State Immunity Act 1978 (Remedial) Order 2022

Lord Collins of Highbury Excerpts

Monday 9th January 2023 Grand Committee

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 Could the Minister also reassure me that appropriate consultation will take place or has taken place on any draft guidance for how we exercise sovereign authority in relation to employment contracts—and, as it says in paragraph 62, in relation to what amounts to being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.