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Aidan O’Neill QC discusses the constitutional implications of the decision in Janah v Libya/Benkharbouche v Sudan [2017] UKSC 62

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Aidan O’Neill QC (Scot) QC

Aidan O’Neill QC discusses the constitutional implications of the decision in Janah v Libya/Benkharbouche v Sudan [2017] UKSC 62 (in which he intervened on behalf of the AIRE Centre) in the light of Brexit.

“In R (UNISON) v Lord Chancellor [2017] UKSC 51 the challenge – to the lawfulness of the provisions of secondary legislation which required that claims in the employment tribunals and appeals to the Employment Appeal Tribunal could only be commenced and continued on payment of fees – succeeded on the basis of the executive’s obligation to give practical and effective (rather than theoretical and illusory) respect to the common law constitutional right of access to the courts which was said to be “inherent in the rule of law”. In essence the provisions of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 were found to be unlawful in UNISON  because of what Lord Reed described (at para 102) the executive’s failure to take proper account of and give due weight to:

‘the public benefits flowing from the enforcement of rights which Parliament had conferred, either by direct enactment, or indirectly via the European Communities Act 1972. Fundamentally, it was because of that failure that the system of fees introduced in 2013 was, from the outset, destined to infringe constitutional rights.’ (emphasis added)

The decision in UNISON reinforces the idea of the subordination of the executive to the rule of law. This is undoubtedly a powerful constitutional tool. But the real test for the effectiveness of the common law comes when faced with a case in which the body which seeks to limit, for example, the fundamental constitutional right of access to the courts, is Parliament rather than the Executive.

This was the situation before the Court in Janah v Libya/Benkharbouche v Sudan [2017] UKSC 62. The case concerned the Convention compatibility – and separately the EU law compatibility – of the granting of immunity from suit to foreign embassies (under the provisions of the State Immunity Act 1978) against all and any claims brought against them before the courts by former employees. The Court held that in order to provide the “effective remedy” required by article 47 of the Charter of Fundamental Rights of the European Union to these employees against their former employers, the relevant provisions of the State Immunity Act 1978 had to be disapplied.

Because of the doctrine of Parliamentary sovereignty the order for disapplicaton of the statute could only be made in relation to such of their claims which fell within the ambit of EU law (claims for discrimination, harassment and breach of the Working Time Regulations). These claims were therefore remitted to proceed before an employment tribunal and be determined on their merits.

But in respect of those claims which were based solely on national law without an EU law underpinning  (failure to provide payslips or a contract of  employment, unpaid wages, failure to pay the national minimum wage and unfair dismissal) the employees continued to be barred from running them by 4(2)(b) and 16(1)(a) of the State Immunity Act 1978, notwithstanding that the Court found that their exclusion from the employment tribunal in respect of these claims was Convention incompatible (both under reference to ECHR, art 6 on its own, and art 6 read with ECHR, art 14). The Court made a declaration of incompatibility to this effect under the Human Rights Act 1998, s 4 but Parliament is not bound to give any effect to it, and the declaration has no effect on the enforceable rights of the parties to the litigation.

The high doctrine of Parliamentary sovereignty proclaimed in R (Miller) v Secretary of State for Exiting from the European Union [2017] UKSC 5 means that without an EU law element the claimants in Benkharbouche would have had no effective remedy as was required under the Charter.

But Clause 5(4) of the EU Withdrawal Bill provides bluntly that ‘The Charter of Fundamental Rights is not part of domestic law on or after exit day’ a provision softened only by the immediately succeeding terms of Clause 5(5) which provide that:

‘(5) Subsection (4) does not affect the retention in domestic law on or after exit day in accordance with this Act of any fundamental rights or principles which exist irrespective of the Charter (and references to the Charter in any case law are, so far as necessary for this purpose, to be read as if they were references to any corresponding retained fundamental rights or principles).’

It seems clear therefore that Brexit will inevitably result in a loss of enforceable rights to individual across the full range currently covered by EU law. No Charter, no effective remedy, unless Parliament allows otherwise. The common law is powerless to remedy that.”