BENKHARBOUCHE v. THE UNITED KINGDOM and 1 other application

Communicated on 17 September 2019

FIRST SECTION

Applications nos. 19059/18 and 19725/18
Fatima BENKHARBOUCHE against the United Kingdom
and Mina JANAH against the United Kingdom
lodged on 13 April 2018 and 13 April 2018 respectively

STATEMENT OF FACTS

1.  The applicant in the first case, Ms Fatima Benkharbouche, is a Moroccan national who was born in 1964 and lives in London. She is represented before the Court by Ms S. Newman, a lawyer practising in London.

2.  The applicant in the second case, Ms Mina Janah, is a Moroccan national who was born in 1967 and lives in London. She is represented before the Court by Ms A. Gibbs of SaltWorks Law, a lawyer practising in London.The circumstances of the cases

3.  The facts of the cases, as submitted by the applicants, may be summarised as follows.

4.  Both applicants are Moroccan nationals who were employed at sovereign embassies in London.

5.  The applicant in the first case started working for the Sudanese Embassy in Iraq in the 1980s. In 2000 she moved to the United Kingdom to work as a housekeeper/cook to the ambassador at the Sudanese Embassy in London. She went back to Iraq in 2002 and returned to the embassy in London in 2005. On 25 January 2010 the applicant was granted Indefinite Leave to Remain in the United Kingdom. However, on 27 November 2010 her employment at the embassy was terminated summarily.

6.  The applicant in the second case came to the United Kingdom on 2 November 2005 to work as a domestic worker and nanny in the household of the Cultural Attaché at the Libyan Embassy in London. She worked at a number of residences connected to the embassy but she was dismissed by letter dated 24 January 2012.

7.  The applicants both brought claims against their employers but in each instance the Employment Tribunal accepted the employer’s plea of state immunity and decided that it had no jurisdiction to hear the claim. The relevant legislation was the State Immunity Act 1978 (“the 1978 Act”). The 1978 Act renders a foreign state immune from the jurisdiction of a United Kingdom court in a claim based on the foreign state’s employment of the claimant, where the claimant either, at the time of the contract, was neither a United Kingdom national nor habitually resident in the United Kingdom (section 4(2)(b) of the 1978 Act); or works for the foreign state’s diplomatic mission (section 16(1)(a) of the 1978 Act).The proceedings before the Employment Tribunal

(a)   The applicant in the first case

8.  Following her dismissal, the applicant brought claims against the embassy for damages for failure to pay the National Minimum Wage, unfair dismissal, wrongful dismissal, failure to provide an itemised pay statement, failure to provide written reasons for dismissal and breach of the Working Time Regulations 1998. A schedule of loss submitted by the applicant valued her claims as follows (in pounds sterling):

Unfair dismissal37,229.93

Minimum wage168,761.07

Working Time Regulations (annual leave)4,264.44

Working Time Regulations (weekly rest)TBA

Wrongful dismissal1,428.38

9.  Default judgment was entered into on 20 May 2011 after the respondent failed to submit a Response Form and a remedy hearing was listed for 14 June 2011. The parties subsequently made submissions on the question of state immunity. In particular, the respondent argued that the Tribunal did not have jurisdiction to hear the claim because of the operation of section 16(1) of the 1978 Act. Article 4(2)(b) of the 1978 Act was not in issue as there had been no finding regarding the applicant’s place of habitual residence at the date the contract was entered into.

10.  The remedy hearing was postponed and converted to a pre-hearing review to consider the issue.

11.  The pre-hearing review took place on 7 October 2011 and the Tribunal deliberated in Chambers on 24 November 2011, 23 February 2012 and 26 March 2012. The applicant argued first, that to allow a State to rely on immunity from legal proceedings in such a case would contradict the Human Rights Act 1998 (and Article 6 of the Convention) because it did not afford her a fair hearing to determine her employment dispute; and secondly, that her claim involved rights within the scope of EU law which would be frustrated if the 1978 Act was applied. She submitted that the Tribunal, if sympathetic to her arguments, had three options available to it: to read down the literal wording of section 16(1) of the 1978 Act so as to avoid the conclusion that her claim was barred; to refuse to apply section 16(1) on the ground that it was contrary to Article 47 of the Charter of Fundamental Rights of the European Union; or make a provisional finding that the claim appeared to be barred but stay it pending an appeal to the Court of Appeal in order to obtain a declaration of incompatibility under section 4 of the Human Rights Act 1998.

