Draft State Immunity Act 1978 (Remedial) Order 2022
(1 year, 4 months ago)
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The Parliamentary Under-Secretary of State for Foreign, Commonwealth and Development Affairs (David Rutley)
I beg to move,
That the Committee has considered the draft State Immunity Act 1978 (Remedial) Order 2022.
It is an honour to serve once again with you in the Chair, Mr Gray. This draft statutory instrument, which is subject to the procedure set out in schedule 2 to the Human Rights Act 1998, was laid before Parliament on 7 September 2022. It will be made once it has been approved by both Houses. It responds to the declaration of incompatibility in a judgment of the Supreme Court in the case of Benkharbouche v. Secretary of State for Foreign and Commonwealth Affairs.
State immunity derives from the principle of the sovereign equality of states. The principle is enacted in the UK by the State Immunity Act 1978. The Act contains a number of exceptions, which recognise the distinction between a state’s actions of a sovereign character, such as making treaties, and its actions of a commercial nature, such as buying goods and services or employing some staff. [Interruption.]
The Chair
Order. The hon. Member for Birmingham, Hall Green should know that you do not walk in front of the Chair.
David Rutley
The State Immunity Act as drafted, however, removed from those general exceptions individuals employed by diplomatic missions and consular posts, and certain other employees. The draft remedial order will amend the 1978 Act, importantly, to allow a category of claimants to bring claims against their diplomatic mission or consular mission employers.
I note that the Government broadly agree with the views set out by Lord Sumption in his judgment in the Benkharbouche case, to the effect that as a general matter, purely domestic staff are unlikely to be in employment related to sovereign authority, but that dismissing an employee for reasons of state security would relate to sovereign authority. The remedial order will apply from the date of the Benkharbouche decision in the Supreme Court on 18 October 2017.
Four former employees of foreign diplomatic missions in the UK who were domestic workers have been pursuing cases against His Majesty’s Government in the European Court of Human Rights in relation to this matter. They allege that the 1978 Act prevented them from bringing employment claims against their employer states. One case was settled recently, one was dismissed by the Court, and His Majesty’s Government conceded the other two.
The European Court of Human Rights, in determining adequate redress, found fault with the Government for delaying a remedial order. We recognise that the delay has not been optimal. The Government, however, are aware of approximately 55 other claims against diplomatic missions in London working their way through the courts. Approving the order today will therefore allow such historical cases and future cases to be brought before an employment tribunal rather than against the Foreign, Commonwealth and Development Office. That is why it is important for the order to be approved.
I thank the Joint Committee on Human Rights for both its reports on the issue. The Government responded to the first in September and, last month, we noted the contents of the second. I am grateful to the Joint Committee for recommending that Parliament approve the draft remedial order.
In conclusion, as I have set out, the intention of the draft order is to ensure that the UK’s legal obligations are in line with international law. It will ensure that claims can be brought against foreign states that employ certain staff in the UK, and that future risk for His Majesty’s Government is mitigated. I commend the order to the Committee.
Bambos Charalambous (Enfield, Southgate) (Lab)
It is a pleasure to serve under your chairmanship, Mr Gray, to discuss this important draft remedial order. I hope not to detain the Committee for long, so soon after recess. The Opposition will support the order.
The purpose of the draft instrument is relatively simple in that it makes targeted amendments to the 1978 Act to ensure that it is fully compatible with our domestic human rights legislation. As the Minister set out, the need for the remedial order follows the significant Supreme Court judgment in the confined employment cases of Benkharbouche and Janah. When coming to their judgment in 2017, the Supreme Court judges found the Act to be incompatible with the European convention on human rights as it grants greater immunity to foreign states than is actually required by customary international law.
In particular, the Supreme Court found that the Act violated article 6 of the European convention on human rights—the right to a fair trial—by preventing access for certain categories of employees, such as domestic workers, to bring a claim against their employer. The Court also found the Act to be in breach of article 14—prohibition of discrimination—as it unjustifiably denies access to bringing a claim based on a claimant’s nationality. The remedial order seeks to correct those two incompatibilities by making targeted changes to the 1978 Act to ensure that it is fully compatible with our human rights legislation.
