I. INTRODUCTION
As interpreted by the European Court of Human Rights (ECtHR), the right of access to a court guaranteed by Article 6(1) of the European Convention on Human Rights (ECHR) means that States cannot lawfully grant immunity beyond what is strictly required by international law.Footnote 2 The right is not an exception to the law of immunity, but a limitation on domestic courts' discretion on the exercise of jurisdiction. Article 47(2) of the EU Charter of Fundamental Rights (the Charter), which is applicable to EU Member States when they are implementing or giving effect to EU law, contains a right of access to a court identical to that of Article 6(1) ECHR. Consequently, claimants seeking to enforce rights derived from the EU before UK courts can now rely on Article 47(2) of the Charter to require UK courts to examine whether the grant of immunity under the State Immunity Act 1998 (SIA) or the common law gives effect to an international obligation to grant immunity, and if not, to require the domestic grant of immunity to be set aside.Footnote 3 The first immunity case to rely on the right of access to a court under the EU Charter is Benkharbouche v Sudan, which involved employment claims by domestic service staff against the London embassies of Sudan and Libya respectively.Footnote 4 The English Court of Appeal ruled that, as the scope of the provisions of the SIA granting immunity to these States was not strictly required by international law, they conflicted with the complainants' right of access to a court and, pursuant to the rule that EU law must be given priority over inconsistent domestic law, cannot be applied. The decision has raised a few eyebrows because it is the first time that an English court has applied the EU Charter to set aside provisions of an Act of Parliament in a dispute between private parties.Footnote 5
This article discusses the right of access to a court under the EU Charter and the way in which it is given effect in UK law, before critically examining the application of the right in the Benkharbouche case. In particular, it considers the analysis of the Court of Appeal that suggests a grant of immunity means that a court has no jurisdiction to exercise such that the right of access to a court is not engaged, and whether such a right must have horizontal effect in order to be applicable in a case involving private parties. It argues that the Court's reasoning on these issues is erroneous. First, the right of access to a court is always engaged in immunity cases because immunity does not deprive the courts of jurisdiction ab initio. Second, the right of access to a court is always enforced against the forum State; it therefore has indirect—not horizontal—effect in a case between private parties: the Charter right is not being enforced by one private party against the other, but rather, against the State, the effect of which is to modify the scope of the SIA.
II. THE ‘RIGHT OF ACCESS TO A COURT’ UNDER THE EU CHARTER
A. The EU Charter of Fundamental Rights in English Law
The EU Charter of Fundamental RightsFootnote 6codifies fundamental rights drawn from the European Convention on Human Rights (ECHR), the Community Social Charter 1989, the Council of Europe's Social Charter 1961, the case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU),Footnote 7 and the constitutional traditions common to the EU Member States as general principles of Union law. The Charter is accompanied by a document entitled ‘Charter Explanations’, which was prepared under the authority of the Praesidium of the Convention that drafted the Charter and which provides additional guidance for interpreting the Charter rights. The CJEU and Member State courts are required by EU law to consider the Explanations alongside the Charter provisions.Footnote 8
Article 6(1) of the Treaty on European Union (TEU), as amended by the Treaty of Lisbon,Footnote 9 made the EU Charter part of the primary law of the EU by providing that it ‘shall have the same legal value as the Treaties’. The Charter rights are applicable to—that is, they bind—the institutions, bodies, offices and agencies of the EU, with due regard for the principle of subsidiarity, and the EU Member States when they are implementing Union law.Footnote 10 As the CJEU has explained: ‘[t]he applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter’.Footnote 11
EU Charter rights are given effect in UK law in two ways. First, by incorporation of Article 6(1) TEU: when the Treaty of Lisbon came into force on 1 December 2009,Footnote 12 it amended Article 6(1) TEU, which was already included in the list of treaties in section 1(2) of the European Communities Act 1972 (EC Act) that are given direct legal effect within UK law.Footnote 13 As Article 6(1) TEU stipulates that the Charter has the same legal effect as the EU treaties, the result is that UK courts must now give legal effect to directly effective Charter rightsFootnote 14 when applying or interpreting EU law in accordance with the provisions of section 2 of the EC Act. This includes circumstances in which courts are applying or interpreting UK legislation that seeks to give effect to EU rights or obligations. Crucially for immunity cases, in situations where the SIA conflicts with the right of access to a court under the Charter, section 2(4) of the EC Act would require UK courts to give priority to the Charter right and set aside conflicting provisions of the SIA.
