Al-Malki and Another v Reyes

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Sumption,Lord Neuberger,Lord Wilson,Lady Hale,Lord Clarke
Judgment Date18 October 2017
Neutral Citation[2017] UKSC 61

[2017] UKSC 61

THE SUPREME COURT

Michaelmas Term

On appeal from: [2015] EWCA Civ 32

before

Lord Neuberger

Lady Hale

Lord Clarke

Lord Wilson

Lord Sumption

Reyes
(Appellant/Cross-Respondent)
and
Al-Malki and another
(Respondents/Cross-Appellants)

Appellant/Cross-Respondent

Timothy Otty QC

Paul Luckhurst

(Instructed by ATLEU)

Respondents/Cross-Appellants

Sir Daniel Bethlehem KCMG QC

Sudhanshu Swaroop QC

(Instructed by Reynolds Porter Chamberlain LLP)

Intervener (Kalayaan)

(Written submissions only)

Richard Hermer QC

Tom Hickman

Flora Robertson

Philippa Webb

(Instructed by Deighton Pierce Glynn)

Intervener (Secretary of State for Foreign and Commonwealth Affairs)

(Written submissions only)

Ben Jaffey QC

Jessica Wells

(Instructed by The Government Legal Department)

Heard on 15, 16 and 17 May 2017

Lord Sumption

( with whom Lord Neuberger agrees)

Introduction
1

Ms Reyes, a Philippine national, was employed by Mr and Mrs Al-Malki as a domestic servant in their residence in London between 19 January and 14 March 2011. Her duties were to clean, to help in the kitchen at mealtimes and to look after the children. At the time, Mr Al-Malki was a member of the diplomatic staff of the embassy of Saudi Arabia in London. Ms Reyes alleges that she entered the United Kingdom on a Tier 5 visa which she obtained at the British embassy in Manila by producing documents supplied by Mr Al-Malki, including a contract showing that she would be paid £500 per month. She alleges that during her employment the Al-Malkis maltreated her by requiring her to work excessive hours, failing to give her proper accommodation, confiscating her passport and preventing her from leaving the house or communicating with others; and that they paid her nothing until after her employment terminated upon her escape on 14 March. The proceedings have been conducted to date on the assumption, which has been neither proved nor challenged, that these allegations are true. I shall also make that assumption. In addition, I shall assume that these allegations amount to trafficking in persons within the meaning of the International Protocol to Prevent, Supress and Punish Trafficking in Persons, Especially Women and Children (Palermo, 2000), although that is very much in dispute.

2

In June 2011, Ms Reyes began the present proceedings in the Employment Tribunal alleging direct and indirect race discrimination, unlawful deduction from wages and failure to pay her the national minimum wage. The Court of Appeal has held that the Employment Tribunal has no jurisdiction because Mr Al-Malki was entitled to diplomatic immunity under article 31 of the Vienna Convention on Diplomatic Relations, and Mrs Al-Malki was entitled to a derivative immunity under article 37(1) as a member of his family.

3

The main issues on the appeal concern the effect of article 31(1)(c) of the Convention, which contains an exception to the immunity of a diplomat from civil jurisdiction where the proceedings relate to "any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions." This raises, among other issues, the question how, if at all, that exception applies to a case of human trafficking. Since there is some evidence that human trafficking under cover of diplomatic status is a recurrent problem, this is a question of some general importance. Its broader significance explains the intervention, by leave of this court, of the Secretary of State for Foreign and Commonwealth Affairs and of Kalayaan, a charity that supports migrant domestic workers, some of whom have been trafficked. For the same reason, I shall deal fully with the issues that were argued in the Court of Appeal and before us, although not all of them arise on the conclusions that I have reached.

4

In my opinion, the employment of a domestic servant to provide purely personal services is not a "professional or commercial activity exercised by the diplomatic agent". It is therefore not within the only relevant exception to the immunities. The fact that the employment of Ms Reyes may have come about as a result of human trafficking makes no difference to this. But the appeal should be allowed on a different and narrower ground. On 29 August 2014, Mr Al-Malki's posting in London came to an end and he left the United Kingdom. Article 31 confers immunity only while he is in post. A diplomatic agent who is no longer in post and who has left the country is entitled to immunity only on the narrower basis authorised by article 39(2). That immunity applies only so far as the relevant acts were performed while he was in post in the exercise of his diplomatic functions. The employment and maltreatment of Ms Reyes were not acts performed by Mr Al-Malki in the exercise of his diplomatic functions.