12.  The Employment Tribunal gave judgment on 10 April 2012. Having regard to the case-law of the Strasbourg Court (in particular, Cudak v. Lithuania [GC], no. 15869/02, ECHR 2010 and Sabeh El Leil v. France [GC], no. 34869/05, 29 June 2011), and the private law nature of the applicant’s employment relationship, the Tribunal accepted that a human rights issue was engaged. However, it could not issue a declaration of incompatibility under section 4 of the Human Rights Act 1998 and, in its view, it could not use its powers under section 3 of the Human Rights Act 1998 to read down the provisions of the 1978 in a way that would completely change, and possibly even reverse, its meaning.

13.  The Tribunal further found that it was not open to it to ignore the 1978 Act because an EU right was engaged in an employment dispute.

Having accepted the respondent’s assertion of state immunity, the Tribunal stayed the applicant’s claim pending her appeal to the Court of Appeal.

(b)   The applicant in the second case

14.  Following her dismissal the applicant in the second case brought claims against the embassy for unfair dismissal, failure to pay the minimum wage, failure to provide the documents required by Part 1 of the Employment Rights Act (written statement of their particulars of employment), breach of the Working Time Regulations 1998 and unlawful discrimination/harassment on the grounds of race. The comparative value of her claims was estimated as follows (in pounds sterling):

Working Time Regulations 1,012.34

Minimum Wage149,347.79

Unfair dismissal72,230.40

ERA1,704

15.  A pre-hearing review took place on 5 November 2012 to determine whether the respondent would be entitled to immunity from the applicant’s claims by operation of section 16(1) and (as the applicant had been found not to have been habitually resident in the United Kingdom at the date of the contract) section 4(2)(b) of the 1978 Act. It was agreed that the issues before the Employment Tribunal were: whether the barring of the applicant’s claims would be contrary to Article 6 and/or Article 14 of the Convention; whether the Tribunal should “read down” the literal wording of the 1978 Act to avoid the conclusion that her claims were barred; insofar as the applicant’s claims involved rights within the material scope of EU law, whether the Tribunal could disapply the relevant sections of the 1978 Act on the ground that they were contrary to Article 47 of the Charter of Fundamental Rights of the European Union; and, if the Tribunal did not “read down” or disapply the relevant sections of the 1978 Act, whether it should make a provisional finding that it had no jurisdiction to hear the claim and either stay it pending an appeal by the applicant or dismiss it.

16.  The Employment Tribunal gave judgment on 14 November 2012. At the outset, it noted that the applicant had “effectively conceded” that her claim was barred by the 1978 Act.

17.  Having regard to the Strasbourg case-law (in particular, Cudak and Sabeh El Leil, both cited above), it concluded that as regards the respondent’s state immunity under section 16(1) of the 1978 Act, Article 6 of the Convention was both applicable and had been breached, since the applicant had not herself participated in acts involving the governmental authority of Libya and to invoke immunity would be disproportionate to the aim of protecting its functions as a State. The Tribunal did not consider itself to be in a position to make a finding that there had also been breaches of Articles 6 or 14 in respect of section 4(2) of the 1978 Act.

18.  Nevertheless, the Tribunal considered that “reading down” section 16(1) of the 1978 Act as suggested by the applicant would effectively reverse the effect of the section and cross the boundary between interpretation and amendment. It therefore declined to do so. It further found that the applicant had failed to make out her case that the 1978 Act should be disapplied as being contrary to EU law.

