Benkharbouche v Embassy of the Republic of Sudan (Secretary of State for Foreign and Commonwealth Affairs and Others intervening)
| Jurisdiction | England & Wales |
| Judge | Lord Sumption,Lord Neuberger,Lady Hale,Lord Clarke,Lord Wilson |
| Judgment Date | 18 October 2017 |
| Neutral Citation | [2017] UKSC 62 |
| Date | 18 October 2017 |
| Court | Supreme Court |
[2017] UKSC 62
Lord Neuberger
Lady Hale
Lord Clarke
Lord Wilson
Lord Sumption
Appellant
Karen Steyn QC
Jessica Wells
(Instructed by The Government Legal Department)
Respondent (Janah)
Timothy Otty QC
Paul Luckhurst
(Instructed by Anti-Trafficking and Labour Exploitation Unit)
Intervener (The AIRE Centre)
Aidan O'Neill QC
(Instructed by Freshfields Bruckhaus Deringer LLP)
Intervener (4A Law Public Interest Lawyers Ltd)
(Written submissions only)
Arfan Khan
Tahir Ashraf
(Instructed by 4A Law Public Interest Lawyers Ltd)
Heard on 6, 7 and 8 June 2017
( with whom Lord Neuberger, Lady Hale, Lord Clarke and Lord Wilson agree)
The question at issue on this appeal is whether two provisions of the State Immunity Act 1978 are consistent with the European Convention on Human Rights and the European Union Charter of Fundamental Rights. The two provisions are section 4(2)(b) and section 16(1)(a). I shall set out both below, but in summary the effect of section 4(2)(b) is that a state is immune as respects proceedings relating to a contract of employment between a state and a person who at the time of the contract is neither a national of the United Kingdom nor resident there; and the effect of section 16(1)(a) is that a state is immune as respects proceedings concerning the employment of members of a diplomatic mission, including its administrative, technical and domestic staff. It is common ground that the answer depends in both cases on whether these provisions have any basis in customary international law although, as I shall explain, there is an issue about what kind of basis it must have.
Ms Minah Janah, the Respondent to this appeal, is a Moroccan national. In 2005, when she was resident in Libya, she was recruited to work for the Libyan government as a domestic worker at its embassy in London. She entered the United Kingdom on a visa which recorded her status as "Domestic Worker (Diplomatic)", and continued to work for the embassy until she was dismissed in 2012. During that time, she worked successively in a number of Libyan diplomatic households, and latterly in the residence of the ambassador. Her duties were cooking, cleaning, laundry, shopping and serving at meals. In April 2012, she began proceedings against Libya in the Employment Tribunal in support of a claim for failure to pay her the National Minimum Wage, breaches of the Working Time Regulations, failure to provide her with payslips or a contract of employment, unfair dismissal, discrimination and harassment. At all material times since her arrival in the United Kingdom, Ms Janah has been resident, but not permanently resident here.
Ms Fatimah Benkharbouche is also a Moroccan national. In 2000, when she was working for the Sudanese government in Iraq, she agreed to move to the United Kingdom to work for its embassy in London as a housekeeper and cook to the ambassador. Her employment by the London embassy began on 16 May 2000 and continued until the autumn of 2001. She then returned for some years to Iraq, before being re-engaged to work for the London embassy in the same role as before. Her second term of employment began on 28 January 2005 and continued until she was dismissed on 27 November 2010. She subsequently began proceedings in the Employment Tribunal in support of claims for unfair dismissal, failure to pay her the National Minimum Wage, unpaid wages and holiday pay, and breaches of the Working Time Regulations. By the time of her dismissal, she was permanently resident in the United Kingdom, having been granted indefinite leave to remain with effect from 25 January 2010.
It is common ground that under the terms of the State Immunity Act 1978, Libya is entitled to state immunity in respect of Ms Janah's claim and Sudan in respect of Ms Benkharbouche's. In Ms Janah's case, this is because she has never been a Libyan national and was not a national or permanent resident of the United Kingdom at the time when her contract was made. Both section 4(2)(b) and section 16(1)(a) therefore apply to her. In Ms Benkharbouche's case, it is because section 16(1)(a) applies to her. There are as yet no findings about whether the facts of her case bring her within section 4(2)(b). Both claims were dismissed by different judges in the Employment Tribunal on the ground that the employer was immune.