The legal framework
5

The legal immunity of diplomatic agents is one of the oldest principles of customary international law. Its history can be traced back to the practices of the ancient world and to Roman writers of the second century. "The rule has been accepted by the nations," wrote Grotius in the 17th century, "that the common custom which makes a person who lives in foreign territory subject to that country, admits of an exception in the case of ambassadors": De Jure Belli ac Pacis, ii. 18. But, although recognition of diplomatic immunity is all but universal in principle, until relatively recently both states and writers differed on the categories of people to which the immunity applied and its precise ambit in each category. In particular, they differed on the existence and extent of any exceptions. In Britain, the matter was dealt with by the Diplomatic Privileges Act 1708, which conferred absolute immunity on ambassadors and their staff from civil jurisdiction, in accordance with what British authorities regarded as the rule of international law. In Triquet v Bath (1764) 3 Burrow 1478, 1480, Lord Mansfield described the Act as declaratory of the law of nations, and it remained in force until 1964. The United States adopted the British Act in 1790, and France adopted a corresponding rule by legislation in 1794. In other countries, however, exceptions of greater or lesser breadth were recognised, among others for private transactions relating to title to real property, certain employment disputes and liabilities arising out of business activities in the receiving state. There were also differences about the application of the immunity to diplomatic agents of a sending state who were nationals of the receiving state.

6

These differences gave rise to a number of attempts during the 19th and 20th centuries to codify the law of diplomatic relations with a view to achieving a common set of rules and enabling them to operate on a reciprocal basis. The Havana Convention among the states of the Pan-American Union (1928) and the influential draft convention drawn up by the Harvard Law School (1932) were notable examples. But there was no universally accepted code before 1961. The Vienna Convention on Diplomatic Relations, which was adopted in that year, has been described by Professor Denza, the leading academic authority on the law of diplomatic relations, as "a cornerstone of the modern international order": Diplomatic Law, 4th ed (2016), 1. It has been perhaps the most notable single achievement of the International Law Commission of the United Nations. The text was the result of an intensive process of research, consultation and deliberation extending from 1954 to 1961. Draft articles were submitted to the governments of every member state of the United Nations, and were subject to detailed review and comment. Eighty one states participated in the final conference at Vienna in March and April 1961 which preceded the adoption of the final text. Since its adoption, it has been ratified by 191 states, being every state in the world bar four (Palau, the Solomon Islands, South Sudan and Vanuatu). A number of states ratified subject to declarations or reservations, but none of these related to the articles which are primarily relevant on this appeal. As it stands, the Convention provides a complete framework for the establishment, maintenance and termination of diplomatic relations. It not only codifies pre-existing principles of customary international law relating to diplomatic immunity, but resolves points on which differences among states had previously meant that there was no sufficient consensus to found any rule of customary international law.

7

As the International Court of Justice has pointed out ( Democratic Republic of the Congo v Belgium (Arrest Warrant of 11 April 2000) [2002] ICJ Rep 3, at paras 59–61), diplomatic immunity is not an immunity from liability. It is a procedural immunity from the jurisdiction of the courts of the receiving state. The receiving state cannot at one and the same time receive a diplomatic agent of a foreign state and subject him to the authority of its own courts in the same way as other persons within its territorial jurisdiction. But the diplomatic agent remains amenable to the jurisdiction of his own country's courts, and in important respects to the jurisdiction of the courts of the receiving state after his posting has ended. I do not underestimate the practical problems of litigating in a foreign jurisdiction, especially for someone in Ms Reyes' position. Nor do I doubt that diplomatic immunity can be abused and may have been abused in this case. A judge can properly regret that it has the effect of putting severe practical obstacles in the way of a claimant's pursuit of justice, for what may be truly wicked conduct. But he cannot allow his regret to whittle away an immunity sanctioned by a fundamental principle of national and international law. As the fourth recital of the Vienna Convention points out, "the purpose of such...

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