19.  In conclusion, the Tribunal held that the respondent’s assertion of state immunity should succeed, but stayed the claim pending the applicant’s appeal to the Employment Appeal Tribunal.The proceedings before the Employment Appeal Tribunal

20.  Both applicants appealed to the Employment Appeal Tribunal, which heard the two cases together. The applicants argued that the employment judges had erred in law in applying state immunity in circumstances where it was not necessary to protect a foreign state in the discharge of its sovereign functions in the host state, and in failing to hold that the 1978 Act should be disapplied in respect of employment rights falling within the material scope of European Union law. They submitted first, that it was impossible to interpret the legislation compatibly with Article 6 of the Convention read alone or together with Article 14; and secondly, that Article 47 of the EU Charter created directly effective rights and, pursuant to section 2 of the European Communities Act 1972, legislation incompatible with the fundamental rights contained therein could and should be disapplied.

21.  It was not in dispute that the 1978 Act on its face granted the respondent Governments procedural immunity from suit. Rather, it fell to the Tribunal to decide whether the applicants’ claims came within the Convention rights invoked; if so, whether the statutory provisions were open to an interpretation which secured those civil rights and obligations; and, if not, whether the statutory provisions could be set aside.

22.  In a judgment dated 4 February 2013, the Tribunal found that there was a breach of Article 6 of the Convention in so far as section 16(1) of the 1978 Act was concerned. It had greater hesitation in accepting the applicants’ argument that there was also a breach of Article 14 read together with Article 6 in relation to section 4(2)(b) of the 1978 Act, since before and during the currency of the ILC Draft Articles it was considered, as a matter of customary international law, that a rational distinction could properly be drawn between nationals of the host country and others with no connection by residence with the host country. However, the Employment Appeal Tribunal was prepared to assume for the purpose of argument that there was also a breach of Articles 6 and 14 in so far as section 4(2)(b) was concerned.

23.  That being said, the Tribunal considered that the essential principle and scope of the 1978 Act was to restrict a right of access to the court in a situation in which it would otherwise be available. As such, there was no interpretive scope for altering the criteria defined.

24.  Insofar as the applicants’ claims fell within the material scope of EU law, however, the Tribunal considered itself bound by the current state of authority to hold that the relevant provisions of the 1978 Act should be disapplied. For the applicant in the first case, this meant that insofar as she complained about a breach of the Working Time Regulations 1998, the provisions of section 16(1) of the 1978 Act were to be disapplied; and for the applicant in the second case, insofar as she complained about racial discrimination and harassment, and breaches of the Working Time Regulations 1998, sections 16(1) and 4(2)(b) of the 1978 Act were to be disapplied.

25.  The appeal was therefore allowed to this extent.The proceedings before the Court of Appeal

26.  The applicants were granted permission to appeal to the Court of Appeal to permit them to seek a declaration of incompatibility in respect of those parts of their claims which fell outside the material scope of EU law. Libya cross-appealed but the Republic of Sudan took no part in the proceedings before the Court of Appeal. The Secretary for State for Foreign and Commonwealth Affairs exercised his right to be joined as a party to the appeals.

27.  The Court of Appeal handed down its judgment on 5 February 2015. In considering whether Article 6 was engaged, the Court of Appeal observed that the Strasbourg Court had taken a different approach to the national courts in cases involving state immunity. The national courts had taken the view that Article 6 was not engaged, since the grant of immunity was required by international law and Article 6 could not confer on Contracting States a jurisdiction that they would not otherwise possess, nor could it have conferred a jurisdiction denied by general international law in such a way as to be binding on non-Contracting States. However, the Strasbourg Court had accepted that Article 6 was engaged in such cases. While the court considered it “unfortunate” that Strasbourg had not grappled with these considerations, it did not consider it necessary to choose between the competing approaches in this case, as under the Strasbourg jurisprudence the debate concerning the applicable rules of international law were transferred to a later stage of the analysis and addressed in the context of Article 6. Moreover, the Strasbourg Court had acknowledged that there was a margin of appreciation in relation to limiting access to courts which permitted states to act on their own views as to the extent of their obligations under public international law.