In the Employment Appeal Tribunal the two cases were heard together. The EAT declared that sections 4(2)(b) and 16(1)(a) of the Act should be disapplied so far as they prevented Ms Janah from bringing claims based on EU law, on the ground that they were contrary to the right of access to a court guaranteed by article 47 of the EU Charter. The claims based on discrimination and harassment and breaches of the Working Time Regulations were accordingly allowed to proceed. Leave to appeal to the Court of Appeal was granted, inter alia, in order to enable it to consider whether to make a declaration of incompatibility under section 4 of the Human Rights Act 1998. This led to the joinder of the Secretary of State under section 5 of the Human Rights Act 1998 so as to participate in the appeal. The Court of Appeal affirmed the judgment of the EAT, disapplying the relevant provisions so far as they applied to the EU law claims. It also made a declaration of incompatibility affecting all the claims, whether founded on domestic or EU law.
Sudan elected not to participate in the proceedings before the Court of Appeal and has not appealed to this court. Ms Benkharbouche was represented in the Court of Appeal but has not appeared before us. Libya participated in the proceedings in the Court of Appeal, but although it was granted permission to appeal to this court, it has not been permitted to pursue the appeal because it has failed to comply with an order of this court for security for costs. In those circumstances, the effective participants in the appeal to this court have been the Secretary of State, who appeals in both cases, and Ms Janah. We have also received written and oral submissions on behalf of the AIRE centre, and written submissions on behalf of 4A Law. It is agreed that Ms Janah's appeal raises all of the issues in either case, but I shall refer from time to time to Ms Benkharbouche's position also.
I propose first to examine the provisions of the State Immunity Act and then the requirements of the Human Rights Convention, before turning to the relationship between the Act and the international law of state immunity.
Before 1978, state immunity was governed in the United Kingdom by the common law. Properly speaking, it comprised two immunities whose boundaries were not necessarily the same: an immunity from the adjudicative jurisdiction of the courts of the forum, and a distinct immunity from process against its property in the forum state. During the second half of the nineteenth century, the common law had adopted the doctrine of absolute immunity in relation to both. The classic statement was that of Lord Atkin in Compania Naviera Vascongada v S S Cristina (The Cristina) [1938] AC 485, 490:
"The courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages."
By 1978, however, the position at common law had changed as a result of the decisions of the Privy Council in The Philippine Admiral [1977] AC 373 and the Court of Appeal in Trendtex Trading Corpn v Central Bank of Nigeria [1977] QB 529. These decisions marked the adoption by the common law of the restrictive doctrine of sovereign immunity already accepted by the United States and much of Europe. The restrictive doctrine recognised state immunity only in respect of acts done by a state in the exercise of sovereign authority ( jure imperii), as opposed to acts of a private law nature ( jure gestionis). Moreover, and importantly, the classification of the relevant act was taken to depend on its juridical character and not on the state's purpose in doing it save in cases where that purpose threw light on its juridical character: Playa Larga (Owners of Cargo Lately Laden on Board) v I Congreso del Partido (Owners) [1983] 1 AC 244.
Before the adoption of the restrictive doctrine at common law, the United Kingdom had signed a number of treaties limiting the scope of state immunity in particular respects. It was a signatory to the International Convention for the Unification of Certain Rules concerning the Immunity of State-owned Ships (Brussels, 1926), which restricted the immunity of state-owned trading vessels. It had also signed the European Convention on State Immunity (Basle, 1972), a regional treaty drawn up under the auspices of the Council of Europe which identified specified categories of acts done by foreign states in the territory of the forum state which would not attract immunity. These treaties were concerned mainly with acts of a kind which would generally not attract immunity under the restrictive doctrine. But neither of them sought to codify the law of state immunity or to apply the restrictive doctrine generally. In addition, they have attracted limited international support. The Brussels Convention of 1926 has attracted 31 ratifications to date. The Basle Convention of 1972 has to date been ratified by only eight of the 47 countries of the Council of Europe.
One purpose of the State Immunity Act 1978 was to...
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