On 29 November 2022, the UK Parliament’s Joint Committee on Human Rights recommended the passing of the State Immunity Act 1978 (Remedial) Order 2022 (the “Draft Order”). The Draft Order is said to be designed to remedy an incompatibility of the UK’s State Immunity 1978 (“SIA”) with the UK’s human rights obligations under the European Convention on Human Rights (“ECHR”). It is said to do so by limiting immunity in employment matters.
The Draft Order has been front-page news in England and Wales. On 2 December 2022, the Evening Standard, an English newspaper, dedicated virtually its entire front page to the Draft Order. The underlying story identified over 50 pending cases in English courts that could be affected by this change in the law.
As we note below, the Draft Order represents a risk to States, embassies and consulates, because it changes the law so as to widen the types of cases which can be brought against the State in English courts. States, their embassies and consulates will be surprised to find that the Draft Order is inconsistent with their understanding of State immunity and its protection. All States, embassies and consulates should be aware of the potential significance of the Draft Order both as a matter of their operations in England and Wales, as well as the consequences it may have on a wider scale.
In 2017, the UK Supreme Court decided in Benkharbouche v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Foreign and Commonwealth Affairs and Libya v. Janah  UKSC 62 that the SIA in its current form grants States greater immunity than is required under customary international law. Given that immunity limits access to courts for certain categories of employees, such as domestic workers, on the ground of nationality, the Court declared that the SIA was incompatible with Articles 6 and 14 of the ECHR.
Changes to the SIA through the Draft Order
The Draft Order restricts immunity in employment cases brought by workers in diplomatic missions to situations where the State entered into the contract or engaged in conduct in the exercise of sovereign authority. The Draft Order will have retrospective effect from the date of the UK Supreme Court’s 2017 judgment.
The amended SIA will allow a greater range of employees of diplomatic missions to bring employment claims before English courts. The change thus constitutes a risk to embassies and consulates. The purpose of State immunity is to preserve political and diplomatic relations and ensure comity. In the past, instances where the application of State immunity to employment disputes was controversial have led to significant diplomatic rows. For example, in 2013, the Assistant US Attorney for the Southern District of New York, acting independently of the US Government, secured an indictment of an Indian consular official for violations of American employment laws in relation to her retention of domestic staff from India. The arrest caused a diplomatic fight between the US and India, during which the Government of India even removed the security barriers at the embassy of the US in New Delhi. India objected firmly to the treatment of the consular official as an ordinary prisoner (and, in fact, certain aspects of her treatment in prison, including the conduct of searches, likely were not in line with US constitutional principles then prevailing under federal law). The dispute continued even though a consular official arguably has more limited immunity than embassy officials. The inter-Governmental dispute was only resolved when the US Government accepted formal diplomatic accreditation for India’s consular official, who at that point was in pre-trial detention in the US. In this way, the consular official was repatriated to India and avoided prosecution and trial.
The Draft Order raises the risk that the UK Government will encounter similar diplomatic disputes, even with allies. Embassies and consulates in the UK should be aware of this potential change.
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