28.  The court went on to find that a rule the breadth of section 16(1)(a) of the 1978 Act was not required by international law and was not within the range of tenable views of what was required by international law. In this regard, it found nothing in the European Convention on State Immunity 1972, the Vienna Convention on Diplomatic Relations 1961, the United Nations International Law Commission Draft Articles on Jurisdictional Immunities of States and Their Property 1991 (“the ILC Draft Articles”), Article 11 of the United Nations Convention on Jurisdictional Immunities of States and their Property 2004 (see section on International Law and Practice below) or state practice which would enable it to conclude that there was any rule of international law which required the grant of immunity in respect of employment claims by members of the service staff of a mission in the absence of some special feature, such as where the claim was for the recruitment, renewal of employment or reinstatement of an individual or where the proceedings would interfere with the security interests of the state. It considered this conclusion to be supported by Professor Garnett in “The precarious position of embassy and consular employees in the United Kingdom “(2005) 54 ICLQ 705, in which he found that the United Kingdom was 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; and by the CJEU in Ahmed Mahamdia v People’s Democratic Republic of Algeria (see section on European Union law below).

29.  It further held that section 4(2)(b) of the 1978 Act was discriminatory on grounds of nationality and that no such limitation to the exception to immunity was required by customary international law, nor was it within the range of reasonably tenable opinion within the margin of appreciation granted to states in the assessment of their international obligations. While a similar provision could be found in Article 5 of the European Convention on State Immunity, the court noted that, whereas section 4(2)(b) was a rule of general application, certain other states which were party to the European Convention applied Article 5(2) only where both the forum state and the state claiming immunity were party to it. Moreover, although Article 11 of the ILC Draft Articles had contained a similar provision, that text was not included in the UN Convention on Jurisdictional Immunities of States and their Property 2004, apparently because it was contrary to the principle of non-discrimination based on nationality.

30.  Turning to remedies, the court agreed with the Employment Appeal Tribunal that the relevant provisions of the 1978 Act could not be read down. It therefore made a declaration of incompatibility to the effect that section 16(1)(a), in its application to the claims brought by the applicants, infringed Article 6 of the Convention; and that section 4(2)(b), in its application to the claims brought by the applicants, infringed Articles 6 and 14 of the Convention.

31.  In respect of the EU Charter, the court held that the right to an effective remedy guaranteed by Article 47 was a general principle of EU law and accordingly it had horizontal direct effect. As such, the court was required to disapply section 4(2)(b) and section 16(1)(a) of the 1978 Act in respect of those parts of the claims which fell within the scope of EU law.The proceedings before the Supreme Court

32.  Libya and the Secretary for State for Foreign and Commonwealth Affairs were granted permission to appeal against the judgment of the Court of Appeal. However, Libya was subsequently barred from proceeding in the appeal after failing to comply with an order to give security for costs. The applicant in the second of the two cases participated in the appeal proceedings but the applicant in the first case did not.

33.  The Supreme Court unanimously dismissed the appeal on 18 October 2017. In determining whether sections 4(2)(b) and 16(1) of the 1978 Act were incompatible with Article 6 of the Convention and Article 47 of the EU Charter, it considered the relevant test to be whether or not they were consistent with a rule of customary international law that denied the English court jurisdiction in such cases. However, the court considered that the only consensus to be found in customary international law was in favour of a “restrictive doctrine”, whereby immunity was limited to acts by a state in the exercise of sovereign authority and not to acts of a private law nature. As such, there was no basis in customary international law for the application of state immunity in an employment context to acts of a private law character (such as the employment of purely domestic staff in a diplomatic mission). It followed that neither section 4(2)(b) nor section 16(1) could be justified by any principle of international law and, accordingly, they were incompatible with Article 6 of the Convention and Article 47 of the Charter.

34.  Lord Sumption JSC, with whom Baroness Hale of Richmond PSC, Lord Wilson, Lord Neuberger of Abbotsbury and Lord Clarke of Stone-cum-Ebony agreed) held:

“64.  Under the terms of the [1978] Act, contracts of employment are excluded from the ambit of section 3, which applies the distinction between sovereign acts and acts of a private law character to other contracts for the supply of services. Section 4 by comparison identifies those contracts of employment which attract immunity by reference to the respective connections between the contract or the employee and the two states concerned. In principle, immunity does not attach to employment in the local labour market, ie where the contract was made in the United Kingdom or the work fell to be performed there: see section 4(1). However, this is subject to sections 4(2)(a) and (b), which are concerned with the employee’s connections by nationality or residence with the foreign state (section 4(2)(a)) or the forum state (section 4(2)(b)). Section 4(2)(a) extends the immunity to claims against the employing state by its own nationals. As I have said, this may have a sound basis in customary international law, but does not arise here. Section 4(2)(b) extends it to claims brought by nationals or habitual residents of third countries. Both subsections apply irrespective of the sovereign character of the relevant act of the foreign state.

65.  Sections 4(2)(a) and (b) are derived from article 5.2(a) and (b) of the European Convention on State Immunity. Like section 4 of the Act, article 5 of the Convention deals with contracts of employment without reference to the distinction between acts jure imperii and jure gestionis which are the basis of the restrictive doctrine of immunity. Contractual submission apart, the availability of state immunity in answer to employment claims is made to depend entirely on the location of the work and the respective territorial connections between the employee on the one hand and the foreign state or the forum state on the other. The explanatory report submitted to the Committee of Ministers of the Council of Europe justified this on the ground that ‘the links between the employee and the employing State (in whose courts the employee may always bring proceedings), are generally closer than those between the employee and the State of the forum.’

66.  The United Kingdom is not unique in applying this principle. Seven other European countries are party to the European Convention on State Immunity and six other countries have enacted legislation containing provisions similar to section 4(2) of the United Kingdom Act. But this is hardly a sufficient basis on which to identify a widespread, representative and consistent practice of states, let alone to establish that such a practice is accepted on the footing that it is an international obligation. The considerable body of comparative law material before us suggests that unless constrained by a statutory rule the general practice of states is to apply the classic distinction between acts jure imperii and jure gestionis, irrespective of the nationality or residence of the claimant. Indeed, the courts of a significant number of jurisdictions have refused to apply the immunity as between states which are not both party to the Convention, unless they performed functions directly related to the exercise of the state’s sovereign authority, on the ground that the requirements of general international law differed on this point from those of the Convention ...

67.  I conclude that section 4(2)(b) of the State Immunity Act 1978 is not justified by any binding principle of international law.

...

69.  Since section 16(1)(a) extends state immunity to the claims of any employee of a diplomatic mission, irrespective of the sovereign character of the employment or the acts of the state complained of, it is plain that it cannot be justified by reference to any general principle of immunity based on the restrictive doctrine. It could be justified only if there were a special rule, in effect an absolute immunity, applicable to embassy staff. I have already pointed out, in the context of section 4(2)(b), that in jurisdictions where the courts determine claims to immunity by reference to customary international law, the test is whether the relevant acts of the state were exercises of sovereign authority. The analysis need not be repeated here. It is inconsistent with any suggestion that immunity can attach to all embassy staff as such.”

35.  Insofar as the applicant in the second case had complained that section 4(2)(b) was incompatible with Article 14 of the Convention, Lord Sumption said:

“Ms Janah’s case that the discriminatory character of section 4(2)(b) of the Act is a violation of article 14 of the Human Rights Convention, read in conjunction with article 6, adds nothing to her case based on article 6 alone. Section 4(2)(b) unquestionably discriminates on grounds of nationality. The only question is whether the discrimination is justifiable by reference to international law. If state immunity is no answer to the claim under article 6 alone, then it is no answer to the claim under the combination of article 6 and article 14. In my view, the denial of access to the courts to persons in her position is unjustifiable whether it is discriminatory or not.”

