State Immunity Act 1978 (Remedial) Order 2022

Lord Goldsmith of Richmond Park Excerpts

Monday 9th January 2023 Grand Committee

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.

--- Later in debate ---

[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.