Draft State Immunity Act 1978 (Remedial) Order 2022

David Rutley Excerpts

Tuesday 10th January 2023 General Committees

[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.

--- Later in debate ---

[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.