Steve Peers

The Court of Appeal’s recent decision in Benkharbouche v Sudan and Janah v Libya delves into significant aspects of public international law, the European Convention on Human Rights (ECHR), and the EU Charter of Fundamental Rights, highlighting their interplay within the current British constitutional framework. The cases involved employment law claims brought by two domestic workers against the Sudanese and Libyan embassies, respectively. The embassies invoked state immunity under a UK law based on a Council of Europe Convention.

Central to the case was whether invoking state immunity in these employment disputes violated human rights law, particularly Article 6 of the ECHR, guaranteeing access to courts. This question raised further issues regarding EU law, specifically Article 47 of the Charter of Fundamental Rights, which similarly guarantees the right to a fair trial. This was relevant because some claims involved EU law (race discrimination and working time Directives), while others, like wage and unfair dismissal claims, did not. Although not directly addressing human trafficking or slavery, the cases held implications for such situations, potentially involving EU law due to the EU Directive against human trafficking, to which the UK opted in.

Following the Employment Appeal Tribunal’s earlier ruling, the Court of Appeal carefully examined recent ECtHR case law. It concluded that state immunity should not apply to all employment claims, only those involving core embassy staff, excluding domestic workers. Ms. Janah’s duties, for example, did not involve acts like engaging in armed conflict with British police.

Determining the remedy for this human rights violation presented a challenge. Lower tribunals lacked the authority to address ECHR breaches, as the UK’s Human Rights Act reserves the power to issue a “declaration of incompatibility” for such breaches to higher courts. Consequently, the Court of Appeal became the first court to issue such a declaration in this instance, as it found itself unable to interpret the relevant State Immunity Act clauses in a way that aligned with the ECHR.

However, a declaration of incompatibility with the ECHR holds less weight than a breach of EU law, where national courts can disapply national law, including Acts of Parliament, to ensure EU law’s effectiveness. Thus, the Court of Appeal also determined that the pertinent State Immunity Act provisions should be disapplied insofar as they obstruct claims grounded in EU law. This decision aligns with the Employment Appeal Tribunal’s ruling, which also disapplied the Act, as any UK court can disapply an Act of Parliament to uphold EU law.

The case effectively illustrates the contrast between remedies for breaches of EU law and the ECHR. Only higher courts can issue a declaration of incompatibility with the ECHR. Disapplying an Act of Parliament carries more weight than a declaration of incompatibility, allowing the case to proceed based on its merits (regarding EU law) without waiting for Parliament to revise the law. Additionally, the case underscores the necessity for a case to have an EU law connection for the Charter to apply. Only the race discrimination and working time claims, benefiting from the disapplication of the Act of Parliament’s provisions, can proceed to court in their current form.

The Court of Appeal’s analysis of the “horizontal direct effect” of Charter rights, meaning EU law’s application against private parties (as non-EU states are not bound by EU law as states, the court treated them similarly to private parties), is particularly noteworthy from an EU law standpoint. In last year’s AMS judgment, the Court of Justice of the European Union (CJEU) distinguished between Charter rights that could challenge national law based on the supremacy of EU law and those that could not due to their lack of precision. While the right to non-discrimination based on age fell under the former, the right of workers to consultation and information belonged to the latter. (It’s worth noting that CJEU case law categorizes this as an application of the supremacy principle, not horizontal direct effect, though the end result is the same in cases like these.)

The Court of Appeal concluded that Article 47 of the Charter is sufficiently precise to challenge national legislation. This is significant because Article 47 is a broad provision frequently invoked, pertaining not only to state immunity but also to wider issues like access to courts (including legal aid) and effective remedies. Therefore, this judgment sets a vital precedent for national courts across the EU facing challenges to national laws based on Article 47 of the Charter, although it doesn’t formally bind any court beyond lower courts in England and Wales.

The Court didn’t need to determine whether the substantive Charter rights in these cases would lead to disapplying national law, as its focus was on court access, not the cases’ merits. However, if it were addressing the substantive issues, it seems evident that race discrimination claims would carry the same legal weight as age discrimination claims, both stemming from Article 21 of the Charter. In contrast, claims based on violations of Article 31 (working time provision) might not have the same legal force, as suggested by an Advocate-General’s opinion in the ongoing Fennoll case.

Furthermore, a specific rule within the Protocol to the EU Treaties, intended to limit the Charter’s impact in the UK and Poland, governs social rights within the Charter (like those in Article 31). The CJEU, in its NS judgment, determined that this Protocol doesn’t generally disapply the Charter in the UK. Still, it didn’t clarify whether the Protocol might impact the enforceability of social rights. Since yesterday’s judgment concerned Article 47 of the Charter, not a substantive social right, the Court of Appeal did not have to address this point.

Barnard & Peers: chapter 9, chapter 20