Charter rights must also be given effect in UK law if they reflect or embody general principles of EU law; that is ‘unwritten principles extrapolated by the [Union] Court[s] from the laws of the Member States by a process similar to that of the development of the common law by the English courts’.Footnote 15 Examples include the principle of equality, the protection of fundamental rights, the protection of proportionality and the principle of equal treatment or non-discrimination. General principles have a ‘constitutional status’ within the EU:Footnote 16 the Union courts use the principles to assist in the interpretation of the EU treaties and to assess the validity of other Union acts. They are also binding on Member States.Footnote 17 In the controversial decision of Mangold v Helm,Footnote 18 the CJEU held that general principles of EU law are directly effective in domestic law, including in cases between private parties.Footnote 19 National courts must therefore ensure that domestic legislation giving effect to EU law is compatible with the general principles of EU law, which includes setting aside incompatible domestic law.Footnote 20 In the UK, the judicial power to do so is provided by section 2(1) of the EC Act, which stipulates that all directly effective EU law should be given legal effect in UK law, and section 2(4), which has been interpreted to mean that directly effective EU law takes priority over incompatible Acts of Parliament.Footnote 21
Although the CJEU was accused of judicial activism in Mangold, and of applying a general principle ‘to the detriment of a private party’,Footnote 22 it nevertheless adopted the same reasoning in Kücükdeveci.Footnote 23 In that case, which was heard after the Charter became legally binding, the CJEU noted that the principle of equal treatment is now given expression in Article 21 of the Charter, but the Court did not explain whether Article 21 reflected a pre-existing general principle of EU law (not all Charter rights are derived from general principles of EU law), or whether the Treaty of Lisbon elevated all of the Charter rights to the status of general principles of EU law. In Association de Mediation Sociale (‘AMS’),Footnote 24 the Grand Chamber of the CJEU did not address this question directly, but it did hold that the wording of Article 27 of the Charter, which stipulates that workers must be guaranteed information and consultation in good time ‘in the cases and under the conditions provided for by Union law and national laws and practices’, suggests that ‘it must be given more specific expression in European Union or national law’ before it can be ‘fully effective’, ie directly effective.Footnote 25 Consequently, Article 27 of the Charter could not be invoked in a dispute between a trade union and a non-profit association.Footnote 26 The Court expressly distinguished Article 27 from Article 21(1), considered in the Kücükdeveci case, on the basis that
the principle of non-discrimination on grounds of age at issue in [Kücükdeveci], laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals an individual right which they may invoke as such.Footnote 27
The decision in AMS therefore suggests that only some Charter rights are general principles of EU law directly effective in national legal systems. In determining which rights are general principles of the EU law, national courts will no doubt have to rely on the Charter Explanations and the jurisprudence of the CJEU.
In summary, under the terms of the EC Act, (1) the Charter—having the status of a EU treaty—is given direct effect within UK law, and (2) Charter rights, insofar as they reflect general principles of EU law, are directly effective as such. However, in both instances, the fundamental rights guaranteed by the EU Charter are only applicable when the UK is giving effect to EU rights or obligations.Footnote 28
B. The Right of Access to a Court
The Charter does not expressly set out a right of access to a court, but Article 47, which is based on Articles 6 and 13 of the ECHR, implies such a right. The relevant part of Article 47 provides that:
1. Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
2. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.
According to the Charter Explanations and the jurisprudence of the CJEU,Footnote 29 Article 47(1) corresponds to Article 13 ECHR (the right to an effective remedy) and 47(2) corresponds to Article 6(1) ECHR (the right to a fair trial). As Article 52(3) of the Charter stipulates that where Charter rights correspond to rights under the ECHR, ‘the meaning and scope of those rights shall be the same’, the meaning and scope of Article 47(1) and (2) corresponds to Articles 13 and 6 ECHR respectively.Footnote 30
Article 47(1) corresponds to Article 13 ECHR, but it differs in one crucial respect: whereas Article 13 guarantees an effective remedy before a ‘national authority’, Article 47(1) guarantees an effective remedy before a ‘tribunal’. In Golder v United Kingdom, the ECtHR concluded that Article 13 ECHR does not imply a right of access to a court because (1) it only guarantees a remedy before a ‘national authority’, which might not be a court or tribunal;Footnote 31 and (2) it only guarantees a remedy for the violation of a right under the ECHR, and not for the enforcement of civil rights or criminal charges generally.Footnote 32 Neither of these factors apply to Article 47(1), as it refers to a remedy before a tribunal, not a national authority, and it guarantees an effective remedy where any and all rights and freedoms guaranteed by the law of the Union are violated, not just when Charter rights are violated. The right of access to a tribunal must, by definition, be inherent in the right to an effective remedy before a tribunal, notwithstanding that the effect of Article 52(3) of the Charter and the Charter Explanations is that Article 47(1) has the same meaning and scope of Article 13 ECHR.
The ECtHR has held that the right of access to a court constitutes an inherent element of the right to a fair trial under Article 6(1).Footnote 33 As Article 47(2) corresponds to Article 6(1) ECHR, it follows that the right of access to a court is also an inherent element of the fair trial guarantees in that article. However, Article 47(2) is not confined to civil law rights and obligations and criminal charges: it applies to any and all rights and freedoms guaranteed by EU law, and is engaged whenever Member States are applying or giving effect to EU law.Footnote 34
Although Article 47(2) and Article 6(1) have the same scope, the legal effect of their violation in UK law is significantly different. In cases involving the EU Charter, if a compatible interpretation of the national legislation cannot be found, the court is required by EU and UK law to give priority to the Charter. As many of the Charter rights are coextensive with ECHR rights, this arguably creates an arbitrary distinction between human rights claims that involve EU law, where domestic law that prevents individuals from realizing their EU rights will not be applied, and human rights claims that ‘only’ come within the ECHR, where, if a compatible interpretation between the domestic law and the ECHR right cannot be found, the only ‘remedy’ would be a declaration of incompatibility under section 4 of the HRA.Footnote 35 Such a distinction is not only difficult to justify in its own right, but it also circumvents the constitutional division of competence in the HRA between the judiciary and Parliament.
III. article 47 and state immunity: THE BENKHARBOUCHE CASE
A. The Benkharbouche Claims and the State Immunity Act
Benkharbouche involved two sets of employment claims brought by embassy service workers against the Libyan and Sudanese embassies in London. Ms Benkharbouche, a Moroccan national, was employed as a cook at the Sudanese embassy in London before her dismissal in November 2010. She brought claims against the embassy for wrongful dismissal, failure to pay the minimum wage and breach of the Working Time Regulations 1998.Footnote 36 Ms Janah, also a Moroccan national, had been employed as a member of the domestic staff at the Libyan embassy in London, where her duties ‘included cooking, cleaning, laundering, shopping and serving meals’.Footnote 37 She brought claims against the Libyan embassy for wrongful dismissal, arrears of pay, racial discrimination and harassment (relying on law incorporating the Race Discrimination Directive),Footnote 38 and breach of the Working Time Regulations. Both States claimed immunity under section 1 of the SIA and relying on sections 4(2)(b) and 16(1)(a) SIA. Although section 4(1) SIA removes immunity in proceedings relating to a contract of employment made or due to be performed wholly or partly in the UK, section 4(2)(b) reinstates immunity where, if at the time the contract was entered into, the employee was neither a national of the UK nor habitually resident in the UK. It was conceded that Ms Janah was not habitually resident in the UK when her contract of employment was made, and the question whether Ms Benkharbouche was habitually resident had not yet been resolved.Footnote 39
Section 16(1)(a) of the SIA provides that the exception to immunity under section 4(1) does not apply to proceedings concerning the employment of members of a mission within the meaning of the Vienna Convention on Diplomatic Relations (VCDR) or of the members of a consular post within the meaning of the Vienna Convention on Consular Relations (VCCR). Article 1 of the VCDR, as incorporated into English law by Schedule 1 of the Diplomatic Privileges Act of 1964, includes as part of the mission ‘members of the service staff’, which are defined as ‘members of the staff of the mission in the domestic service of that mission’. Mses Benkharbouche and Janah were both members of the service staff of an embassy and therefore members of the mission for the purposes of section 16(1)(a) SIA.
B. Challenging the State Immunity Act
The claimants argued that the grant of immunity under the SIA infringed their right of access to a court guaranteed by Article 6(1) ECHR and, in respect of the employment claims involving EU law, by Article 47 of the EU Charter. Lloyd Jones LJ began by observing that there are divergent approaches to the question whether State immunity is actually a restriction on the right of access to a court.Footnote 40 The ECtHR has always treated immunity as prima facie interfering with the right of access to a court. However, there is some divergent authority in English courts that suggests the right of access to a court is not even engaged where international law requires States to grant immunity because the grant of immunity deprives the courts of jurisdiction ab initio. In Holland v Lampen Wolfe, Lord Millett, with whom Lords Cooke and Hobhouse agreed (forming the majority on this point), observed that
[a]t first sight [Article 6] may appear to be inconsistent with a doctrine of comprehensive and unqualified State immunity in those cases where it is applicable. But in fact there is no inconsistency. This is not because the right guaranteed by art 6 is not absolute but subject to limitations, nor is it because the doctrine of State immunity serves a legitimate aim. It is because art 6 forbids a contracting State from denying individuals the benefit of its powers of adjudication; it does not extend the scope of those powers.
[…]
[Article 6] presupposes that the contracting states have the powers of adjudication necessary to resolve the issues in dispute. But it does not confer on contracting states adjudicative powers which they do not already possess. State immunity … is a creature of customary international law and derives from the equality of sovereign states. It is not a self-imposed restriction on the jurisdiction of its courts which the United Kingdom has chosen to adopt. It is a limitation imposed from without upon the sovereignty of the United Kingdom itself.
… The United Kingdom cannot, by its own act of acceding to the [ECHR] and without the consent of the United States [the foreign State defendant in this case], obtain a power of adjudication over the United States which international law denies it.Footnote 41
Lord Millett's view was later endorsed in dicta by Lords Bingham and Hoffmann in Jones v Saudi Arabia, with Lord Hoffmann stating that ‘there is not even a prima facie breach of article 6 if a state fails to make available a jurisdiction which it does not possess’Footnote 42 and Lord Bingham reasoning that
[b]ased on the old principle par in parem non habet imperium, the rule of international law is not that a state should not exercise over another state a jurisdiction which it has but that (save in cases recognised by international law) a state has no jurisdiction over another state. I do not understand how a state can be said to deny access to its court if it has no access to give.Footnote 43
In Benkharbouche, Lloyd Jones LJ explained that the Court of Appeal found Lord Millett's reasoning in Holland v Lampen Wolfe ‘compelling’, stating:Footnote 44
[i]t is difficult to see how Article 6 can be engaged if international law denies to the Contracting State jurisdiction over a dispute. There can be no denial of justice for which the State is responsible if there is, as a matter of international law, no court capable of exercising jurisdiction. Moreover, Article 6 cannot have been intended to confer on Contracting States a jurisdiction which they would not otherwise possess, nor could it have conferred a jurisdiction denied by general international law in such a way as to be binding on non-Contracting States. It is unfortunate that in none of its many decisions in which the point has raised has the Strasbourg court grappled with these considerations.Footnote 45
Ultimately Lloyd Jones LJ found that it was unnecessary to choose between the approach of the ECtHR and the approach of the majority in Holland v Lampen Wolfe, despite the fact that, as a decision of the House of Lords, Holland is binding precedent. The Lord Justice proceeded on the basis that under both approaches there must be an examination of the law of immunity; it is only that, under the approach taken by the ECtHR, ‘any debate as to what are the applicable rules of international law is transferred to a later stage of the analysis and dressed in the context of Article 6’.Footnote 46 In Belhaj v Straw, Lloyd Jones LJ adopted the same position, explaining that ‘Article 6 can have no application in situations where international law denies jurisdiction to a national court on grounds of state immunity’,Footnote 47 and in Rahmatullah v Ministry of Defence, Leggatt J noted that the decision in Holland ‘seems to me to be compelling’.Footnote 48
With respect, Lord Millett's reasoning in Holland v Lampen Wolfe—and the supportive dicta it receives from Lords Bingham and Hoffman, and by Lloyd Jones LJ—is erroneous: it confuses the question whether a UK court possesses jurisdiction (both as a matter of domestic law, and international law) with whether the UK is under an international obligation not to exercise its jurisdiction over foreign States.
First, it should be noted that generally the jurisdiction of a domestic court is determined by relevant rules of domestic law and not whether the exercise of adjudicative jurisdiction is permitted under international law.Footnote 49 In England and Wales, a court will have jurisdiction in a civil case as soon as a valid claim form (historically known as a ‘writ’) has been correctly served on the defendant.Footnote 50 If it has not been correctly served, the case will be struck out for lack of jurisdiction before the question of immunity is even considered.Footnote 51
Second, State immunity operates as a bar to jurisdiction; it does not connote the absence of jurisdiction.Footnote 52 It is only once an English court has jurisdiction that it then will consider whether that jurisdiction is debarred by immunity arising under the SIA or under customary international law as incorporated into the common law. Under international law, States generally have discretion to exercise their jurisdiction in civil cases, but an obligation to bar the exercise of that jurisdiction when the defendant is a foreign State engaged in acta jure imperii. The bar to jurisdiction does not mean that a State cannot exercise jurisdiction, only that if it does so, it will be in breach of its obligation under international law to refrain from exercising jurisdiction.Footnote 53 Some support for this interpretation of immunity can be found in the Joint Separate Opinion of Higgins, Kooijmans and Buergenthal in the Arrest Warrant case before the International Court of Justice:
the impression is created that immunity has value per se, whereas in reality it is an exception to a normative rule which would otherwise apply. It reflects, therefore, an interest which in certain circumstances prevails over an otherwise predominant interest, it is an exception to jurisdiction which normally can be exercised and it can only be invoked when the latter exists. It represents an interest of its own that must always be balanced, however, against the interest of that norm to which it is an exception.Footnote 54
This is why—as O'Keefe explained in his comment on Jones—Lord Bingham's reliance on the maxim ‘par in parem non habet imperium’, which is commonly used to justify State immunity, to suggest that the forum State cannot exercise jurisdiction when recognizing the immunity of a foreign State is inaccurate: the maxim ‘is not intended to deny that a State may in fact exercise its domestic jurisdiction over another’, but rather that ‘an equal does not rightly have jurisdiction over an equal’.Footnote 55 This understanding of immunity is also demonstrated by the right of States to waive immunity, both as a matter of international law and under the SIA in the UK:Footnote 56 the waiver enables the domestic court to exercise its underlying jurisdiction; it cannot properly be understood as constituting a conferral of jurisdiction by a foreign State on the forum court.Footnote 57 It only means that the UK may lawfully exercise its jurisdiction as a matter of international law and the English court may exercise its jurisdiction under UK domestic law.Footnote 58
Third, in light of the above analysis, it is clear that Lord Millett and Lloyd Jones LJ's conclusion that Article 6(1) ECHR cannot have been intended to confer a jurisdiction that States would not otherwise possess, ‘nor [confer] a jurisdiction denied by general international law’ misses the point: Article 6 only requires that States exercise jurisdiction that they already possess, but might otherwise have chosen not to exercise pursuant to another rule of international law.
In contrast to Lord Millett's position, the ECtHR has repeatedly treated Article 6 as prima facie engaged in immunity cases.Footnote 59 Recognizing that the right of access to a court is not absolute, the Court has held that (1) ‘the grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State's sovereignty’,Footnote 60 and (2) ‘measures taken by [States] which reflect generally recognized rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6(1)’. Save in some specific treaty provisions,Footnote 61 international law generally does not require States to exercise their adjudicative jurisdiction; it only requires that States decline to exercise their jurisdiction where a foreign State or official has a right to immunity. For State parties to the ECHR, the right of access to a court reverses this position: States must exercise their jurisdiction in cases involving a civil right or obligation, or a criminal charge, unless international law requires the State to grant immunity to a foreign State or State official. The right of access to a court ensures that States only grant immunity to the extent required by international law. State parties must ensure their immunity legislation only grants immunity to the extent required by customary international law;Footnote 62 they may not grant immunity beyond those strict requirements.Footnote 63 Understood in this way, the right of access to a court will never be the basis for an exception to State immunity,Footnote 64 but it does require States to limit their grant of immunity in accordance with what is required by international law.
C. Whether International Law Requires Sections 16(1)(a) and 4(2)(b) SIA
In Benkharbouche, after undertaking an analysis of relevant international instruments and an extensive review of State practice, Lloyd Jones LJ concluded that, sections 16(1)(a) and 4(2)(b) SIA, in their application to the facts of the present case, went beyond what is required by international law and were therefore a disproportionate infringement of Article 6(1) ECHR. The basis of his analysis is discussed below.