Before we discuss how the order seeks to ensure that compatibility, I will summarise the context of the two Supreme Court cases that made it necessary. Both the Benkharbouche and Janah cases relate to employment claims brought by domestic workers against foreign embassies in London. The Janah case involves a Moroccan national who was employed as a domestic worker at the Libyan embassy in London. After getting into a dispute with her employers, Janah made a claim before the employment tribunal for various breaches of employment law, including the failure to pay her the national minimum wage and breaches of the working time regulations.
The Benkharbouche case is similar. Again, it involves a Moroccan national, who was employed as a domestic worker at the Sudanese embassy in London. Like Janah, she made a claim before the employment tribunal for various breaches of employment law, including unfair dismissal and failure to pay her wages. When both claims were considered by the lower courts, the majority of the claims were dismissed on the basis that the 1978 Act granted their employers automatic immunity as a result of being diplomatic missions. The lower courts also dismissed Ms Janah’s claims on the basis that she was neither a UK national nor habitually resident in the UK at the time that she made her claim before the employment tribunal.
When both cases came to be considered by the Supreme Court, it unanimously found that the 1978 Act was unlawful as it prevented all employees of foreign embassies bringing claims for compensation against employer states, regardless of the nature of the employees’ work. In applying diplomatic immunity so widely, the Court found that the Act went far beyond the requirements of international law, which generally requires immunity only in cases where the employee exercises sovereign authority or some special characteristic is present.
In the case of Ms Janah, the Supreme Court also found that preventing claimants from bringing claims on the grounds that they were neither British nationals nor permanently resident in the UK was discriminatory.
To rectify those issues, the remedial order will amend the 1978 Act in two ways. First, it will limit the automatic immunity afforded to diplomatic missions to employment claims brought by employees such as Ms Janah and Ms Benkharbouche and, in doing so, ensure that a new class of employee can bring claims against an embassy. The Minister helpfully pointed out that there are 55 cases in train, waiting for the remedial order to be passed.
Secondly, the remedial order makes it easier for employment claims to be brought by employees who were neither a permanent resident nor a UK national at the time that they brought their claim, as in the case of Ms Janah.
The Opposition warmly welcome both these changes, and we will not seek to divide the Committee. As Emily Gibbs of the Anti Trafficking and Labour Exploitation Unit said following the Supreme Court judgment:
“These appeals are hugely significant. Overseas domestic workers working in embassies are exceptionally vulnerable to exploitation and abuse including trafficking. We are delighted that the Supreme Court has recognised that the UK’s State Immunity Act is too generous to foreign states, preventing employees, including many vulnerable workers, accessing justice and going well beyond the requirements of international law.”
That goes to the heart of the matter. Although we all recognise the need for some diplomatic immunity, it should not—and need not—be at the expense of hard-working and often hugely vulnerable domestic workers.
The Opposition hope that the order will go some way to redress that delicate legal balance and ensure that domestic embassy workers are afforded the same legal protections and have access to the same employment rights as any other workers across the UK.
Fiona Bruce (Congleton) (Con)
I strongly support the order, which rectifies a gross injustice affecting some of the most vulnerable people working in our society. I have a question for the Minister about the cost of access to justice. As we have heard, some of the people affected are not UK nationals; they will now have access to an employment tribunal. What will the situation be regarding their costs, both at the outset in bringing any such action, and in terms of the recovery of any costs, bearing in mind that most of these people are probably on extremely low wages?
David Rutley
I am grateful to the hon. Members who have contributed to the discussion, and I am grateful to the hon. Member for Enfield, Southgate for his very reasonable understanding of the situation, as always, and his broad support for the action we are taking. As he highlighted, the order will help to address the incompatibilities. He set out the context in his speech incredibly well, for which I am grateful.
My neighbour and hon. Friend the Member for Congleton raised an important point about access to justice. I will get in touch with Ministers at the Ministry of Justice to clarify that point and get back to her in writing.
I am grateful for the Committee’s support and for the support of the Joint Committee. As I highlighted, further delay in bringing the remedial order into force increases the risk of future successful claims against the Government. For the reasons we have all set out today, I commend the order to the Committee.
Question put and agreed to.