Diplomatic Immunity, EU Law, Public International law
Arfan Khan, successfully led the 4A law intervention in a ground breaking decision of the Court of Appeal involving diplomatic immunity and public international law. The case is known as Reyes & Anor v Al-Malki & Anor  EWCA Civ 32. The full judgment is at http://www.bailii.org/ew/cases/EWCA/Civ/2015/32.html
In this appeal the Claimants were successful before the ET. Judge Lewis held that “the exception under article 31 (1) (c) of the Vienna Convention, read consistently with art 6 of the European Convention on Human Rights, applied”.
On appeal to the Employment Appeal Tribunal (EAT), Langstaff J (President) upheld the claim to immunity – it being conceded by the Claimant for the purposes of the appeal that this was not “a commercial activity”, and assertion of diplomatic immunity was not a breach of Article 6 of the ECHR. The ET’s jurisdiction, being statutory, did not extend to the investigation of trafficking and, therefore, the claim based on article 4 of the ECHR was rejected. The ET held that service had been validly affected.
The Claimant, Ms Reyes, appealed contending that “the first and second respondents do not have diplomatic immunity”. The Respondent cross appealed on the issue of service.
4A law intervened on appeal. The intervention was opposed by the Secretary of State for the Foreign and Commonwealth Office. However, 4A law was granted permission to intervene by the Master of the Rolls and Ellias LJ.
The 4A law intervention, amongst other points, in summary contended:
1. A breach of contract for personal profit or gain is not immune from the jurisdiction of the Court as it constitutes commercial activity.
2. According to the US authority of Tabion v Mufti, which had been applied in the US, certain employment contracts, incidental to the functions of the mission, do not fall within the commercial activity exception to immunity.
The Court of Appeal (Master of the Rolls, Arden LJ and Lloyd Jones LJ), drawing on public international law jurisprudence, held that private activity for personal gain did not attract immunity. A private act for profit fell within the jurisdiction of the receiving state in relation to that activity. In doing holding so the Court used Article 42 of the Vienna Convention which states “A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity..”. In the words of the Court:
“..if the diplomatic agent … embarks on a private activity for profit, he becomes subject to the jurisdiction of the receiving State in relation to that activity. The use of the same words in article 31(1)(c) and article 42 shows that there is a clear link between the two provisions. The link is that, if the diplomatic agent acts in breach of article 42, he will not enjoy the immunity that article 31(1)(c) would otherwise afford him”.
The Court held that Tabion could not be brushed aside, and that there was no immunity in relation to acts carried outside official functions.
The Court of Appeal dismissed the appeals and the cross appeals.