise
of
public powers" according to
the
test set out in Mahamdia.
(2) In A v. B (3 April 2004; ILDC 23 (NO 2004))
the
Appeals Selection Committee
of the
Norwegian Supreme Court held a foreign state immune from an employment claim brought by a Norwegian national who had worked as a driver at
the
state's
embassy
in Oslo. Although this was a case in which reinstatement was sought,
the
decision does not appear to be limited to such cases. However, we note that Norway has, more recently, ratified
the
UN Convention on 27 March 2006.
(3) In Heusala v. Turkey (KKO: 1993:120; ILDC 576 (FI 1993))
the
Finnish Supreme Court held that Turkey was immune in respect
of
an employment claim by a Finnish national who had worked as a secretary and translator in
the
Turkish
embassy
in Helsinki. However, this decision in relation to a person who would have been a member
of the
administrative and technical staff
of the
mission does not assist in relation to whether international law requires immunity in employment claims by service staff. Furthermore, we note that Finland "accepted"
the
UN Convention on 23 April 2014.
(4)
The
German decisions on which Libya relies (Conrades v. United Kingdom (1981) 65 ILR 205; X v. Argentina (1996) 114 ILR 502 and Muller v. USA (1998) 114 ILR 512) concern claims by members
of the
administrative or technical staff
of
a consulate.
(5) In Brazil v. De Vianna Dos Campos Riscado (13 February 2012, ILDC 2037 (I 2012) an Italian court held that Brazil was immune from an unfair dismissal claim by a Brazilian national who had been employed as a porter at
the
Brazilian
embassy
in Rome. However, that case indicates that a state will be denied immunity where
the
employee performed auxiliary services not connected to sovereign functions and
the
decision appears to turn on
the
view that
the
remedy
of
reinstatement sought by
the
claimant would have interfered with Brazil's sovereign powers because
the
claimant's role related to security at
the embassy
.
- Many other states do not grant blanket immunity in respect
of
all employment claims by
the
service staff
of
a diplomatic mission. We refer to
the
following simply by way
of
example.
(1)
The
US Foreign Sovereign Immunities Act 1976 does not include a specific provision for proceedings relating to contracts
of
employment which are therefore governed by
the
exception to immunity in
the
case
of
a "commercial activity carried on in
the
United States by a foreign state" (section 1605(a)(2)).
The
employment
of
domestic workers is considered a commercial activity and therefore subject to
the
jurisdiction
of the
US courts (El Hadad v.
Embassy of the
United Arab Emirates 216 F 3d 29 (DC Cir 2000) at [16]).
(2) In Australia
the
effect
of the
Foreign States Immunities Act 1985 is that in general a foreign state is not immune from proceedings concerning employment under a contract made in Australia or to be performed wholly or partly in Australia (section 12(1)). Express provisions restore immunity in claims concerning
the
employment
of
members
of the
diplomatic staff (section 12(5)) or
the
administrative and technical staff (section 12(6))
of
a mission, but not in respect
of
claims by
the
service staff.
(3) New Zealand courts permit claims by service staff
of
a mission in certain circumstances. There is no blanket prohibition. Thus in Governor
of
Pitcairn v. Sutton (30 November 1994, 104 ILR 508)
the
New Zealand Court
of
Appeal considered that
the
focus must be on
the
particular contractual relationship and responsibilities and their termination. It observed:
"Cleaners and others engaged to maintain
the
physical fabric may be able to make such a claim depending on whether their work brings them into a sufficient association with
the
sovereign functioning
of the
office
Domestic staff, who are often in a position
of
trust and confidence, may find it harder to establish a sufficient separation. And those employed in administrative or clerical support
of the
sovereign functions
of the embassy
or agency will clearly have difficulty in establishing that they were sufficiently distant from
the
exercise
of
governmental authority that litigation in
the
host country would not involve any intrusion on its domain." (at p. 522)
(4) Japan has substantially transposed Article 11 UN Convention into its domestic law (Act on
the
Civil Jurisdiction
of
Japan with respect to a Foreign State 2009, Article 9).
(5) Although Singapore's State Immunity Act has a provision identical to section 4(2)(b) SIA (Article 6, State Immunity Act), it does not contain a provision equivalent to section 16(1)(a) SIA.
(6) So far as European states are concerned, Austria, Finland, France, Italy, Latvia, Norway, Portugal, Romania, Spain, Sweden and Switzerland have all deposited instruments
of
ratification, acceptance, approval or accession to
the
UN Convention. In addition we have been referred to decisions
of
courts refusing immunity in proceedings relating to employment contracts
of
service staff
of
a mission in Austria (British
Embassy
Driver Case, 7 July 1978, 65 ILR 20), Belgium (Rousseau v.
Republic of
Upper Volta, 25 April 1983, 82 ILR 118), France (Saignie v.
Embassy of
Japan, 11 February 1997, 113 ILR 492), Germany (Mahamdia v. People's Democratic
Republic of
Algeria, 14 January 2009, Higher Labour Court
of
Berlin-Brandenburg), Italy (Zambian
Embassy
v. Sendanayake, 24 May 1992, 114 ILR 532), Portugal (X v. Israel, 13 November 2002, 127 ILR 310), Spain (Emilio B.M. v.
Embassy of
Equatorial Guinea, 10 February 1986, 86 ILR 508) and Switzerland (M v. Arab
Republic of
Egypt, 16 November 1994, 116 ILR 656).
