State Immunity Act 1978 (Remedial) Order 2022

Monday 9th January 2023 Grand Committee

Considered in Grand Committee

16:56

Moved by

[Lord Goldsmith of Richmond Park]

That the Grand Committee do consider the State Immunity Act 1978 (Remedial) Order 2022.

Relevant document: 7th Report from the Joint Committee on Human Rights

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

My Lords, I beg to move that the Committee has considered the State Immunity Act 1978 (Remedial) Order 2022. This instrument, which is subject to the procedure set out in Schedule 2 to the Human Rights Act 1998, was laid before Parliament in draft on 7 September 2022. It will be made once it is approved by both Houses. The instrument responds to the declaration of incompatibility in the judgment of the Supreme Court in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs.

This remedial order amends the State Immunity Act 1978 to allow a category of claimants to bring claims against their diplomatic mission or consular post employers. The remedial order will remove the incompatibility identified by the Supreme Court of the State Immunity Act with Articles 6 and 14 of the European Convention on Human Rights. It will apply from the date of the Benkharbouche decision in the Supreme Court on 18 October 2017.

Four former employees of diplomatic missions—Benkharbouche, Janah, Buttet and Ahmed—have been pursuing cases against His Majesty’s Government in the European Court of Human Rights, on the grounds that the incompatibility prevented them from bringing employment claims against their employer states. One case has recently been settled, and one was dismissed by the court. In the other two, His Majesty’s Government conceded and, in determining adequate redress, the court found fault with the extended delay for His Majesty’s Government to lay the remedial order.

The remedial order has been pending for some time, having been announced in the Written Ministerial Statement from the noble Lord, Lord Ahmad, of February 2021, following the judgment in 2017. This order will prevent further claims against the Foreign, Commonwealth and Development Office. The order will apply from the date of the declaration of incompatibility which, as I said, is 18 October 2017. The Government are aware of approximately 55 other claims against diplomatic missions in London working their way through the courts; the order would allow such historic cases to be brought before the employment tribunal and reduce the risk of future claims succeeding.

I thank the Joint Committee on Human Rights for both of its reports on the proposed order. The Government responded to the Committee’s first report in September 2022. In November 2022, the Government noted the contents of the second report and are grateful to the Committee for recommending that Parliament approve the remedial order.

To conclude, state immunity derives from the principle of sovereign equality of states. This principle, enacted in the UK by the State Immunity Act 1978, is based in part on the European Convention on State Immunity 1972, to which the UK is a party. The State Immunity Act 1978 contains a number of exceptions which recognise the distinction between a state’s actions of a sovereign character, such as making treaties, and actions of a commercial nature, such as buying goods and services or employing some staff. The intention of the order is to ensure the UK’s legal obligations are in line with international law and thus ensure that claims can be brought against the relevant states and thus prevent further claims against the UK. This should mitigate any potential future risk to the Government. I commend the order to the Committee.

[Baroness Northover (LD)]

My Lords, I thank the Minister for introducing this order, which we support. As he says, this order relates to how foreign states are granted immunity from prosecution for employment claims brought against them by workers in embassies based in the UK. He referred to the Supreme Court decision in 2017 which concluded that the UK was in effect granting more immunity than was internationally required. Thus certain categories of employees, such as domestic workers, were wrongfully denied the right to take their cases to court, which was incompatible with the European Convention on Human Rights.

17:00

The first thing that struck me about that was why it had taken five years for anything to be done about this. Were the Government perhaps distracted by something? It cannot have been Covid, given that that started in 2020, so what could it have been? Did Brexit, the merger of DfID or something else distract the FCDO? Clearly, something needed to be done here, and it was fairly straightforward, yet it took five years for it to happen. I note that in September the FCDO stated that this delay was “sub-optimal”. That is one way of putting it. We hear that the FCDO is committed to working with the Ministry of Justice to ensure that procedures are put in place to mitigate the risk that this could happen again. Could the noble Lord elaborate?