36.  In disposing of the case, the Supreme Court did not consider it necessary to decide whether a decision of a domestic court that a state is entitled to immunity engaged Article 6 of the Convention at all. Lord Sumption acknowledged that this was an area where the House of Lords and the Strasbourg Court had disagreed in Jones and Others v. the United Kingdom, nos. 34356/06 and 40528/06, ECHR 2014, but in his view:

“there may well come a time when this court has to choose between the view of the House of Lords and that of the European Court of Human Rights on this fundamental question. But the premise on which the question arises is that there is a rule of international law which denies the English court jurisdiction in the instant case. In both Jones and Lampen-Wolfe, the Appellate Committee had satisfied itself that there was. I would not be willing to decide which of the competing views about the implications of a want of jurisdiction is correct, unless the question actually arose.”Subsequent developments

37.  The result of the Supreme Court judgment was that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 did not apply to the applicants’ claims derived from EU law. The two cases were therefore remitted to the Employment Tribunal to determine the claims based on EU law on their merits.

38.  By a settlement agreement dated 22 January 2019, Sudan agreed to pay the applicant in the first case the sum of GBP 10,000 in settlement of her claim under the Working Time Regulations. The settlement agreement expressly stated that it did not compromise or in any way affect the applicant’s claim for damages against the United Kingdom before the European Court of Human Rights for damages in respect of those domestic law claims which were barred by the 1978 Act (being the claim for damages for failure to pay the National Minimum Wage, unfair dismissal, wrongful dismissal, failure to provide an itemised pay statement, and failure to provide written reasons for dismissal).

39.  On 13 August 2018, Libya agreed to pay the applicant in the second case GBP 1,012.34 together with costs in settlement of her claim under the Working Time Regulations 1998. She withdrew her discrimination/harassment claim in light of the Supreme Court judgment in Taiwo v. Olaigbe [2016] UKSC 31, which found that discrimination on grounds of immigration status did not amount to discrimination on grounds of race or nationality actionable under the Equality Act 2010.

40.  According to the Ministry of Justice’s Report to the Joint Committee on Human Rights on the Government’s response to Human Rights judgments 2017–2018, dated November 2018, the Government is still considering its response to the declaration of incompatibility.Relevant domestic law and practiceThe State Immunity Act 1978

41.  The relevant provisions provide as follows:

“1(1)  A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this part of this Act.

...

3(1)  A State is not immune as respects proceedings relating to -

(a)  a commercial transaction entered into by the State;

(b)  an obligation of the State which by virtue of a contract (whether a commercial transaction or not) falls to be performed wholly or partly in the United Kingdom.

...

(3)  In this section “commercial transaction” means -

(a)  any contract for the supply of goods or services;

(b)  any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and

(c)  any other transaction or activity (whether of a commercial industrial, financial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority;

but neither paragraph of subsection (1) above applies to a contract of employment between a State and an individual.

4(1)  A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there.

(2)  Subject to subsections (3) and (4) below, this section does not apply if -

(a)  at the time when the proceedings are brought the individual is a national of the State concerned; or

(b)  at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or

(c)  the parties to the contract have otherwise agreed in writing.

...

16(1)  This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968; and

(a)  section 4 above does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the members of a consular post within the meaning of the Convention scheduled to the said Act of 1968.”

42.  The Convention scheduled to the Diplomatic Privileges Act of 1964 is the Vienna Convention on Diplomatic Relations (1961). Article 1 of that Convention defines “members of a mission” as including the “staff of the mission in the domestic service of the mission”.The Human Rights Act 1998

43.  The Human Rights Act provides, insofar as relevant:

“3  Interpretation of legislation

(1)  So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2)  This section—

(a)  applies to primary legislation and subordinate legislation whenever enacted;

(b)  does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c)  does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

4  Declaration of incompatibility

(1)  Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2)  If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

(3)  Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.

(4)  If the court is satisfied—

(a)  that the provision is incompatible with a Convention right, and

(b)  that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,

it may make a declaration of that incompatibility.”Relevant case-law

44.  In Ghaidan v. Godin-Mendoza [2004] 2 AC 557 the House of Lords addressed the question of the way in which the word “possible” in the expression “[s]o far as it is possible to do so” in section 3 of the Human Rights Act 1998 was to be interpreted. Lord Nicholls of Birkenhead stated that:

“[T]he conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is ‘possible’, a court can modify the meaning, and hence the effect, of primary and secondary legislation.

Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, ‘go with the grain of the legislation’. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation.”Relevant international lawThe United Nations

(a)   United Nations International Law Commission Draft Articles on Jurisdictional Immunities of States and Their Property 1991

45.  The relevant part of the text reads as follows:

Article 11 – Contracts of employment

“1.  Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.

2.  Paragraph 1 does not apply if:

(a)  the employee has been recruited to perform functions closely related to the exercise of governmental authority;

(b)  the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;

(c)  the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded;

(d)  the employee is a national of the employer State at the time when the proceeding is instituted; or

(e)  the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject matter of the proceeding.”

46.  In the commentary on the ILC’s Draft Articles, it was stated that the rules formulated in Article 11 appeared to be consistent with the trend in the legislative and treaty practice of a growing number of States (ILC Yearbook, 1991, Vol. II, Part 2, p. 44, paragraph 14).

(b)   The United Nations Convention on Jurisdictional Immunities of States and their Property 2004

47.  In December 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property. The Draft Articles were used as the basis for the text. The final version of Article 11, as set out in the Convention, reads as follows:

“I.  Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.

2.  Paragraph I does not apply if:

(a)  the employee has been recruited to perform particular functions in the exercise of governmental authority ;

(b)  the employee is:

(i)  a diplomatic agent, as defined In the Vienna Convention on Diplomatic Relations of 1961;

(ii)  a consular officer, as defined In the Vienna Convention on Consular Relations of 1963;

(iii)  a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or

(iv)  any other person enjoying diplomatic immunity;

(c)  the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;

(d)  the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State;

(e)  the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or

(f)  the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.”

48.  To date, twenty-eight states have signed the Convention, including the United Kingdom, and twenty-one have ratified it, not including the United Kingdom. Libya and Sudan have neither signed nor ratified it. It will not come into force until it has been ratified by thirty states.

(c)   The Vienna Convention on Diplomatic Relations 1961

49.  Article 7 of the Vienna Convention provides that:

“Subject to the provisions of articles 5, 8, 9 and 11, the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attachés, the receiving State may require their names to be submitted beforehand, for its approval.”The Council of Europe

50.  The European Convention on State Immunity, which entered into force on 11 June 1976 (on 4 October 1979 in the United Kingdom), provides as follows:

“Article 5

1.  A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum.

2.  Paragraph 1 shall not apply where:

(a)  the individual is a national of the employing State at the time when the proceedings are brought;

(b)  at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State; or

(c)  the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject-matter.

3.  Where the work is done for an office, agency or other establishment referred to in Article 7, paragraphs 2.a and b of the present article apply only if, at the time the contract was entered into, the individual had his habitual residence in the Contracting State which employs him.

...

Article 15

A Contracting State shall be entitled to immunity from the jurisdiction of the courts of another Contracting State if the proceedings do not fall within Articles 1 to 14; the court shall decline to entertain such proceedings even if the State does not appear.

...

Article 32

Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.”

51.  In its comments on Article 5, the Explanatory Report indicates that

“This article concerns contracts of employment. A distinction has been drawn between contracts of employment and other contracts (Article 4) because in certain circumstances it may be justifiable to accord immunity to a defendant State under a contract of employment particularly when the employee is a national of the employing State (see paragraph 2, subparagraph (a)). The same is true when the employee is a national neither of the State for whom be works, nor of the State where he works, and where the contract of employment was not concluded on the territory of the latter State namely where the employee is a foreign worker who has not been locally recruited (see paragraph 2, sub-paragraph (b)). In both cases the links between the employee and the employing State (in whose courts the employee may always bring proceedings), are generally closer than those between the employee and the State of the forum.”European Union lawThe Charter of Fundamental Rights of the European Union

52.  Article 47 of the Charter provides:

“Right to an effective remedy and to a fair trial

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”

53.  Article 52(3) provides as follows:

“In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”Åklagaren v. Hans Åkerberg Fransson (Case C-617/10 ECLI:EU:C:2013:105)

54.  In this case the Swedish court had referred the question whether a provision of national law requiring there to be clear support in the Convention or case-law of the Strasbourg Court for disapplying national provisions which might infringe the “no double jeopardy” principle was compatible with EU law. The CJEU confirmed that:

“it is settled case-law that a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of European Union law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such a provision by legislative or other constitutional means. ...

