Ms C Reyes and Ms T Suryadi v Mr J Al-Malki and Mrs Al-Malki Secretary of State for Foreign and Commonwealth Affairs (1st Intervener) Kalayaan (2nd Intervener) 4A Law (3rd Intervener)

JurisdictionEngland & Wales
JudgeLady Justice Arden,Lord Justice Lloyd Jones,Master of the Rolls
Judgment Date05 February 2015
Neutral Citation[2015] EWCA Civ 32
Docket NumberCase No: A2/2013/3061
CourtCourt of Appeal (Civil Division)
Date05 February 2015
Between:
Ms C Reyes and Ms T Suryadi
Appellants
and
Mr J Al-Malki and Mrs Al-Malki
Respondents
Secretary of State for Foreign and Commonwealth Affairs
1st Intervener
Kalayaan
2nd Intervener
4A Law
3rd Intervener

[2015] EWCA Civ 32

Before:

Lord Dyson, MASTER OF THE ROLLS

Lady Justice Arden

and

Lord Justice Lloyd Jones

Case No: A2/2013/3061

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

The Hon. Mr Justice Langstaff, President

UKEAT/0403/12/GE

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Timothy Otty QC and Mr Paul Luckhurst (instructed by ATLEU at Islington Law Centre) for the Appellants

Sir Daniel Bethlehem QC and Mr Sudhanshu Swaroop (instructed by Reynolds Porter Chamberlain LLP) for the Respondents

Mr Tim Eicke QC and Ms Jessica Wells (instructed by The Treasury Solicitor) for the 1st Intervener

Dr Tom Hickman (instructed by Deighton Pierce Glynn) for the 2nd Intervener

Mr Arfan Khan and Mr Tahir Ashraf (instructed by 4A Law) for the 3 rd Intervener

Hearing dates: 24 th–27 th November 2014

Master of the Rolls

Master of the Rolls:

1

In 2011, the claimants were employed as domestic workers by the respondents, a Saudi diplomatic agent and his wife. The claimants worked at the first respondent's official diplomatic residence. The UK Visas and Immigration ("UKV1"), which is a division of the Home Office, has determined that both women are the victims of trafficking. The respondents have now left the UK.

2

Ms Reyes (who is a Philippine national) worked for the respondents from the date of her arrival in the UK on 11 January 2011 until 14 March 2011, when she left with the assistance of the police. The respondents then replaced Ms Reyes with Ms Suryadi (who is an Indonesian national). She worked for the respondents from the date of her arrival in the UK on 16 May 2011 until 19 September 2011, when she left the residence whilst Mr Al-Malki was away and Mrs Al-Malki was asleep.

3

Both claimants made claims to the Employment Tribunal ("ET") alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage. The proceedings were served by post on the respondents' solicitors and by post to their private residence. The respondents claimed diplomatic immunity pursuant to articles 31 and 37 of the Vienna Convention on Diplomatic Relations ("the 1961 Convention") which is incorporated into English law by virtue of section 2 of the Diplomatic Privileges Act 1964 ("the 1964 Act").

4

Article 31(1)(c) of the 1961 Convention lies at the heart of this appeal. It provides:

"A diplomatic agent shall….enjoy immunity from the receiving State's civil and administrative jurisdiction, except in the case of:

(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions."

5

Four issues arise on this appeal. These are: (i) whether, applying the principles of interpretation set out in the Vienna Convention on the Law of Treaties 1969 ("the VCLT"), a contract of employment entered into by a serving diplomatic agent with a domestic worker is to be characterised as "commercial activity exercised by the diplomatic agent in the receiving State outside his official functions" and is therefore within the exception to diplomatic immunity contained in article 31(1)(c) of the 1961 Convention; (ii) if not, whether granting a serving diplomat immunity in respect of a claim under a contract of employment with a domestic worker in accordance with article 31(1) of the 1961 Convention constitutes a breach of article 6 of the European Convention on Human Rights ("the ECHR"); and (iii) whether, on the assumption that Ms Reyes is able to prove that she was trafficked, granting immunity to a serving diplomat constitutes a breach of article 4 of the ECHR; and (iv) whether, regardless of the issue of immunity, a diplomat also has immunity from formal service of proceedings.

