State Immunity Act 1978 (Remedial) Order 2022

I thank the Joint Committee on Human Rights for both of its reports on the proposed order. The Government responded to the Committee’s first report in September 2022. In November 2022, the Government noted the contents of the second report and are grateful to the Committee for recommending that Parliament approve the remedial order.

To conclude, state immunity derives from the principle of sovereign equality of states. This principle, enacted in the UK by the State Immunity Act 1978, is based in part on the European Convention on State Immunity 1972, to which the UK is a party. The State Immunity Act 1978 contains a number of exceptions which recognise the distinction between a state’s actions of a sovereign character, such as making treaties, and actions of a commercial nature, such as buying goods and services or employing some staff. The intention of the order is to ensure the UK’s legal obligations are in line with international law and thus ensure that claims can be brought against the relevant states and thus prevent further claims against the UK. This should mitigate any potential future risk to the Government. I commend the order to the Committee.

In conclusion, I repeat what the noble Baroness has said. We welcome this provision, which is overdue—but it is here, and we certainly support its implementation, as reflected in the Joint Committee’s report. We welcome it and hope that it will be implemented speedily. I hope that the Minister will be able to answer my specific questions about the consultation that will take place on any guidance that is issued.

The Government have considered the committee’s comments and we understand the concerns raised that employers and employees should have greater certainty about what counts as sovereign authority in these areas. However, on balance, we do not consider it appropriate for the Government to issue guidance here, because it is ultimately for the courts to interpret these provisions based on the cases that come before them.

I note none the less that the Government broadly agree with the views set out by Lord Sumption in his judgment in the Benkharbouche case to the effect that, in general, purely domestic staff of a diplomatic or consular mission are unlikely to be employed based on contracts entered into as an exercise of sovereign authority and that dismissing an employee for reasons of state security would constitute state conduct in the exercise of sovereign authority.

The noble Lord, Lord Collins, asked how many cases the Government expect to see. I mentioned in my opening comments that there are 55 known cases, but we just do not know how many other cases there might be. I have asked my colleagues, but we do not have a number in the department; the unknowns are, I am afraid, unknown. However, as I said, there are 55 known cases and I think we can extrapolate from that.

I confirm that the order will apply from the date of the declaration of incompatibility, namely 18 October 2017. As I said, the Government are aware of approximately 55 other claims against diplomatic missions in London working their way through the courts. The order would allow those cases to be brought before the employment tribunal. Further delay in bringing the remedial order into force increases the risk of future claims against the FCDO succeeding.

I reiterate my thanks to those present for their support for this order and their insightful contributions—