Any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of European Union law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent European Union rules from having full force and effect are incompatible with those requirements, which are the very essence of European Union law. ...

Furthermore, in accordance with Article 267 TFEU, a national court hearing a case concerning European Union law the meaning or scope of which is not clear to it may or, in certain circumstances, must refer to the Court questions on the interpretation of the provision of European Union law at issue. ...48. It follows that European Union law precludes a judicial practice which makes the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the Charter conditional upon that infringement being clear from the text of the Charter or the case-law relating to it, since it withholds from the national court the power to assess fully, with, as the case may be, the cooperation of the Court of Justice, whether that provision is compatible with the Charter.”Ahmed Mahamdia v. People’s Democratic Republic of Algeria (Case C‑154/11 ECLI:EU:C:2012:491)

55.  Mr. Mahamdia, who had both Algerian and German nationality, was employed as a driver in the Algerian embassy in Berlin. His contract contained a clause conferring exclusive jurisdiction, if there was a dispute, on the Algerian courts. He brought proceedings against Algeria in the Berlin Labour Court for unpaid overtime and dismissal. Algeria contended that the German courts had no jurisdiction, relying on both state immunity and the exclusive jurisdiction clause. The Higher Labour Court referred two questions to the CJEU for a preliminary ruling. One of the questions asked whether the embassy of a non-member state, which was situated in a member state, was a “branch, agency or establishment” for the purposes of Article 18(2) of the Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“the Brussels Regulation”). The other question related to the effect of the exclusive jurisdiction clause. In considering the first question of customary international law on state immunity, the CJEU held that:

“it must be observed that under the generally accepted principles of international law concerning immunity from jurisdiction a State cannot be sued before the court of another State in a dispute such as that in the main proceedings. Such immunity of States from jurisdiction is enshrined in international law and is based on the principle par in parem non habet imperium, as a State cannot be subjected to the jurisdiction of another State.

However, as the Advocate General observes in points 17 to 23 of his Opinion, in the present state of international law, that immunity is not absolute, but is generally recognised where the dispute concerns sovereign acts performed iure imperii. It may be excluded, by contrast, if the legal proceedings relate to acts performed iure gestionis which do not fall within the exercise of public powers.

Consequently, in view of the content of that principle of customary international law concerning the immunity of States from jurisdiction, it must be considered that it does not preclude the application of Regulation No 44/2001 in a dispute, such as that in the main proceedings, in which an employee seeks compensation and contests the termination of a contract of employment concluded by him with a State, where the court seised finds that the functions carried out by that employee do not fall within the exercise of public powers or where the proceedings are not likely to interfere with the security interests of the State. On the basis of that finding, the court seised of a dispute such as that in the main proceedings may also consider that that dispute falls within the material scope of Regulation No 44/2001.”

COMPLAINTS

56.  The applicants complain under Article 6 of the Convention that state immunity was granted in circumstances which did not reflect a generally recognised rule of international law.

57.  The applicant in the second case further complains under Article 14 read together with Article 6 of the Convention that section 4(2)(b) of the 1978 Act treated her differently to United Kingdom nationals who were seeking to pursue a similar claim.

QUESTIONS TO THE PARTIES

1.  Did a declaration of incompatibility afford the applicants an “effective remedy” for the alleged breach of their Convention rights?

2.  Was there any other remedy available to the applicants for the alleged breach of their Convention rights?

3.  Has there been a breach of the applicants’ rights under Article 6 of the Convention by virtue of the grant of state immunity?

4.  With regard to the applicant in the second case, has there been a breach of her rights under Article 14 read together with Article 6?

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