The State Immunity Act 1978 (Remedial) Order 2023

EXPLANATORY NOTE

(This note is not part of the Order)

This Order amends the State Immunity Act 1978 (c. 33) (the “1978 Act”) to remove the incompatibility, identified in sections 4(2)(b) and 16(1)(a) of that Act, with a Convention right.

Section 4(2)(b) of the 1978 Act provides that States are immune from UK jurisdiction in relation to employment claims brought by individuals who were neither a UK national nor resident in the United Kingdom at the time the contract was made. Section 16(1)(a) of the 1978 Act provides that States are immune from UK jurisdiction in relation to employment claims brought by the staff of diplomatic and consular missions.

In the case of Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, the Supreme Court affirmed the Court of Appeal’s finding that sections 4(2)(b) and 16(1)(a) of the 1978 Act were incompatible with Article 6 and Article 14 of the European Convention on Human Rights because they prevented the claimants from bringing their employment claims and those sections of the 1978 Act were not consistent with the UK’s international law obligations.

In order to remedy the incompatibility, Article 3 amends section 4(2)(b) of the 1978 Act by restricting the immunity of States in relation to employment claims brought by individuals who were neither a UK national nor resident in the United Kingdom at the time the contract was made to cases involving a State that is party to the European Convention on State Immunity, as is required by the UK’s obligations as a party to that Convention.

Article 5 amends section 16(1) of the 1978 Act by limiting the immunity of States in relation to employment claims brought by the staff of diplomatic and consular missions to the immunities required under customary international law. These are claims involving the contracts of employment of an individual as a diplomatic agent or consular officer, or claims involving the contracts of employment of other members of a diplomatic mission or consular post where the State entered into the contract in the exercise of its sovereign authority or where the conduct complained of was undertaken in the exercise of sovereign authority.

Article 4 amends section 13 to address the consequence of restricting the immunity provided in section 16(1) of the 1978 Act on the UK’s obligations under Article 7 of the Vienna Convention of Diplomatic Relations, which provides that a State may “freely appoint the members of the Staff of the mission”, and the obligation in Article 19 of the Vienna Convention on Consular Relations, which provides that a State may “freely appoint the members of the consular staff”. The current version of section 16(1)(a) of the 1978 Act gives effect to these international obligations, as it provides that a State is immune in all proceedings concerning the employment of the members of a diplomatic mission or consular post, so that a court cannot enforce a contract of employment or make a reinstatement order in favour of a member of a mission or consular post. The amendment to section 16(1)(a) of the 1978 Act in Article 5 restricts the immunity in that provision (as described above), and the amendments to section 13 ensure that a court hearing proceedings that it would not have been able to hear under the unamended section 16(1)(a) is prevented from making an order that would infringe on a State’s right to freely appoint members of its diplomatic or consular staff.

The amendments made in this Order will apply in relation to proceedings in respect of a cause of action that arose on or after the date of the Supreme Court judgment in the case of Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs, 18 October 2017.

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen.