Benkharbouche v Secretary of State for Foreign & Commonwealth Affairs; Libya v Janah  UKSC 62
These cases considered whether granting immunity from suit under the State Immunity Act 1978 engages, and breaches, the respondents’ rights under the ECHR and EU Charter. The claimants issued various claims in the employment tribunal following their dismissal from positions within the London Embassy, working for Sudan and Libya, which both claimed immunity from suit.
The Supreme Court unanimously dismissed the Secretary of State’s appeal and affirmed the order of the Court of Appeal. The State Immunity Act 1978, s 4(2)(b) and 16(1)(a) would not apply to the claims derived from EU law discrimination, harassment and breach of the Working Time Regulations. Under the State Immunity Act 1978, s 4(2)(b), a person’s nationality and residence at the date of the employment contract were not deemed proper grounds for denying a person access to the courts in respect of their employment in this country. Similarly, the Court rejected the argument that absolute immunity applied in relation to the employment of embassy staff under the State Immunity Act 1978, s 16(1)(a) and under customary international law. Both s 4(2)(b) and 16(1)(a) of the 1978 Act which confer immunity in English law were held to be incompatible with the ECHR, art 6 and also the EU Charter of Fundamental Rights. EU law prevails over English law in the event of conflict and thus both cases were to be remitted to the Employment Tribunal to determine the claims based on EU law on their merits. The Court rejected the Secretary of State’s arguments based on state immunity and held that whilst there was a long-standing consensus of states in favour of immunity, there had never been sufficient international consensus for an absolute rule in customary international law. A Court could identify a rule of customary international law only if enough states follow a consistent practice, on the footing that it is a legal obligation.
Aidan O’Neill QC was involved in this case.