Has the English court unlocked diplomatic immunity problems for the UK?
A walk around South Kensington provides a real sense of how many countries have crammed their embassies into the UK’s capital.
To be precise, there are nearly 170 resident embassies, and that does not include honorary consuls. The different flags blowing in the wind showcase the UK’s strong position of power in diplomatic relations.
However, a recent batch of cases targeting embassies has raised questions about the meaning of ‘State Immunity’ and the court’s role in British international relations.
Farrer & Co’s diplomatic affairs partner Jehad Mustafa argued to City PM, “The UK is starting to be seen as a bit of an outlier by the diplomatic community, where there’s a lack of certainty and predictability with how state and diplomats and their diplomatic missions will be treated.”
The State Immunity Act 1978 means that States are immune from UK courts, but there are exceptions, including on employment contacts.
Now, the employment issue is increasingly in the spotlight, with an uptick in seeing embassy names listed in the daily alerts from the Employment Tribunal.
The case against the Kingdom of Spain was most notable after Lydia Lorenzo, who worked at the Spanish Embassy in London from 2008 to 2011 and from 2013 to 2015, made headlines.
She issued a case to the Tribunal over unfair dismissal, but Spain tried to argue that it was entitled to immunity from claims. The case went to the second highest court in England, the Court of Appeal.
In December, that court held that embassy roles that did not involve sovereign authority were not immune under State Immunity.
“When you think about how many nationals of sending states there are working in a diplomatic mission,” stated Mustafa.
The Court of Appeal even went as far as inviting further submissions from the parties and the Secretary of State on whether it should declare that the State Immunity Act 1978 is incompatible with the European Convention on Human Rights (ECHR).
Spain isn’t alone; a case against Saudi Arabia went to the Supreme Court, which ruled last month that the Embassy was not entitled to State Immunity.
Mustafa argued that the UK Government “is just a lot more hands-off than it previously was in these kinds of cases.”
He explained that “up until relatively recently, the UK Government would frequently be seen intervening in major immunity cases, and that doesn’t happen so much.”
The Foreign, Commonwealth and Development Office was contacted for comment.
Mustafa said the “legal system is becoming a bit out of step with how things are done elsewhere”.
He pointed to the US, where he explained if there were legal cases against an embassy across the Atlantic, there would be a Department of Justice lawyer at every court appearance. This approach is “a lot more deference”.
Mustafa says the UK’s “hands-off position” will harm its international relations.
However, this comes as England—home to English law, the most respected in the world—has a reputation for upholding the rule of law.
Following the judgment in Spain, Ryan Bradshaw, a lawyer at Leigh Day, said the ruling “affirms that fundamental rights, including protection against discrimination, cannot be overridden by state immunity.”
“It underscores the importance of ensuring domestic legislation aligns with international human rights standards. It provides a pathway for justice in cases where previously, individuals may have been denied their day in court,” he added.
Until the UK government steps in (if it ever does), these cases will not slow down anytime soon. However, it would take more than a few employment cases to drive a State out of the UK, unless these cases open the door to even meatier issues – and immunity fails to protect.
Eyes on the Law is a weekly column by Maria Ward-Brennan focused on the legal sector.