- There can be no doubt that Libya is correct in its submission that state practice in relation to immunity from employment claims by members
of
a diplomatic mission is diverse. However, in
the
light
of the
state practice described above, we find it impossible to conclude that there is any rule
of
international law which requires
the
grant
of
immunity in respect
of
employment claims by members
of the
service staff
of
a mission in
the
absence
of
some special feature such as where
the
claim is for
the
recruitment, renewal
of
employment or reinstatement
of
an individual or where
the
proceedings would interfere with
the
security interests
of the
state. No such considerations arise in
the
present cases. Furthermore,
the
preponderance
of
state practice is such that, whatever
the
position may have been in 1978,
the
position contended for by Libya and
the
Secretary
of
State can no longer be regarded as within
the
range
of
tenable views
of
what is required by international law. It therefore falls outside
the
margin
of
appreciation which Article 6 affords in that regard to states which are parties to ECHR.
- This conclusion is supported by Professor Garnett ((2005) 54 ICLQ 705). In his view
the
United Kingdom is almost alone among developed countries in continuing to deprive
embassy
employees occupying subordinate positions
of
rights
of
redress in
the
event
of
any dispute arising in respect
of
their employment. He considers that under section 16(1)(a)
the
rights
of
all
embassy
employees are effectively "eviscerated". Referring to
the
blanket nature
of the
provision he observes:
"It is notable that
the
provision fails to take account
of the
different nature
of the
employment within an
embassy
or consulate, in particular
the
degree
of
proximity to, or involvement with, uniquely "sovereign" activities.
Under
the
Act a mission employee's claim against a foreign State is dismissed perfunctorily without any regard for
the
circumstances
of the
claim or whether an action may even be brought in
the
courts
of the
foreign State itself.
The
consequence is that a foreign State employer is in a disproportionately privileged legal position compared to other defendants in UK litigation. Such a rule may
of
course be more defensible if it were an implementation
of
principles
of
public international law. However,
it seems that
the
UK position is
the
harshest in
the
developed world as far as
embassy
and consulate employees are concerned and is therefore likely inconsistent with
the
international law standard." (at p. 707)
- Further support for
the
view that international law does not require
the
grant
of
absolute immunity from all employment claims by employees
of
diplomatic missions is provided by
the
decision
of the
Court
of
Justice
of the
European Union ("CJEU") in Case C-154/11 Mahamdia v Algeria. Mr. Mahamdia, who had both Algerian and German nationality, lived in Germany where, in 2002 he was employed as a driver in
the
Algerian
embassy
in Berlin. His contract contained a clause conferring exclusive jurisdiction, if there was a dispute, on
the
Algerian courts. He brought proceedings against Algeria in
the
Berlin Labour Court for unpaid overtime and dismissal. Algeria contended that
the
German courts had no jurisdiction, relying on both state immunity and
the
exclusive jurisdiction clause.
The
Berlin Labour Court agreed but its order was set aside on appeal by
the
Higher Labour Court. That court held that Algeria did not enjoy immunity from
the
claim. There was a further appeal to
the
Federal Labour Court which set aside
the
order
of the
Higher Labour Court and remitted
the
case to it to make further factual findings about
the
nature
of
Mr. Mahamdia's work.
The
Higher Labour Court then decided to refer two questions to
the
CJEU for a preliminary ruling. One
of the
questions asked whether
the embassy of
a non-member state, which was situated in a member state, was a "branch, agency or establishment" for
the
purposes
of
Article 18(2)
of the
Council Regulation (EC) 44/2001
of
22 December 2000 on jurisdiction and
the
recognition and enforcement
of
judgments in civil and commercial matters ("
the
Brussels Regulation").
The
other question related to
the
effect
of the
exclusive jurisdiction clause.
The
importance
of the
case for present purposes lies in
the
court's consideration under
the
first question
of
customary international law on state immunity.
"53 Before
the
German courts and in
the
observations it submitted in
the
present proceedings for a preliminary ruling,
the
People's Democratic
Republic of
Algeria argued that recognising
the
jurisdiction
of
a court
of the
receiving State
of
an
embassy
would amount to disregarding
the
rules
of
customary international law on immunity from jurisdiction, and that, taking those rules into account, Regulation No 44/2001, in particular Article 18, is not applicable in a dispute such as that in
the
main proceedings.
54 On this point, it must be observed that under
the
generally accepted principles
of
international law concerning immunity from jurisdiction a State cannot be sued before
the
court
of
another State in a dispute such as that in
the
main proceedings. Such immunity
of
States from jurisdiction is enshrined in international law and is based on
the
principle par in parem non habet imperium, as a State cannot be subjected to
the
jurisdiction
of
another State.
55 However, as
the
Advocate General observes in points 17 to 23
of
his Opinion, in
the
present state
of
international law, that immunity is not absolute, but is generally recognised where
the
dispute concerns sovereign acts performed iure imperii. It may be excluded, by contrast, if
the
legal proceedings relate to acts performed iure gestionis which do not fall within
the
exercise
of
public powers.