The Joint Committee on Human Rights noted and condemned the delay. In fact, when the Government pushed back and indicated that they did not have an obligation to sort this out, the committee itself rightly pushed back hard, pointing out that:

“The Government should be mindful of its legal obligations to respect human rights, both under UK law and under international law.”

It went on to say that the UK does have legal obligations and that Government Ministers have obligations under the Ministerial Code to comply with international human rights law and legal obligations flowing from it—and I am sure that the noble Lord, Lord Ahmad, would fully agree. Therefore, to the extent that a declaration of incompatibility, for example, makes it clear that the UK is in broach of its legal obligations, the committee concluded that

“the UK Government has a duty to take action to address such failings and to give effect to its legal obligations to respect and protect the human rights of people in the UK.”

The committee also recommended that

“better procedures should be put in place, with a structured system for setting timescales and methods, in agreement between Parliament and the Government, for addressing situations where UK laws are known to breach the human rights of people in the UK.”

The committee also flagged some other concerns, in particular about how “sovereign authority” might be applied to employment, possibly including domestic workers or drivers, for example. The FCDO has explained why it did not feel the need to change the draft order, and the Joint Committee seems content that the order goes ahead as it is here. However, could the Minister summarise why the Government felt that they did not need to alter the draft order to address these other concerns so that those points are on the record?

The Joint Committee also requested that the Foreign Secretary should remain vigilant and, where relevant, proactively review the state of UK law which gives effect to immunities so that these immunities do not go further than the extent necessary, and therefore do not unjustifiably interfere with human rights in the UK. Can the Minister comment, and how will this be done?

I am sure that the last thing his colleague, the noble Lord, Lord Ahmad—I believe that he is in the Chamber at the moment—would want as Human Rights Minister is for those employed in the United Kingdom by embassies to have their rights abused, and it seemed that a number of cases are currently under consideration. The delay in this order has obviously damaged the position that some of these people would have been in or are in. Can he tell us how many cases are currently under consideration, and the main embassies that these relate to? It will be in the public domain. I look forward to the Minister’s response.

[Lord Collins of Highbury (Lab)]

My Lords, I echo the noble Baroness’s comments. Obviously, state immunity is a principle of international law which I am sure that the whole Committee supports, but we do not believe that it should be unnecessarily extended. That is why we are here today considering this remedial order.

As the noble Baroness pointed out, it is nearly a year since Nigel Adams, the Minister for Asia at the time, announced this order being placed—and, of course, it is five years since the Supreme Court judgment. The delay has consequences, which clearly need to be addressed. I certainly echo the noble Baroness’s comments on the Joint Committee’s report, but I shall make a couple of points on that report that she did not address—it may be being dealt with elsewhere.

I refer to the recommendations on paragraphs 59 and 62 about consequential actions once the order has been addressed. I am particularly concerned, if guidance is to be issued, about whether that guidance is ready. I hope that it will not be delayed. Could the Minister also reassure me that appropriate consultation will take place or has taken place on any draft guidance for how we exercise sovereign authority in relation to employment contracts—and, as it says in paragraph 62, in relation to what amounts to being

“conduct in the exercise of sovereign authority”?

That is a really important element of consequences of this action.

I pick up the point that the Minister mentioned on the retrospective element of the order. What assessment has the department made of the number of potential cases that may emerge? It is not just a question of known cases. This is a window that could—be exploited is not the right word—give people the opportunity to raise cases that previously have not be raised. Can the Minister give us a proper assessment of that?

Finally, echoing the questions of the noble Baroness, Lady Northover, what assessment have we made of the decision of the European Court of Human Rights in relation to the two cases where, despite the Government saying that they acknowledged that there had been a breach of the articles, it was felt that the compensation was totally inadequate? Does that have implications? First, can we be given an assessment as to why that sort of compensation was deemed to be inadequate? Secondly, does that also have implications for the retrospective element of the order?

