Draft State Immunity Act 1978 (Remedial) Order 2022

Bambos Charalambous Excerpts

Tuesday 10th January 2023 General Committees

[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.