56 Consequently, in view
of the
content
of
that principle
of
customary international law concerning
the
immunity
of
States from jurisdiction, it must be considered that it does not preclude
the
application
of
Regulation No 44/2001 in a dispute, such as that in
the
main proceedings, in which an employee seeks compensation and contests
the
termination
of
a contract
of
employment concluded by him with a State, where
the
court seised finds that
the
functions carried out by that employee do not fall within
the
exercise
of
public powers or where
the
proceedings are not likely to interfere with
the
security interests
of the
State. On
the
basis
of
that finding,
the
court seised
of
a dispute such as that in
the
main proceedings may also consider that that dispute falls within
the
material scope
of
Regulation No 44/2001."
- Mr. Eicke QC, on behalf
of the
Secretary
of
State, argues that in Mahamdia
the
CJEU took no view on
the
question
of the
restrictive doctrine
of
state immunity applying to employment claims brought by employees
of
a diplomatic mission against
the
sending state because that was a matter for
the
national court. He argues that
the
CJEU was merely setting out
the
rule applied by
the
national court. We disagree.
The
CJEU had to consider whether a state is entitled to immunity from an employment claim by a domestic worker
of
an
embassy
; if it were entitled to immunity, Article 18
of the
Brussels Regulation could never apply. We accept Mr. Otty's submission to that effect. Our conclusion is supported by paragraphs 53 to 55
of the
CJEU's judgment set out above.
- Mr. Eicke further submits that it was outside
the
competence
of the
CJEU to decide questions
of
international law, and that its judgment in Mahamdia should therefore be read as meaning that it did not do so. In that regard Mr. Eicke cited paragraph 78
of the
opinion
of the
Advocate General in Case C-292/05 Lechouritou v Dimisio Omospondiakis Dimokratias tis Germanias. That paragraph states:
"Accordingly,
the
issue
of
State immunity from legal proceedings must be settled before considering
the
Brussels Convention since, if proceedings cannot be brought,
the
determination
of
which court can hear
the
action is immaterial. In addition, it is not within
the
powers
of the
Court
of
Justice to examine whether there is State immunity in
the
present case and its implications with regard to human rights."
- We accept that
the
CJEU's primary role is to decide matters
of
EU law. However, its role with regard to international law is just like that
of
a domestic court. It may be necessary for
the
CJEU or a domestic court to decide directly or indirectly a question
of
international law in order to decide disputes properly brought before it (see, for example, Case C-466/11 Curra v. Bundesrepublic Deutschland, 12 July 2012 (Third Chamber) at [18].) We do not understand
the
Advocate General to be denying that. Moreover, that, as already explained, is what happened in
the
court's later decision in Mahamdia.
(3) Conclusion on whether section 16(1)(a) SIA is required by international law.
- For all
the
reasons we have set out at [33] to [52] above, we conclude that a rule
of the
breadth
of
section 16(1)(a) SIA is not required by international law and is not within
the
range
of
tenable views
of
what is required by international law. Accordingly, in its application to
the
claims
of
these claimants, section 16(1)(a) SIA is incompatible with Article 6 ECHR.
D. Section 4(2)(b) SIA
- Ms.. Janah's claim is also barred, prima facie, by section 4(2)(b) SIA because it was conceded before
the
Employment Tribunal that she was not habitually resident in
the
United Kingdom at
the
time her contract
of
employment was made and that, accordingly, section 4(2) disapplied
the
exception to immunity created by section 4(1). We understand that
the
issue
of
Ms. Benkharbouche's habitual residence has not yet been resolved in her proceedings. If, in due course, it is held that she was not habitually resident in
the
United Kingdom at
the
time her contract
of
employment was made, section 4(2)(b) will be an obstacle in
the
path
of
her claim for
the
same reason.
The
United Kingdom is not
the
only state to limit in this way
the
exception to immunity in respect
of
employment contracts. Similar or identical statutory provisions modelled on section 4(2)(b) SIA are to be found, for example, in Israel (Foreign States Immunity Law 5769-2008, section 4(a)(3)), Pakistan (State Immunity Ordinance 1981, section 6(2)(b)), Singapore (State Immunity Act, Article 6(2)(b)) and South Africa (Foreign States Immunities Act 87
of
1981, section 5(1)(b)). Section 4(2)(b) SIA is itself derived from and gives effect in domestic law to Article 5(2)(b) ECSI, a convention concluded under
the
auspices
of the
Council
of
Europe, which is in force and to which Austria, Belgium, Cyprus, Germany, Luxembourg,
the
Netherlands, Switzerland and
the
United Kingdom are parties. This provision in ECSI reflects
the
fact that
the
convention was intended not merely to define
the
limits
of the
immunity
of the
contracting states but also to establish a system for
the
enforcement
of
judgments against states. As a result
the
exceptions to immunity were further restricted by
the
incorporation
of
connecting factors to
the
forum state in order to ensure that
the
jurisdiction
of
that state was properly founded. (See generally, Fox and Webb, pp. 116-123.) Furthermore,
the
Explanatory Report on
the
Convention submitted to
the
Committee
of
Ministers
of the
Council
of
Europe justifies
the
difference
of
approach to employment contract disputes as follows:
"
A distinction has been drawn between contracts
of
employment and other contracts (Article 4) because in certain circumstances it may be justifiable to accord immunity to a defendant State under a contract
of
employment particularly when
the
employee is a national
of the
employing State (see paragraph 2, sub-paragraph (a)).
The
same is true when
the
employee is a national neither
of the
State for whom he works, nor
of the
State where he works, and where
the
contract
of
employment was not concluded on
the
territory
of the
latter State namely where
the
employee is a foreign worker who has not been locally recruited (see paragraph 2, sub-paragraph (b)). In both cases
the
links between
the
employee and
the
employing State (in whose courts
the
employee may always bring proceedings) are generally closer than those between
the
employee and
the
State
of the
forum."
- Against this background Libya submits that these measures, including section 4(2)(b) SIA, reflect generally recognised rules
of
public international law on state immunity which, applying
the
test formulated by
the
Strasbourg court in Cudak (at [57]), cannot therefore be regarded as imposing a disproportionate restriction on
the
right
of
access to court. However,
the
fact that a number
of
states employ such a provision does not mean that there is a widely recognised acceptance that public international law requires that
the
exception to immunity be limited in this way and that immunity be granted in such cases. Moreover it is to be noted that whereas
the
rule in section 4(2)(b) SIA is a rule
of
general application, certain other states which are party to ECSI apply Article 5(2) only where both
the
forum state and
the
state claiming immunity are parties to that convention. Thus in
the
French Consular Employee Claim (Case No. 9 Ob A 170/89, 14 June 1989; 86 ILR 583),
the
Austrian court at first instance had held that France was entitled to immunity pursuant to Article 5(2)(a) ECSI because
the
claimant, formerly head
of the
visa section in
the
French consulate in Innsbruck, was a French national.
The
Austrian Supreme Court held that since France was not a party to ECSI that convention did not apply.
The
court considered that
the
issue
of
immunity had to be decided by
the
application
of the
generally recognised rules
of
international law and went on to hold that
the
nature
of the
employment obligations was not
of
a sovereign character and that France was not entitled to immunity. Similarly in De Queiroz v. State
of
Portugal (22 September 1992, 115 ILR 430), another case where
the
claimant was a national
of the
respondent state and which was therefore said to concern Article 5(2)(a),
the
Labour Court
of
Brussels (Fourth Chamber) held that since Portugal had signed but not ratified ECSI
the
convention was not applicable to those proceedings except in relation to those
of
its provisions which are declaratory
of
customary international law. It observed:
"Paragraph 2
of
Article 5 does not reproduce a pre-existing rule
of
customary law since it refers to a connecting factor based on
the
nationality
of the
employee, which negates
the
theory
of
restrictive immunity based on
the
distinction between acts
of
sovereignty performed jure imperii and commercial acts performed jure gestionis" ( p. 434).
In our judgment, these decisions provide compelling support for
the
view that there is no rule
of
international law which requires
the
grant
of
immunity in
the
circumstances identified in section 4(2) SIA.
The
regime
of
state immunity established by ECSI influenced
the
work
of the
ILC on jurisdictional immunities
of
states and their property which it undertook between 1979 and 1991. In particular Article 11, ILC Draft Articles produced in 1991 included
the
following provisions which reflect Article 5(2) ECSI:
"Article 11
Contracts
of
employment
1. Unless otherwise agreed between
the
States concerned, a State cannot invoke immunity from jurisdiction before a court
of
another State which is otherwise competent in a proceeding which relates to a contract
of
employment between
the
State and an individual for work performed or to be performed in whole or in part, in
the
territory
of
that other State.
2. Paragraph 1 does not apply if:
(c)
the
employee was neither a national nor a habitual resident
of the
State
of the
forum at
the
time when
the
contract
of
employment was concluded;
(d)
the
employee is a national
of the
employer State at
the
time when
the
proceeding is instituted;
"
The
ILC Commentary which accompanied
the
Draft Articles explained
the
Commission's view that with
the
involvement
of
two sovereign states, two legal systems compete for application
of
their respective laws.
The
employer State has an interest in
the
application
of
its law in regard to
the
selection, recruitment and appointment
of
an employee by
the
State or one
of
its organs, agencies or instrumentalities acting in
the
exercise
of
governmental authority and in
the
disciplinary supervision
of
such employees. On
the
other hand, it considered,
the
forum state appears to retain exclusive jurisdiction in matters
of
domestic public policy regarding
the
protection to be afforded to its local labour force. It observed:
"(4)
The
basis for jurisdiction is distinctly and unmistakably
the
closeness
of
territorial connection between
the
contracts
of
employment and
the
State
of the
forum, namely performance
of
work in
the
territory
of the
State
of the
forum, as well as
the
nationality or habitual residence
of the
employees. Indeed, local staff working, for example, in a foreign
embassy
would have no realistic way to present a claim other than in a court
of the
State
of the
forum. Article 11, in this respect, provides an important guarantee to protect their legal rights.
(5) Article 11 therefore endeavours to maintain a delicate balance between
the
competing interests
of the
employer State with regard to
the
application
of
its law and overriding interests
of the
State
of the
forum for
the
application
of
its labour law and, in certain exceptional cases, also in retaining exclusive jurisdiction over
the
subject-matter
of
a proceeding."
It then advanced
the
following justification for Article 11(2)(c):
"(11) Paragraph 2(c) also favours
the
application
of
State immunity where
the
employee was neither a national nor a habitual resident
of the
State
of the
forum,
the
material time for either
of
these requirements being set at
the
conclusion
of the
contract
of
employment. If a different time were to be adopted, for instance
the
time when
the
proceeding is initiated, further complications would arise as there could be incentives to change nationality or to establish habitual or permanent residence in
the
State
of the
forum thereby unjustly limiting
the
immunity
of the
employer State.