1. Section 16(1)(a) SIA
The SIA was enacted largely to give effect to the UK's obligations under the European Convention on State Immunity (ECSI), a treaty drafted under the auspices of the Council of Europe. As the Court noted, the Treaty does not contain a provision requiring immunity to be granted in employment cases involving service members of a diplomatic mission,Footnote 65 and so the Court considered whether customary law recognized such a rule. It spent considerable time examining Article 11 of the UN Convention on Jurisdictional Immunities of States (not currently in force), but not before noting that it was ‘questionable’ whether the provision constituted customary international law at all, let alone whether it could ‘be taken to be a definitive statement of the extent of state immunity required by international law in embassy employment disputes’.Footnote 66 Article 11(1) of the UN Convention provides that unless they agree otherwise, States cannot invoke immunity in employment proceedings for work that has been or will be performed in the forum State, unless one of the exceptions in Article 11(2) applies. One such exception is contained in Article 11(2)(b)—State immunity is available in employment disputes if the employee is:
(i) a diplomatic agent, as defined in the [VCDR];
(ii) a consular officer, as defined in the [VCCR]; [… or]
(iv) any other person enjoying diplomatic immunity[.]
As Article 37(3) VCDR provides that ‘[m]embers of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity’ (emphasis added), a literal reading of Article 11(2)(b)(iv) above—‘any other person enjoying diplomatic immunity’—suggests that the exception to immunity in Article 11(1) does not apply to proceedings involving members of the service staff. Therefore, on this reading, Article 11 requires contracting parties to grant immunity in employment cases involving embassy service members of staff like those in Benkharbouche. However, relying on Foakes and O'Keefe's authoritative commentary to Article 11Footnote 67 and the views of Fox and Webb,Footnote 68 Lloyd Jones LJ concluded that such a literal interpretation of Article 11(2)(b)(iv) would ‘run plainly contrary to the rationale for the restrictive wording of Article 11(2)(b)(i)’ (which makes special provision for a diplomatic agent) and the travaux préparatoires, which demonstrate that Article 11(2)(b) ‘was not intended to require immunity in respect of employment claims by all members of a mission’.Footnote 69 Therefore, not only is it questionable whether Article 11 reflects customary international law, but a reasonable interpretation of that provision indicates that it does not require the scope of immunity provided by the effect of section 16(1)(a).Footnote 70
Turning to State practice, Lloyd Jones LJ concluded on the basis of ‘extensive research’Footnote 71 that it was
impossible to conclude that there is any rule of international law which requires the grant of immunity in respect of employment claims by members of the service staff of a mission in the absence of some special feature such as where the claim is for recruitment, renewal of employment or reinstatement of an individual or where the proceedings would interfere with the security interests of the state.Footnote 72
Accordingly, section 16(1)(a) SIA ‘is not required by international law and is not within the range of tenable views of what is required by international law’.Footnote 73
The Court was correct to conclude that there is no generally accepted rule that State immunity must be granted in employment cases involving service members of a mission. As Garnett has demonstrated persuasively,Footnote 74 the UK is ‘almost alone among developed countries in continuing to deprive embassy employees occupying subordinate positions of rights of redress in the event of any dispute arising in respect of their employment.’Footnote 75 However, the existence of divergent practice—which does at least include some States whose law grants immunity in cases involving members of the service staff of a diplomatic missionFootnote 76—arguably undermines the court's conclusion that the UK position is not even within the ‘range of tenable views’ (Lloyd Jones LJ did not elaborate on what he meant by this).Footnote 77 In Jones v United Kingdom, the UK argued that it had adopted a ‘tenable view’ of its obligations under international law.Footnote 78 The ECtHR did not respond to this point, but when concluding that the findings of the House of Lords on the question of immunity in that case were ‘neither manifestly erroneous nor arbitrary’, it did note that their Lordships had based their decision on ‘extensive references to international law materials and consideration of the applicant's arguments and the judgment of the Court of Appeal’, and crucially that ‘[o]ther national courts have examined in detail the findings of the House of Lords in the present case and have considered those findings to be highly persuasive’.Footnote 79 If the ECtHR was suggesting that the House of Lords offered at least a ‘tenable view’ as to the customary law of immunity, then it is a high threshold, and one that section 16(1)(a) would struggle to meet.
