Skip to main content

Call for Evidence

Proposal for a draft State Immunity Act 1978 (Remedial) Order

Background

This proposal for a draft State Immunity Act 1978 (Remedial) Order concerns an incompatibility of the State Immunity Act 1978 with the right to access a court protected under Article 6 ECHR, insofar as it grants foreign States immunity for employment disputes that goes further than the immunity required under international law.  Sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 (SIA) prevent the UK Courts from exercising jurisdiction in respect of certain proceedings brought against foreign States in relation to employment disputes.  Most immunities granted under the SIA reflect the requirements of customary international law and are thus a justified interference with the right to access a court, protected by Article 6 ECHR, the common law, and the rule of law.  However, to the extent that the immunities granted by the SIA go further than the requirements of customary international law, they are not justified as interferences with the right to access a court and are thus a breach of Article 6 ECHR. 

In the joined cases Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Foreign and Commonwealth Affairs and Libya v Janah[1], the Supreme Court consequently made a declaration of incompatibility in respect of section 4(2)(b) and 16(1)(a) SIA to the extent that they are disproportionate interferences with Article 6 ECHR as they go further than the requirements of customary international law in granting a state immunity.  Section 4(2)(b) breaches Article 6 as it is not required by international law, and is additionally is incompatible with Article 6 as read with Article 14 ECHR given the discrimination on the grounds of nationality in this provision.

The SIA therefore needs to be amended to remedy the incompatibility of these provisions with the ECHR given that the provisions prevent individuals from accessing courts in respect of employment disputes in a manner that goes beyond the extent of state immunity required by customary international law.

Government proposals

On 11 May 2022, the Government laid its proposal for the State Immunity Act 1978 (Remedial) Order 2022 before both Houses of Parliament. The purpose of the Government’s proposal is to remedy the incompatibility of s. 4(2)(b) and 16(1)(a) of the SIA with Article 6 ECHR.

The breach of Article 6 ECHR identified by the Supreme Court relates to the immunity granted to States under the SIA in respect of employment disputes, where such immunity goes beyond that required by international law, and therefore constitutes a disproportionate and unjustified interference with the employees’ right of access to a court, protected under Article 6 ECHR.  

The Government proposes to address this incompatibility, by amending the SIA to limit the scope of s. 4 (2)(b) SIA to solely cover States party to the European Convention on State Immunity. 

The Government further proposes amending s. 16 SIA to specify that employment contracts concerning employees of foreign States are only immune if they involve staff employed as a diplomatic agent or consular officer, or otherwise employed in the exercise of sovereign authority, but would no longer include the employment contracts of all members of a diplomatic mission.  The categories of employee that would be caught by s. 16 SIA as amended, would depend on the meaning given to “exercise of sovereign authority”.

As a consequence of the amendments to s. 16 SIA, some employees of diplomatic missions or consular posts may be able to bring employment proceedings in the UK.  As a consequence, and in order to comply with international law, the Government proposes amending s. 13 SIA to limit the remedies available in such employment disputes to exclude reinstatement. 

The proposed draft remedial Order would make targeted amendments to the SIA which would have the effect that a person would only be barred from accessing a court to determine their employment dispute with their employer where that was required by international law. 

Remedial Orders

A remedial Order is a form of subordinate legislation which amends or repeals primary legislation for purposes and in circumstances specified in the Human Rights Act 1998 (HRA).  One of these circumstances is where the UK Courts have made a declaration of incompatibility under s. 4 HRA.

Reporting on the draft proposal

The Joint Committee on Human Rights is required to report to Parliament on any remedial Order made under the Human Rights Act.  The Committee has 60 days to report to each House its recommendation as to whether a draft Order in the same terms as the proposal should be laid before the House.

Get involved

The Joint Committee on Human Rights invites submissions of no more than 1,500 words from interested groups and individuals. The deadline for submissions is Friday 27 May 2022.  In particular, the Committee is interested to know:

  • Does the proposed remedial Order meet the procedural conditions for making a remedial Order (are there compelling reasons to proceed by way of remedial order)?
  • Does the proposed remedial Order address the legislative incompatibility of sections 4(2)(b) and 16(1)(a) SIA with Article 6 ECHR (including as read with Article 14 ECHR)?
  • Does the drafting of the proposed remedial Order adequately reflect the requirements of international law in respect of immunities?
  • Is the drafting of the proposed remedial Order sufficiently clear?
  • Will UK legislation relating to immunities, in particular the State Immunity Act 1978, the Diplomatic Privileges Act 1964 and the Consular Relations Act 1968 be compatible with Article 6 ECHR (right to a fair trial, including the right to access the courts) once this change is made?

Relevant links

The proposed draft remedial Order and required information can be found here.

Important information about making a submission

The Committee cannot publish submissions which refer to ongoing legal cases. Please contact us if you are not sure what this means for you.

Written evidence must address the terms of reference as set out above, but please note that submissions do not have to address every point. Guidance on giving evidence to a select committee of the House of Commons is available here.

In line with the general practice of select committees, the Justice Committee is not able to take up individual cases. If you would like political support or advice you may wish to contact your local Member of Parliament.

The Committee will decide whether to accept each submission. If your submission is accepted by the Committee, it will usually be published online. It will then be available permanently for anyone to view. It can’t be changed or removed. If you have included your name or any personal information in your submission, that will normally be published too. Please consider how much personal information you want or need to share. If you include personal information about other people in your submission, the Committee may decide not to publish it. Your contact details will never be published.

Decisions about publishing evidence anonymously, or about accepting but not publishing evidence, are made by the Committee. If you would like to ask the Committee to accept your submission anonymously (meaning it will be published but without your name), or confidentially (meaning it won't be published at all), you can make this request when you upload your submission.

The Committee has discretion over which submissions it accepts as evidence, and which of those it then publishes on its website. We may anonymise or redact some of your submission if it is published. The Committee may decide to accept evidence on a confidential basis. Confidential submissions remain available to the Committee but are not published or referred to in public. All written evidence will be considered by the Committee, whether or not it is published.

If your evidence raises any safeguarding concerns about you, or other people, then the Committee has a duty to raise these with the appropriate safeguarding authority.

[1] [2017] UKSC 62

This call for written evidence has now closed.

Go back to Proposal for a draft State Immunity Act 1978 (Remedial) Order Remedial order scrutiny