The
protection
of the
State
of the
forum is confined essentially to
the
local labour force, comprising nationals
of the
State
of the
forum and non-nationals, who habitually reside in that State. Without
the
link
of
nationality or habitual residence,
the
State
of the
forum lacks
the
essential ground for claiming priority for
the
exercise
of
its applicable labour law and jurisdiction in
the
face
of
a foreign employer State, in spite
of the
territorial connection in respect
of
place
of
recruitment
of the
employee and place
of
performance
of
services under
the
contract."
- Following
the
publication
of the
ILC Draft Articles a Working Group
of the
Sixth (Legal) Committee
of the
United Nations General Assembly was established which met from 1992 to 1994. Difficulty was experienced in five key areas, one
of
which was
the
exception for employment contracts.
The
General Assembly took up
the
matter again in 1999, requesting
the
ILC to provide any further views regarding
the
five contentious areas.
The
ILC created a Working Group which reviewed
the
Draft Articles, concentrating on
the
five main issues previously identified. In its 1999 Report
the
Working Group stated that divergent views existed on Article 11(2)(c), ILC Draft Articles. In particular it stated that sub-paragraph (c) could not be reconciled with
the
principle
of
non-discrimination based on nationality. Accordingly
the
Chairman had proposed
the
deletion
of
that sub-paragraph. (Report
of the
Working Group on Jurisdictional Immunities
of
States and their Property, Yearbook
of the
International Law Commission, 1999, Vol. II, at [87].) It noted that under
the
draft sub-paragraph
the
protection
of the
state
of the
forum is confined essentially to
the
local labour force, comprising nationals
of the
state
of the
forum and non-nationals who habitually reside in that state.
The
Working Group recommended to
the
General Assembly that it would be advisable to delete this provision as it could not be reconciled with
the
principle
of
non-discrimination based on nationality. However, it observed that this deletion should not pre-judge
the
possible inadmissibility
of the
claim on grounds other than state immunity, such as, for instance,
the
lack
of
jurisdiction
of the
forum state (at [106]).
The
Report
of the
Chairman
of the
Working Group to
the
General Assembly dated 12 November 1999 (A/C.6/54/L.12) stated (at [33]) that there was widespread support for
the
Commission's suggestion that sub-paragraph (c) be deleted as contrary to
the
principle
of
non-discrimination based on nationality.
The
Report
of the
Chairman
of the
Working Group to
the
General Assembly dated 10 November 2000 (A/C.6/55/L.12) stated (at [47]) that there was general agreement to follow
the
suggestion
of the
Chairman to delete sub-paragraph (c).
- In December 2000
the
General Assembly established an Ad Hoc Committee on Jurisdictional Immunities
of
States and their Property. This Committee met between 2002 and 2004 and it produced
the
final text
of the
UN Convention which was adopted by
the
General Assembly on 2 December 2004. That text does not include
the
sub-paragraph 11(2)(c) ILC Draft Articles.
The
claimants submit that section 4(2)(b) SIA discriminates on grounds
of
nationality against foreign nationals working in
the
United Kingdom. They point to
the
fact that entitlement to
the
equal protection
of the
law without discrimination on grounds
of
nationality is a general principle
of
international law reflected, inter alia, by Articles 1 and 2, Universal Declaration
of
Human Rights, 1948, Article 26, International Covenant on Civil and Political Rights, Article 14 ECHR and Articles 20 and 21 EU Charter. Limiting
the
discussion at this point to
the
position under
the
ECHR and following
the
approach laid down by Lord Bingham in A v. Secretary
of
State for
the
Home Department [2005] 2 AC 68 (at [50]), it is clear that
the
facts fall within
the
ambit
of
Article 6 and that there is a difference
of
treatment on grounds
of
nationality between Ms. Janah and UK nationals seeking to pursue a similar claim. It is for consideration whether these persons are in an analogous situation and, if so, whether
the
difference in treatment is objectively justifiable in that it has a legitimate aim and bears a reasonable relationship
of
proportionality to that aim.
- For
the
reasons given above, we are unable to accept
the
submission on behalf
of
Libya, supported by
the
Secretary
of
State, that section 4(2)(b) gives effect in domestic law to
the
United Kingdom's international legal obligations under ECSI and that this provides
the
required objective and reasonable justification.
- It is, therefore, necessary to consider in turn
the
legitimate objectives which might possibly be achieved by such a limitation on
the
exception to immunity. It has not been suggested, nor could it, that this is intended in any way to protect
the
sovereign functions
of
an
embassy
. On
the
contrary,
the
purpose seems to be a need to identify those cases in which
the
United Kingdom has a sufficient jurisdictional interest in
the
claim based, in particular, on its interest in adjudicating on
the
employment law rights
of
its local labour force. However, in that context, we consider that limiting access to justice in this way to those who are UK nationals or habitually resident in
the
United Kingdom at
the
time
the
contract is made cannot be justified. A sufficient jurisdictional link is already established because
the
exception to immunity established by section 4(1) applies only to proceedings relating to an employment contract made in
the
United Kingdom or where
the
work is to be wholly or partly performed there. As Mr. Otty puts it, viewed through
the
lens
of
modern understanding
of the
importance
of
non-discrimination, it is untenable to suggest that
the
forum state has no sufficient interest in adjudicating on
the
employment law rights
of
local long term workers simply because they are non-nationals or happen to have been resident outside
the
jurisdiction before they commenced their employment. Furthermore, while
the
Explanatory Report to ECSI is correct in pointing out that
the
employer state will not be entitled to immunity before its own courts,
the
facts
of the
present cases serve to demonstrate that those courts will often not be a convenient alternative forum. (In this regard we should add that, in our view,
the
suggestion in
the
Commentary on
the
ILC Draft Articles (at [11], quoted above) that such a restriction is necessary to avoid opportunistic changes
of
nationality or habitual residence is totally unrealistic.) Finally, we reject
the
suggested justification in
the
Commentary to
the
ILC Draft Articles that without
the
link
of
nationality or habitual residence at
the
time
the
contract is made
the
state
of the
forum lacks justification for applying its employment law in priority to that
of
any other state. We are not here concerned with questions
of
applicable law.
- Before leaving this topic, it is necessary to refer to a further submission on behalf
of
Libya, once again supported by
the
Secretary
of
State. They draw attention to Article 5(2)(a) ECSI (implemented by section 4(2)(a) SIA) which provides that
the
exception to immunity in
the
case
of
employment contracts shall not apply where
the
employee is a national
of the
employing State at
the
time when
the
proceedings are brought. Similarly, they point to Article 11(2)(e) UN Convention which provides that
the
exception to immunity does not apply if
the
employee is a national
of the
employer State at
the
time when
the
proceeding is instituted, unless this person has permanent residence in
the
state
of the
forum. This, they submit, is an example
of
discrimination on grounds
of
nationality which has, apparently, been accepted by international law. Foakes and O'Keefe state (in O'Keefe and Tams at p. 194)) that when
the
Working Group
of the
ILC considered in 1999
the
text which became Article 11(2)(e)
of the
UN Convention a number
of
delegations expressed
the
view that it might present some problems with regard to
the
principle
of
non-discrimination based on nationality, in particular regarding employees permanently residing in
the
forum state. They explain that there was, however, general agreement that
the
provision be retained, subject to
the
insertion
of
wording to meet concerns regarding employees residing permanently in
the
forum state. It seems to us that
the
reason for this limitation is rather different from that with which we are currently concerned.
The
ILC Report on
the
Draft Articles justified it on
the
ground that as between
the
state and its own nationals no other state should claim priority
of
jurisdiction over claims arising out
of
contracts
of
employment, in particular as remedies and access to courts exist in
the
employer state. However, be that as it may, it does not influence our conclusions in relation to section 4(2)(b) SIA.
- For these reasons we consider that section 4(2)(b) SIA is discriminatory on grounds
of
nationality. We are fortified in this conclusion by
the
fact that
the
ILC Working Group concluded in 1999 that Article 11(2)(c)
of the
Draft Articles could not be reconciled with
the
principle
of
non-discrimination based on nationality and by
the
fact that Fox and Webb (at p. 454) conclude that section 4(2)(b) SIA is discriminatory and a disproportionate limitation contrary to Article 6 ECHR. Accordingly, no such limitation to
the
exception to immunity is required by customary international law, nor is it within
the
range
of
reasonably tenable opinion within
the
margin
of
appreciation granted to states in
the
assessment
of
their international obligations.
- Accordingly, we conclude that section 4(2)(b) SIA in its application to
the
claims brought by these claimants infringes Articles 6 and 14 ECHR.
E. Remedies in respect
of
infringement
of
ECHR.
The
President
of the
Employment Appeal Tribunal considered that
the
wording
of
sections 4 and 16 SIA could not be read down pursuant to
the
interpretative obligation imposed by section 3(1) HRA. That subsection provides:
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with
the
Convention rights."
The
judge considered (at [40]) that
the
Parliamentary intent expressed in
the
SIA was to confer immunity subject to specific exceptions. In his view
the
Act was framed so as to create a careful, detailed and clear pattern which balances considerations known to
the
legislature. He considered that if a court or tribunal were to alter
the
width
of
a provision limiting an exception to immunity (section 4(2)) or
of
a clear statement that section 4 does not apply to particular people (section 16) there would be a danger
of
its affecting
the
overall balance struck by
the
legislature whilst lacking Parliament's panoramic vision across
the
whole
of the
landscape. We agree. Any attempt to read down these provisions so as to remove immunity would be to adopt meanings inconsistent with fundamental features
of the
legislative scheme. (See, generally, Ghaidan v. Godin-Mendoza [2004] 2 AC 557 per Lord Nicholls at [33], per Lord Millett at [63], per Lord Rodger
of
Earlsferry at [121].) On these appeals, Mr. Otty has not sought to persuade us to
the
contrary.
- Langstaff J., sitting in
the
Employment Appeal Tribunal, did not have
the
power to make a declaration
of
incompatibility pursuant to section 4(2) Human Rights Act 1998. We propose to make a declaration that section 16(1)(a) SIA, in its application to
the
claims brought by these claimants, infringes Article 6 ECHR and that section 4(2)(b) SIA, in its application to
the
claims brought by these claimants, infringes Articles 6 and 14 ECHR. We will hear counsel as to its precise form.
IV.
THE
EU LAW CLAIMS AND
THE
EU CHARTER
The
next task is to examine EU law.