2. Section 4(2)(b) SIA
Lloyd Jones LJ also concluded that section 4(2)(b) SIA, which grants State immunity under UK domestic law if the employee was not habitually resident when the contract was made or carried out, was not required by customary international law. This provision implements the UK's obligation under Article 5(2)(b) of the ECSI, which grants immunity to States in employment disputes if ‘at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State’. As neither Libya nor Sudan was a contracting party to the ECSI, the question remained whether customary international law itself required immunity in such circumstances. However, it is not clear that even if the defendant State were party to the ECSI that the grant of immunity by a UK court would be considered a proportionate restriction on the complainants’ right of access to a court. The ECtHR has always referred to ‘generally recognized rules of public international law’ as being, in principle, a proportionate restriction on the right of access to a court; a rule in a treaty to which there are only eight States parties arguably does not amount to a ‘generally recognized’ rule of international law. Equally, however, if restricting access to court pursuant to a treaty obligation were not a proportionate limitation on the right of access to a court, this would present a conflict of obligations between the ECHR and ECSI, two treaties that originate from the same international organization (the Council of Europe). It is not clear as a matter of treaty law that the ECHR should be prioritized over the ECSI, which for several of the eight State parties was ratified after the ECHR.Footnote 80 It is equally unclear whether the EU Charter—as primary law of the EU—should be prioritized over an EU Member State's obligations under the ECSI.
On the question whether Article 5(2)(b) ECSI also constituted a rule of customary international law, Lloyd Jones LJ observed that other State parties to the ECSI had only applied Article 5(2)(b) in claims where the defendant State was also a State Party,Footnote 81 which provided ‘compelling support for the view that there is no rule of [general] international law which requires the grant of immunity in the circumstances identified in section 4(2) SIA’.Footnote 82 The Court also noted that a similar provision to section 4(2)(b) was included in the ILC Draft Articles 1991 but not included in the final text of the UN Convention on State Immunity, its deletion having been recommend by the ILC Working Group, on the basis that the provision ‘could not be reconciled with the principle of non-discrimination based on nationality’.Footnote 83 Finally, Lloyd Jones LJ went on to consider whether there were any other legitimate objectives that might be achieved by section 4(2)(b), but concluded that there were none.Footnote 84 Section 4(2)(b) was therefore discriminatory on grounds of nationality and not required by international law.Footnote 85
On the basis of the above analysis, the Court of Appeal concluded that the application of sections 16(1)(a) and 4(2)(b) SIA in Benkharbouche constituted a disproportionate limitation to the complainants’ Article 6(1) ECHR right of access to a court. The Court issued a declaration of incompatibility pursuant to section 4(2) of the Human Rights Act (HRA).Footnote 86 However, as the appellants' claims involved rights under the Working Time Regulations and EU racial discrimination and harassment law, the Court also had to consider the compatibility of the above provisions of the SIA with the EU Charter.