In conclusion, I repeat what the noble Baroness has said. We welcome this provision, which is overdue—but it is here, and we certainly support its implementation, as reflected in the Joint Committee’s report. We welcome it and hope that it will be implemented speedily. I hope that the Minister will be able to answer my specific questions about the consultation that will take place on any guidance that is issued.

[Lord Goldsmith of Richmond Park (Con)]

I thank noble Lords for their contributions and very much welcome their support for the remedial order. I shall address the questions raised by the noble Lord, Lord Collins, and the noble Baroness, Lady Northover, around the delay. We responded to the criticism in the committee’s first report by acknowledging that the delay was suboptimal. We have committed to work with the Ministry of Justice on procedures to mitigate the risk that this could happen again.

The judgment of incompatibility was delivered in 2017, as has been noted. While there is no set timeframe to address such incompatibilities, a delay of five years is clearly not ideal. However—I do not say this as an excuse, but it is certainly a factor—the preceding five years have been busy, with unprecedented pressures on parliamentary time, ministerial time and officials, not least of course as a consequence of the pandemic.

The committee’s second report picks up on this issue. Paragraph 48 notes that it is awaiting confirmation of the detail of those procedures. It further notes that they should be put in place for all government departments and that it is unclear how the Government’s intention for a Secretary of State to notify Parliament when an adverse judgment is received would address the committee’s concerns. The Government have existing procedures in place through which they engage regularly with the staff of the Joint Committee on Human Rights to discuss plans to respond to judgments identifying incompatibilities in legislation. We believe this engagement should be sufficient to allay the committee’s concerns.

The noble Baroness, Lady Northover, and the noble Lord, Lord Collins, raised potential guidance to employers and employees. As the Committee knows, the committee suggested that the Government consider issuing guidance for employers and employees on two areas: first, what amounts to entering into a contract in the exercise of sovereign authority; and, secondly, what amounts to state conduct in the exercise of sovereign authority for the purposes of the Act.

The Government have considered the committee’s comments and we understand the concerns raised that employers and employees should have greater certainty about what counts as sovereign authority in these areas. However, on balance, we do not consider it appropriate for the Government to issue guidance here, because it is ultimately for the courts to interpret these provisions based on the cases that come before them.

I note none the less that the Government broadly agree with the views set out by Lord Sumption in his judgment in the Benkharbouche case to the effect that, in general, purely domestic staff of a diplomatic or consular mission are unlikely to be employed based on contracts entered into as an exercise of sovereign authority and that dismissing an employee for reasons of state security would constitute state conduct in the exercise of sovereign authority.

The noble Lord, Lord Collins, asked how many cases the Government expect to see. I mentioned in my opening comments that there are 55 known cases, but we just do not know how many other cases there might be. I have asked my colleagues, but we do not have a number in the department; the unknowns are, I am afraid, unknown. However, as I said, there are 55 known cases and I think we can extrapolate from that.

I confirm that the order will apply from the date of the declaration of incompatibility, namely 18 October 2017. As I said, the Government are aware of approximately 55 other claims against diplomatic missions in London working their way through the courts. The order would allow those cases to be brought before the employment tribunal. Further delay in bringing the remedial order into force increases the risk of future claims against the FCDO succeeding.

I reiterate my thanks to those present for their support for this order and their insightful contributions—

[Lord Collins of Highbury (Lab)]

I hear what the department’s view is in relation to guidance but my question was not simply about whether guidance would be issued; it was about whether it was felt necessary by the department or appropriate departments to consult worker organisations or, for that matter, foreign embassies. Has there been any consultation on whether such guidance might be necessary?

[Lord Goldsmith of Richmond Park (Con)]

I note the noble Lord’s point. The Government’s view is that it is not necessary for the Government to produce that guidance. Therefore, I do not believe—I will need to check this afterwards—that there has been a consultation. Were guidance to be issued, then of course there would need to be a process, and that would include consultation. However, because of the position the Government have taken, I do not believe there has been such consultation. I hope that answers the noble Lord’s question. If I am wrong, I will get back to him in writing. In the meantime, I hope the Committee will support this order.

Motion agreed.