The
appellants' argument here is based on Article 47 EU Charter, which was incorporated into English law following
the
Lisbon Treaty.
The
changes took effect in domestic law on 1 December 2009 by virtue
of
amendments to
the
European Communities Act 1972 made by
the
European Union (Amendment) Act 2008.
- Article 47 EU Charter provides:
"Article 47. Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by
the
law
of the
Union are violated has
the
right to an effective remedy before a tribunal in compliance with
the
conditions laid down in this Article
"
- It is common ground that, in so far as relevant to
the
present case,
the
content
of
Article 47 is identical to that
of
Article 6 ECHR. It follows from our conclusions on Article 6 ECHR that
the
appellants have accordingly succeeded in showing that Article 47 is violated.
- EU law has potentially important consequences in this case.
The
judge held that as a result
of the
violation
of
Article 47 EU Charter,
the
court was bound to disapply sections 4(2)(b) and 16(1)(a) SIA. Ms. Benkharbouche and Ms. Janah could then bring their EU law claims, and those statutory provisions would not then bar their claims. By contrast,
the
declaration
of
incompatibility which we propose to make under section 4 HRA does not affect
the
operation or validity
of the
SIA.
The
declaration acts primarily as a signal to Parliament that it needs to consider amending that legislation.
The
appellants cannot
of
course claim a remedy under
the
EU Charter unless they can also show that they are entitled to rely on a violation
of
it to seek a remedy in proceedings before a national court. For this there must be claims which fall "within
the
scope
of
" EU law. As to this, Article 51 EU Charter confirms that
the
EU Charter is addressed to
the
EU institutions and like bodies and that it does not extend
the
field
of
application
of the
EU Treaties. Article 52(5)
of the
EU Charter states that
the
EU Charter only applies to these entities when they are implementing Union law, in
the
exercise
of
their respective powers.
The
EU Charter does not, therefore, apply to claims based on national law.
- In fact, it is common ground that both claimants have claims that fall within
the
scope
of
EU law. As
the
judge explained, Ms. Benkharbouche's claims under
the
Working Time Regulations and Ms. Janah's claims under
the
Working Time Regulations and for racial discrimination and harassment are derived from EU measures. They have other claims which they accept are not within EU law, such as claims for unfair dismissal.
The
question
of
what falls within
the
scope
of
EU law is controversial in some contexts but no one has taken issue with
the
point that in part Ms. Benkharbouche's claims and Ms. Janah's claims are within
the
scope
of
EU law.
The
outstanding issues are:
(1) whether Article 47 has "horizontal" direct effect, meaning that
the
appellants can rely on it even though Libya is not a Member State or one
of the
EU institutions referred to in Article 51 EU Charter;
(2) if so, whether this court should decline to disapply sections 4(1)(b) and 16(1)(a) SIA on
the
grounds that it is not clear what rule applies in place
of
these provisions as a matter
of
international law.
A. Horizontal Direct Effect
- In our judgment, for
the
reasons given below, an EU Charter right can be relied on "horizontally" in certain circumstances.
The
CJEU gave general principles
of
EU law horizontal direct effect before
the
EU Charter came into effect. In Case C-144/04 Mangold v Helm [2005] ECR I-9981, there was a dispute between a private employer and an employee who claimed that a provision
of
his employment contract discriminated against him on
the
grounds
of
age. He argued that national law was incompatible with Directive 2000/78 but that Directive had not been transposed into national law and
the
time for doing so had not expired.
The
conventional route for enforcing non-implemented Directive rights is through
the
EU law doctrine
of
direct effect, but that is not applicable where
the
time for transposition has not expired.
The
CJEU agreed that
the
national law was contrary to Directive 2000/78. It went on to hold that
the
provisions
of the
Directive were applicable even though it had not been transposed into national law and
the
time for transposition had not expired. Its reasoning was that
the
Directive implemented
the
principle
of
non-discrimination, and that was a general principle
of
EU law which had to be applied anyway. National law had to be set aside in order to give effect to
the
general principle.
- It is therefore perhaps not surprising to find that
the
CJEU has applied Mangold to
the
equivalent Charter provision after
the
Lisbon Treaty came into effect. Case C-555/07 Kücükdeveci v Swedex [2010] IRLR 346 was another dispute between private parties about age discrimination where again national law had not properly transposed Directive 2000/78. (
The
time for transposition had in this case just expired).
The
CJEU again held that there was a general principle
of
non-discrimination in EU law which had to be given effect. It noted that Article 21 EU Charter now contained
the
principle
of
non-discrimination.
The
CJEU also stated, without apparent qualification or elaboration, that
the
Lisbon Treaty (specifically Article 6, Treaty on
the
Functioning
of the
EU) provided that
the
EU Charter had
the
same status as
the
Treaties. This was significant because, as Lord Kerr pointed out in Rugby Football Union v Consolidated Information Services Ltd [2012] 1 WLR 3333 at [26]:
"[I]n its initial incarnation
the
Charter had persuasive value:
the
CJEU referred to and was guided by it: see, for instance,
the
Promusicae case [2008] All ER (EC) 809, paras 6170."
- A question which remained after Kücükdeveci was whether
the
CJEU's statement about
the
status
of the
EU Charter means that
the
Lisbon Treaty had elevated all
the
rights, freedoms and principles in
the
EU Charter to a level equivalent to Mangold general principles.