D. Application of Article 47 EU Charter
Arden LJ wrote for the Court on the question of the compatibility of sections 16(1)(a) and 4(2)(b) SIA with the EU Charter. She began by citing Article 47(1) EU Charter and noting that it was common ground among the parties that the content of Article 47 is identical to that of Article 6(1) ECHR.Footnote 87 Strictly speaking, this is not correct: as noted above, Article 47(1) is equivalent to Article 13 ECHR, and only 47(2) is equivalent to Article 6(1). This is important because 47(1) guarantees an effective remedy, but 47(2) ‘only’ provides a right of access to a court. The complainants' in Benkharbouche are not arguing that the UK law fails to provide an effective remedy as such; but rather, that the UK has denied them access to a court in order to enforce that remedy. Nevertheless, Arden LJ proceeded on the basis that because the grant of immunity under the SIA breached Article 6(1) ECHR, it also infringed Article 47 of the EU Charter.Footnote 88
Arden LJ then went on to consider whether Article 47 has horizontal direct effect, so that ‘the appellants can rely on it even though Libya is not a Member State or one of the EU institutions referred to in Article 51 of the EU Charter’.Footnote 89 However, with respect, this assertion is not quite correct: it is far from clear that Article 47 is capable of having horizontal effect as such, ie that it is capable of being enforced against a private party, let alone that it is required to be understood as having horizontal effect in the present case; that is, because neither Libya nor Sudan is an EU Member State. On the contrary, the right of access to a court is a right enforced against the State—ie it is effective against the forum State in which the claim is brought, not against the defendant state, ie, the private party against whom the claim is brought. In Benkharbouche, the Court conflated the employment claim between the parties (for the purposes of this claim, a dispute between private privates)Footnote 90 with the separate claim that the grant of immunity by the UK court infringed the complainants' right of access to a court in the UK as guaranteed under Article 47(2). The complainants were seeking to enforce a right against the UK. Although the enforcement of that right indirectly affected the relationship between the private parties insofar as it allowed the complainants to bring their claim before a UK court, it did not impose additional obligations on the foreign States, which were already bound by UK law, including the Working Time Regulations (incorporating the Working Time Directive) and the Equality Act 2010 (incorporating parts of the discrimination and harassment Directive), by virtue of engaging in an employment relationship within UK jurisdiction.Footnote 91 The right of access to a court under the EU Charter therefore has indirect effect, in that it modifies the scope of the SIA, the consequence of which is to allow a private party to bring a claim against another private party. This is conceptually different to horizontal effect, which would involve one private party enforcing a Charter right against another; ie the Charter right is imposed on the other party.
As the Charter right was being enforced against the UK, it was irrelevant that Libya and Sudan were not EU Member States. The issue in the case was not between the foreign State's right of immunity and the complainants' right of access to a court, but simply whether the UK—in barring its court's jurisdiction in a case involving the application of EU law—had violated Article 47 of the EU Charter, a general principle of EU law. It is also irrelevant to the application of the EU Charter, and to the rights derived from EU law, that the plaintiffs were not UK citizens: the EU Charter applies to Member States when they are ‘implementing Union law’; it is not restricted to EU or UK citizens. The purpose of the EU Charter is to ensure that while applying and implementing EU law, Member States do so in a manner that is compatible with basic fundamental rights applicable at the EU level, one of which is to provide for the right of access to a court where it is alleged that those rights have been breached.
After finding that Article 47 is a general principle of EU law because it ‘does not depend on its definition in national legislation to take effect’ and has long been stated as a general principle by the CJEU,Footnote 92 Arden LJ concluded that the right has horizontal direct effect in UK law. She then considered whether the ruling in R (Chester) v Secretary of State for Justice applied to Benkharbouche. In Chester, Lord Mance, writing for the Supreme Court, held that a court has discretion to choose not to set aside domestic statutes where to do so would require the court to effectively design a new statutory scheme.Footnote 93 The reason for this is that both as a matter of EU law and under section 2(4) of the EU Act, a national court is only required to give effect to EU law ‘within the limits of its jurisdiction’. In Chester, which concerned prisoners' voting rights, those limits were defined by the constitutional principles underpinning the separation of powers doctrine,Footnote 94 which led the Supreme Court to conclude that it was not institutionally competent to ‘devise an alternative scheme of voting eligibility that would or might pass muster in a domestic or supra-national European court’.Footnote 95 In Benkharbouche, this was not an issue for Arden LJ, who found that the ‘scope of disapplication in this case is clear’,Footnote 96 and sections 16(1)(a) and 4(2)(b) SIA should therefore be set aside pursuant to section 2 of the EC Act.
V. CONCLUSION
The Benkharbouche decision provides a careful and welcome examination of State immunity in employment cases involving domestic service members of an embassy. The Court's conclusion that immunity is not required by customary international law on the facts of Benkharbouche is surely correct, even if the Court perhaps went too far in stating that the UK's position is not even within the range of tenable views. However, the Court's analysis of the right of access to a court—particularly its application of Article 47 of the Charter—is less convincing. Contrary to the analysis set out by the Court, a more convincing interpretation of sovereign immunity is that it bars, but does not remove ab initio, the jurisdiction of a court. The right of access to a court is breached by the forum State whenever a court declines to exercise jurisdiction it otherwise possesses. Article 47 does have an indirect effect on the parties to the original dispute in that it lifts the bar to the court's jurisdiction, but it cannot properly be understood as placing the forum State in breach of international law, notwithstanding the diplomatic consternation that it may cause.
