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Supreme Court judgment: Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs; Secretary of State for Foreign and Commonwealth Affairs and another v Janah [2017] UKSC 62; [2017] All ER (D) 84 (Oct); [2017] WLR (D) 691, SC 

Supreme Court of the United Kingdom

Lord Sumption (with whom Lord Neuberger, Lady Hale, Lord Clarke and Lord Wilson agree), dismissed the appeal of the Secretary of State for the Foreign and Commonwealth Office and affirmed an order of the Court of Appeal. In summary, the Supreme Court held:

(1). To determine customary international law, complete state uniformity is not required, but substantial uniformity is. This was evident from Brownlie’s Principles of Public International Law, 8th ed (2012), 24, which accords with all the authorities (§ 31).

(2). It is necessary to establish that there is a widespread, representative and consistent practice of states on the point in question, which is accepted by them on the footing that it is a legal obligation (opinio juris) (§ 31).

(3). It is necessary to ask what is the relevant rule of international law by reference to which Article 6 must be interpreted (§ 33). The law requires the Court to measure sections 4 (2) (b) and 16 1 (a) against the requirements of customary international law, something that cannot be done without deciding what those requirements are (§ 35). The SSFCO’s argument that article 6 of the Human Rights Convention is satisfied if the rule of the forum state “reflects” generally recognised principles  of international law, and that it was not necessary to show that international law requires a state to be immune, was misconceived. The distinction between “reflects ” and “requires” was a purely semantic one. (§ para 33-34).

(4). There was no rule of customary international depriving the employment tribunal of its jurisdiction to hear employment claims of a non-sovereign nature. Article 6 was engaged through a refusal to exercise that jurisdiction. The jurisdictional issue raised by Lord Millett in Holland v Lampen-Wolfe and by Lord Bingham and Lord Hoffmann in Jones v Saudi Arabia did not arise. (§ 75).

(5). There is no international consensus sufficient to found a rule of customary international law corresponding to section 16 1 (a) of the State Immunity Act 1978  (§ 73).

(6).Section 4 (2) (b) of the State Immunity Act 1978 is not justified by any binding principle of international law (§ 67).

(7). The rule of customary international law is that a state is entitled to immunity only in respect of acts done in the exercise of sovereign authority (§37).

(8). The State Immunity Act 1978 can be regarded as giving effect to customary international law only so far as it distinguishes between exercises of sovereign authority and acts of a private law character, and requires immunity to be conferred on the former but not the latter (§ 63). There is no basis in customary international law for the application of state immunity in an employment context to acts of a private law character (§ 63).

(9). It is evident from a history of state immunity that there has probably never been a sufficient international consensus in favour of the absolute doctrine of immunity to warrant treating it as a rule of customary international law (§ 52). The only consensus that there has ever been about the scope of that immunity is the consensus in favour of the restrictive doctrine (§ 52).

(10). In so far as sections 4(2)(b) and 16(1)(a) conferred immunity, they were incompatible with art 6 of the Human Rights Convention, and art 47 of the Charter of Fundamental Rights of the European Union (§ 76).

(11). Section 4 (2) (b) unquestionably discriminates on grounds of nationality.  The denial of access to justice is unjustifiable whether discriminatory or not (§ 77).

(12). The scope of article 47 of the Charter is not identical to that of article 6 of the Human Rights Convention (§ 78).

(13). In so far as claims fell within the material scope of EU law, the relevant provisions were disapplied (§ 78-79).

Arfan Khan was instructed as lead Counsel for 4A Law Public Interest Lawyers Ltd, and successfully upheld the Court of Appeal judgment through written submissions on the above points following the grant of permission to intervene by the Supreme Court. Permission to intervene was opposed.

The official Supreme Court judgment can be viewed through the following link in full: https://www.supremecourt.uk/cases/docs/uksc-2015-0063-judgment.pdf. It is the only authoritative source and should be read in full. The relevant parties and their legal representatives are recorded at page 2 of the judgment.