Categories
human rights

we are above the law – or are we?

Lebanese_Embassy

Under the State Immunity Act 1978 (“the SIA”), sovereign states are not generally subject to the jurisdiction of UK courts and tribunals. The point is well demonstrated by the extraordinary extent to which the London Congestion Charge is ignored by diplomats. Disputes relating to contracts of employment, and related statutory rights, are carved out from that general immunity, subject to some exceptions. The upshot of those exceptions is that nationals of the sovereign state, and non UK nationals and residents employed in the UK by a sovereign state (for example embassy staff) cannot, under the 1978 Act, make unfair dismissal claims, discrimination claims or wages claims.

Thus it was that two Moroccans, one a cook working in the Sudanese embassy and the other a domestic worker in the Libyan embassy both had their claims (ranging from unlawful deductions to unfair dismissal) rejected by Employment Tribunals. Both appealed to the Employment Appeal Tribunal in Janah v Libya, arguing that they had been denied their right to a fair trial of their cases under the European Convention on Human Rights and analogous provisions of the EU Charter.

Under the Human Rights Act 1998, UK courts are obliged to read domestic legislation in a way compatible with rights under the Convention. Although accepting that there had been a breach of the right to a fair trial, this was not something the Employment Appeal Tribunal was prepared to do in a case where the SIA set out to restrict access to the court in defined circumstances. To read words into the SIA to reverse that intention would cross the critical line between interpretation and legislation.

The essential principle and scope of the Act is that it intends to restrict a right of access to the court in a situation in which that would otherwise be available. That is the inevitable effect of granting immunity from proceedings. Lord Rodger observed…that however powerful the obligation in sub-section 3 (1) of the HRA might be it did not allow the courts to change the substance of a provision completely, “to change a provision from one where Parliament says that X is to happen into one saying that X is not to happen”. Where Parliament has set out a clear list of those in respect of whom a plea of immunity will fail, and those in respect of whom it will succeed, it would in my view cross the critical line between interpretation and legislation to alter the list by removing one category from the “yes” camp, so as to place it in the “no” camp. Given that the overall approach is deliberately to limit access to justice in certain cases, there seems to me to be no proper interpretative scope for altering the criteria defined.

The EU Charter sets out general and fundamental principles, and domestic courts are required to disapply rules of domestic law which are incompatible with these, even in a dispute between private litigants.

Noting, with discomfort, the conflict between the provisions of the Human Rights Act on the one hand, which fights shy of requiring courts to disapply domestic statutes in conflict with the ECHR, and the general principle of EU law, under which an obligation to disapply incompatible local law does arise, the EAT, with reluctance, declared that the SIA should be disapplied in respect of those claims which were founded in EU law.

Recognising the importance of this issue being considered by a higher appellate court, both sides were given leave to appeal the case.

This is but one example of the daily incidence of conflict between domestic law and the requirements of the Convention, most frequently reported in the fields of immigration and deportation. Whatever your political views are it is clearly not right that the uncomfortable divide between the two inconsistent approaches should be left to judges such as the EAT President Mr Justice Langstaff in this case.

In a second case touching on the extent of immunity from suit, Al-Malki & Anor v Reyes & Anor , two further domestic workers, this time employed by a foreign diplomat in his official diplomatic residence, made a range of allegations, including that they had suffered discrimination and been denied contractual pay and the minimum wage. The Employment Appeal Tribunal considered the extent to which the employer could rely on diplomatic immunity as a bar to the claim. Under the Diplomatic Privileges Act 1964, the Vienna Convention on Diplomatic Relations has the force of law in the UK and diplomats are immune from the jurisdiction of courts except in relation to professional and commercial activity outside their diplomatic functions.

In allowing an appeal against the decision of an Employment Tribunal that diplomatic immunity was no bar to the claims, the EAT observed that diplomatic immunity is wider in its scope than state immunity, (which was at issue in Janah), and its underlying rationale was to facilitate the performance of diplomats’ official functions, which could include the employment of domestic servants. This underlying rationale meant both that diplomatic immunity could extend to the employment of domestic staff and that interference with the right to a fair trial under Article of the European Convention on Human Rights was justified.

That said, noting a shift in the views expressed in case law as to whether such immunity is proportionate in the case of domestic workers, and bearing in mind the lack of direct legal authority on the point, permission was given to appeal to the Court of Appeal.

Martin Malone

By Martin Malone

I'm a solicitor and the chief operating officer at Canter Levin & Berg. I was formerly head of the employment department.
I maintain this website so if you have any suggestions, criticisms or recommendations please email me at martinmalone@canter-law.co.uk.
Outside work my interests include national hunt horse racing, France and French wine and current affairs. I also design and maintain websites.