The State Immunity Act 1978 (Remedial) Order 2023
| Jurisdiction | UK Non-devolved |
| Citation | SI 2023/112 |
| Year | 2023 |
2023 No. 112
International Immunities And Privileges
The State Immunity Act 1978 (Remedial) Order 2023
Made 2nd February 2023
Coming into force 23th February 2023
The immunity of a state in 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 here, as well as in proceedings concerning the employment of members of a diplomatic mission (including its administrative, technical and domestic staff) has been declared1under section 4 of the Human Rights Act 19982to be incompatible with a Convention right3.
The Secretary of State considers that there are compelling reasons for proceeding by way of remedial order4to make such amendments to the State Immunity Act 19785as she considers necessary to remove the incompatibility.
In accordance with paragraph 2(a) of Schedule 2 to the Human Rights Act 1998, a draft of this instrument was laid before Parliament and was approved by resolution of each House of Parliament, a document containing a draft of this instrument having previously been laid before Parliament in accordance with paragraph 3(1) of that Schedule.
Accordingly, the Secretary of State, in exercise of the powers conferred by section 10(2) of, and paragraph 1(1)(a), (1)(b) and (3) of Schedule 2 to, the Human Rights Act 1998, makes the following Order:
Citation, commencement, extent and application
1.—(1) This Order may be cited as the State Immunity Act 1978 (Remedial) Order 2023 and comes into force 21 days after the day on which this Order is made.
(2) This Order extends to England and Wales, Scotland and Northern Ireland.
(3) This Order applies in relation to proceedings in respect of a cause of action that arose on or after 18 October 2017 (whether those proceedings were initiated before, on or after the day on which this Order is made).
Amendments of the State Immunity Act 1978
The State Immunity Act 1978 is amended as follows.
2. The State Immunity Act 1978 is amended as follows.
3. In section 4 (State not immune as respects proceedings relating to certain contracts of employment)—
(a) in subsection (2) (exceptions) in paragraph (b) at the beginning insert6“the State concerned is a party to the European Convention on State Immunity6and”, and
(b) omit subsection (6).
4.—(1) Section 13 (other procedural privileges) is amended as follows.
(2) After subsection (2) insert—
“
2A Subject to subsection (3) below—
(a) where, on a complaint under section 111 of the Employment Rights Act 19967, an employment tribunal finds that a member of the staff of a diplomatic mission or a member of the consular staff of a consular post was unfairly dismissed, relief shall not be given against the State concerned by way of an order under section 113 of that Act; and
(b) where, on a complaint under Article 145 of the Employment Rights (Northern Ireland) Order 19968, an industrial tribunal finds that a member of the staff of a diplomatic mission or a member of the consular staff of a consular post was unfairly dismissed, relief shall not be given against the State concerned by way of an order under Article 147 of that Order.
(3) In subsection (3) for “Subsection (2) above does” substitute “Subsections (2) and (2A) above do”.
(4) After subsection (6) insert—
“
7 In subsection (2A) above—
“member of the consular staff of a consular post” is to be construed in accordance with Article 1(h) of the Vienna Convention on Consular Relations done at Vienna on 24 April 1963; and
“member of the staff of a diplomatic mission” is to be construed in accordance with Article 1(c) of the Vienna Convention on Diplomatic Relations done at Vienna on 18 April 1961.
5.—(1) Section 16 (excluded matters) is amended as follows.
(2) In subsection (1) for paragraph (a) substitute—
“
(a)
(a) section 4 above does not apply to proceedings relating to a contract of employment between a State and an individual if the individual is or was employed under the contract as a diplomatic agent or consular officer;
(aa)
(aa) section 4 above does not apply to proceedings relating to a contract of employment between a State and an individual if the individual is or was employed under the contract as a member of a diplomatic mission (other than a diplomatic agent) or as a member of a consular post (other than a...
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