The
CJEU to an extent addressed this question in Case C-176/12 Association de Mediation Sociale (AMS) [2014] ECR I-000 ("AMS") which was decided after Langstaff J. gave his judgment. In this case, a trade union representative sought to rely on Article 27
of the
EU Charter (workers' right to information and consultation) against a private employer.
The
relevant directive had again not been duly implemented by national law and it did not have direct effect.
The
CJEU held that Article 27 could not be invoked horizontally because it required specific expression in Union or national law, but expressly distinguished Kücükdeveci.
The
same objection does not apply to Article 47, which does not depend on its definition in national legislation to take effect.
The
CJEU did not, however, go on to make it clear which rights and principles contained in
the
EU Charter might be capable
of
having horizontal direct effect, and which would not. In our judgement, however, Article 47 must fall into
the
category
of
Charter provisions that can be
the
subject
of
horizontal direct effect. It follows from
the
approach in Kücükdeveci and AMS that EU Charter provisions which reflect general principles
of
EU law will do so.
The
Explanations prepared under
the
authority
of the
Praesidium
of the
Convention which drafted
the
EU Charter, which Article 52(7) EU Charter requires
the
court to take into account when interpreting
the
EU Charter, state that
the
CJEU has "enshrined"
the
right to an effective remedy "as a general principle
of
Union law".
The
Explanations cite Case 222/84 Johnston [1986] ECR 1651; Case 222/86 Heylens [1987] ECR 4097 and Case C-97/91 Borelli [1992] ECR I-6313. In Borelli, for instance,
the
CJEU held:
"14. As
the
Court observed in particular in Case 222/84 Johnston v Chief Constable
of the
Royal Ulster Constabulary [1986] ECR 1651, paragraph 18, and in Case 222/86 UNECTEF v Heylens [1987] ECR 4097, paragraph 14,
the
requirement
of
judicial control
of
any decision
of
a national authority reflects a general principle
of
Community law stemming from
the
constitutional traditions common to
the
Member States and has been enshrined in Articles 6 and 13
of the
European Convention for
the
Protection
of
Human Rights and Fundamental Freedoms."
- We therefore conclude that
the
right to an effective remedy guaranteed by Article 47 EU Charter is a general principle
of
EU law so that Article 47 accordingly has horizontal direct effect. It remains,
of
course, subject to
the
exceptions to be found in
the
jurisprudence
of the
Strasbourg court (subject to any contrary provision in EU law). Our conclusion accords with
the
analysis
of the
case law made by Mr. Eicke, which Mr. Landau adopted and on which Mr. Otty relied.
B. Should
the
court decline to disapply sections 4(2)(b) and 16(1)(a) SIA on
the
grounds that it is not clear what rule applies in its place as a matter
of
international law?
- Mr. Landau submits that as a result
of the
observations
of
Lord Mance at [72] to [74] in R (Chester) v Secretary
of
State for Justice [2014] AC 271 it is now clear that
the
English courts retain a discretion in relation to
the
EU Charter not to disapply domestic statutes which are incompatible with an EU law right or principle in certain circumstances.
- Chester was a challenge under EU law to a ban on prisoners' voting in EU elections.
The
UK was entitled to impose some restrictions on their voting. Lord Mance (with whom
the
other Justices agreed) held that, even if
the
challenge had succeeded, it would not have been appropriate to disapply
the
relevant statute law. It was a complex statutory scheme and it was not for
the
court to devise an alternative.
- So, too, here Mr. Landau submits that
the
court would have to go beyond disapplying
the
SIA. It would have in effect to rewrite
the
SIA in order to retain state immunity in respect
of
claims for which
the
UK is required under international law to afford such immunity.
- We do not agree with this submission. Unlike
the
position in Chester,
the
scope
of the
disapplication in this case is clear.
The
order
of
this court will disapply sections 4(2)(b) and 16(1)(a) to
the
extent necessary to enable employment claims (other than for recruitment, renewal or reinstatement) falling within
the
scope
of
EU law by members
of the
service staff, whose work does not relate to
the
sovereign functions
of the
mission staff, to proceed.
V. CONCLUSION
- For
the
reasons set out above we have come to
the
following conclusions.
(1) Section 16(1)(a) SIA, in its application to
the
claims brought by these claimants, infringes Article 6 ECHR;
(2) Section 4(2)(b) SIA, in its application to
the
claims brought by these claimants, infringes Articles 6 and 14 ECHR;
(3) These provisions cannot be read down and given effect in a way which is compatible with ECHR pursuant to
the
interpretative obligation imposed by section 3(1) HRA;
(4) We propose to make a declaration
of
incompatibility pursuant to section 4(2) HRA;
(5) Furthermore,
the
claims
of
both claimants in respect
of
breach
of the
Working Time Regulations 1998 and
the
claims by Ms. Janah in respect
of
racial discrimination and harassment fall within
the
scope
of
EU law;
(6) Sections 4(2)(b) and 16(1)(a) SIA, in their application to those parts
of the
claims which fall within
the
scope
of
EU law, infringe Article 47 EU Charter;
(7)
The
claimants are entitled to rely in these proceedings on Article 47 EU Charter as having horizontal direct effect;
(8)
The
court is required, pursuant to section 2(1) European Communities Act 1972, to disapply sections 4(2)(b) and 16(1)(a) SIA, in their application to those parts
of the
claims which fall within
the
scope
of EU law.