Court of Appeal strikes down state immunity rules that prevent embassy employees seeking justice – Diarmuid Laffan
15 February 2015
Benkharbouche & Anor v Embassy of the Republic of Sudan  EWCA Civ 33, 5th February 2015 – read judgment
This judgment concerned the conjoined appeals of Ms. Benkharbouche and Ms. Janah which arose from employment law claims brought against, respectively, the Sudanese and Libyan embassies. Certain of their claims, such as those for unfair dismissal, were founded on domestic law. Others, such as those under the Working Time Regulations 1998, fell within the scope of EU law. All were met with pleas of state immunity under the State Immunity Act 1978.
The Court of Appeal’s judgment provides a neat illustration of the relative remedial potency, on the one hand of human rights claims based on the European Convention on Human Rights by way of the Human Rights Act 1998, and on the other, those based on the EU Charter of Fundamental Rights via the doctrine of ‘horizontal direct effect’.
In the Employment Appeal Tribunal, Langstaff J held that the absolute immunity provided by the State Immunity Act 1978 (the ‘Act’) breached the claimants’ rights of access to justice under Article 6 of the Convention. However, he felt unable to interpret the Act so as to render it compatible with the Convention, in line with s.3 HRA, and lacked jurisdiction to make a declaration of incompatibility under s.4. He went on to find that Article 47 of the Charter (the Charter’s analogue for Article 6) required him to disapply the Act with respect to the EU law claims, which could therefore proceed.
On appeal, the appellants sought the declarations of incompatibility unavailable before the EAT, while Libya cross-appealed Langstaff J’s substantive findings.
Section 1(1) of the State Immunity Act provides foreign states with a general immunity from suit before the UK courts subject to the Act’s provisions. Section 4(2)(b) provides an exception to the general immunity whereby the employee of a foreign state can bring an employment claim in the UK if they are either (1) a UK national, or (2) habitually resident in the UK when their contract was formed.
It was common ground that Ms. Janah did not satisfy the second criterion in s.4(2)(b), while Ms. Benkharbouche’s status in this regard had not been determined by the EAT. Furthermore, both appellants’ claims were blocked by s.16(1)(a) of the Act. This affords a foreign state immunity in respect of employment law claims brought by any member of the staff of its diplomatic mission to the UK, including service staff who unlike, say, diplomats, cannot be said to participate in the foreign state’s sovereign functions.
The Court of Appeal’s decision
The Court of Appeal began by examining the compliance s.16(1)(a) with Article 6 of the Convention. There is an established line of Strasbourg jurisprudence which holds that restrictions on the access to court of embassy staff engage Article 6, but can be justified with reference to “the legitimate aim of complying with international law to promote comity and good relations between States” (Sabah El Seil v France (2012) 54 EHRR 14, at ).
Thus the Court of Appeal framed its examination of the Act’s proportionality as follows:
…it seems to us that if a state adopts a rule restricting access to the court which it is not required by international law to adopt, there is a violation of Article 6 ECHR unless the rule otherwise meets the requirements for the limitation of that right. 
The international and comparative law material placed before the Court showed a diversity of practice across states and international instruments. The Court of Appeal noted that while there are other states such as South Africa that afford immunities as broad as s.16(1)(a), the general international trend is towards the restriction of state immunity. It also summarised (with apparent approval) the view of Professor Garnett to the effect that
the United Kingdom is almost alone among developed countries in continuing to deprive embassy employees occupying subordinate positions of rights of redress in the event of any dispute arising in respect of their employment .
On s.16(1)(a), the Court concluded that an immunity of such breadth, which obstructs low-level staff such as the appellants from bringing claims that do not touch issues sensitive to their employer states, was not within “the range of tenable views of what is required by international law” and was, hence, an infringement of Article 6 . The Court went on to carry out a similar comparative law exercise with respect to s.4(2)(b), which requires an individual to be either British or British-resident when they are hired in order to benefit from the section’s exception to the general state immunity. In doing so, it placed especial emphasis on the fact that a similarly structured provision was dropped from the final text of the UN Convention on Jurisdictional Immunities for States and their Properties 2004, as it was considered contrary to the principle of non-discrimination on grounds of nationality, one of the cornerstones of international law. As there was no established body of international practice consistent with s.4(2)(b), it similarly constituted a breach of Article 6 in conjunction with Article 14 of the Convention .