6

The claimants were successful before the ET. Judge Lewis held that "the exception under art 31(1)(c) of the Vienna Convention, read consistently with art 6 of the European Convention on Human Rights, applied". On appeal to the Employment Appeal Tribunal ("EAT"), Langstaff J (President) upheld the claim to immunity. He held first that the activity of employing a domestic worker was not within the scope of the Mr Al-Malki's official functions as a diplomat (the claimant having conceded for the purposes of the appeal to the EAT that this was not a "commercial activity"). Secondly, the assertion of diplomatic immunity in the present case was not in breach of article 6 of the ECHR. Thirdly, the ET's jurisdiction, being statutory, did not extend to the investigation of trafficking and therefore the claim based on article 4 of the ECHR would be rejected. Fourthly, he held that service had been validly effected: by post on the respondents' solicitors, who were already acting for them, and/or by post to the respondents' residence.

7

Ms Reyes appeals against the EAT's decision, seeking a restoration of the ET's finding that "the first and second respondents do not have diplomatic immunity from the claims". The respondents cross-appeal against the decision on the issue of service. Ms Suryadi had ceased to take part in the appeal by the time of the hearing.

Article 31(1)(c) of the 1961 Convention

8

Mr Otty QC submits that the proceedings fall with the scope of article 31(1)(c) of the 1961 Convention. There are several strands to his argument. First (and at its most basic level), he says that a contract of employment by a diplomatic agent of a person to provide domestic services is "commercial activity". He also (and separately) says that it is activity "outside [the diplomatic agent's] official functions". Secondly, and in any event, he says that a contract to employ such a person where he or she is the victim of trafficking is a "commercial activity outside his official functions". He submits that both of these conclusions are reached by giving the language of article 31(1)(c) its natural and ordinary meaning, taking account of other material provisions of the 1961 Convention to which I shall refer later. Thirdly, he submits that this interpretation is supported by (i) the common law principle that statutes (in this case, the 1964 Act) are to be interpreted in a manner which is consistent with the United Kingdom's obligations in international law; (ii) the statutory interpretative obligation imposed by section 3 of the Human Rights Act 1998 ("the HRA") by reference to articles 4 and 6 of the ECHR that, so far as it is possible to do so, primary legislation "must be read and given effect in a way which is compatible with the [ECHR] rights"; (iii) the statutory interpretative obligation flowing as a matter of European Union law from section 2(1) of the European Communities Act and article 47 of the Charter of Fundamental Rights of the European Union ("the Charter"); and (iv) a proper application of the interpretative principles set out in the Vienna Convention on the Law of Treaties ("VCLT").

9

I prefer to start with the question of whether, on a proper application of the interpretative principles set out in the VCLT, an ordinary contract of employment between a diplomat and a domestic worker for the provision of domestic services at the diplomat's official residence is a "commercial activity" without reference to any other principles of interpretation. By "ordinary contract of employment", I mean a contract which is not infected by trafficking.

10

Article 31 of the VCLT provides, so far as material:

"1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."

Ordinary meaning

11

I shall start with ordinary meaning. The first instance decision of Laws J in Propend Finance Pty Ltd v Sing (1997) 111 ILR 611 is the only domestic authority to have addressed the meaning of "commercial activity" in article 31(1)(c). Laws J referred to article 42 of the 1961 Convention which provides:

"A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity."

12

He said (at p.635) that the phrase "professional or commercial activity" means the same in article 42 as in article 31(1)(c) and continued:

"….the phrase refers to activity which might be carried on by the diplomat on his own account for profit; such "professional" activity would arise, for example, in the perhaps unlikely event that the diplomat was a qualified doctor who engaged in some medical practice during his tour of duty".

He added that the very rationale of article 31(1)(c) is to ensure that no immunity enures for the benefit of a diplomat where for one reason or another his activities do not comply with the article 42 prohibition.

13

This approach has been adopted in the United States where the leading authority is Tabion v Mufti 73F. 3d, 535 (4th Cir, 1996), 107 ILR 452 (United States). In that case, the appellant worked as a domestic servant in the home of the respondent diplomats. The appellant brought proceedings claiming damages for breach of the terms of her contract of employment. The court held that the commercial activity exception to diplomatic immunity under article 31(1)(c) did not apply. Mr Otty submits that Tabion is of little assistance as an authority outside the United States because (i) the US State Department indicated in a "statement of interest" that "commercial activity" "focuses...

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