Turning to remedy, the Court agreed with Langstaff J that sections 4(2)(b) and 16(1)(a) of the Act could not be interpreted in line with their findings, without the reading in of meanings fundamentally at odds with the structure of the statutory scheme (applying Ghaidan v Godin-Medoza  2 AC 557). Instead, the Court granted the declaration of incompatibility sought by the appellants.
As far as the claims under EU law were concerned, it was common ground before the Court of Appeal that, so far as relevant to the instant case, Article 47 of the Charter had the same substantive content as Article 6 of the Convention. Hence a breach of Article 6 entailed a breach of Article 47. This is in with Article 52(3) of the Charter which states that where there are corresponding Charter and Convention rights, the Charter right will have same meaning and scope as the Convention right, subject to EU law potentially granting a higher level of protection. It was also uncontroversial that certain of the appellants’ claims fell squarely within the scope of EU law.
The only outstanding issues for the Court to determine were as to whether:
- Article 47 has ‘horizontal direct effect’ such that the Appellants could rely upon it against states which are not member states of the EU or EU institutions (and which were thus equivalent to private parties for the purposes of the EU law claims); and
- The Court should disapply sections 16(1)(a) and 4(2)(b).
The Court of Appeal’s analysis on horizontal effect was based on the recent progression of the fundamental rights jurisprudence of the Court of Justice of the European Union. In Case C-144/04 Mangold v Helm  ECR I-9981, the CJEU found that the general EU law principle of non-discrimination could be invoked by an employee against their employer, such that national legislation creative of a discriminatory contractual clause was disapplied. Next came Case C-555/07 Küküdeveci v Swedex  IRLR 346, where the Court made a similar finding, this time with explicit reference to the embodiment of the principle of non-discrimination in Article 21 of the Charter, thus opening up the prospect of judicial review founded on the Charter. The outstanding issue at that point was the question as to whether all of the various rights and principles contained in the Charter are capable of deployment between private parties. In Case C-176/12 Association de Mediation Sociale  ECR I-000 the CJEU indicated that those Charter rights which require implementation by way of national or EU legislation are not capable of having horizontal direct effect, as they lack the requisite clarity, precision and unconditionally to ground standalone claims.
In light of this jurisprudence, and somewhat unsurprisingly given its familiarity with judicial review founded on Article 6, the Court of Appeal concluded that the right of access to justice contained in Article 47 of the Charter was sufficiently precise to have horizontal direct effect . On this basis the Court disapplied ss. 4(2)(b) and 16(1)(a)
to the extent necessary to enable employment claims (other than for recruitment, renewal or reinstatement) falling within the scope of EU law by members of the service staff, whose work does not relate to the sovereign functions of the mission staff.
The Court of Appeal’s judgment provides another example of the progressive erosion of the harder edges of the doctrine of state immunity through human rights law – for a more prominent recent example of this trend, see the Court of Appeal’s judgment in Belhaj & Boudchar v Straw & Others  EWCA Civ 1394. Insofar as this development helps individuals like the claimants in this case who are, somewhat arbitrarily, deprived of access to justice, it can only be a good thing. To some eyes, Protocol 30 to the Lisbon Treaty could be read as an attempt to prevent exactly the kind of Charter-based judicial review carried out in Benkharbouche. It is interesting to recall in this context the comments of Mostyn J in (R(AB) v Secretary of State  EWHC 3453 (Admin), at :
The Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the European Convention on Human Rights. Some parts were deliberately missed out by Parliament. The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more. Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed.
In any event it is clear, since the judgment of the CJEU in R(NS (Afghanistan)) v Secretary of State  QB 102, that the Charter is fully applicable in the UK. As Rosalind English has commented in this blog, there is some way to go before it is worked out exactly which Charter rights are cognizable in claims between private parties and which are not. In the meantime, Benkharbouche shows the courts are likely to be relatively comfortable in applying Charter rights which correspond with the Convention rights they know so well, effectively creating, within the scope of EU law, a human rights act with real teeth.
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