Immunity v Human Rights - or Harmonious Interpretation? Incompatibility of the State Immunity Act with the Human Rights Act and the Right to a Remedy Under International and European Law after Benkharbouche

Abstract

The article critically analyses the judgment in the case of Benkharbouche in which the Court of Appeal declared Sections 16(1)(a) and 4(2)(b) of the State Immunity Act 1978 to be incompatible with Article 6 ECHR because they disproportionately restricted the access to justice of service staff of embassies in relation to their employment contracts. At the same time it disapplied these provisions because they breached the right to an effective remedy under Article 47 of the EU Charter of Fundamental Rights. The judgment is welcomed for highlighting the overly restrictive scope of the SIA in relation to certain employment relationships with diplomatic missions in the UK, for contributing to the international law of state immunity and for clarifying the national application of the EU Charter. However, the very cautious approach to the interpretation of a UK statute in the light of international law is criticised. Interpreting the SIA in conformity with international law and legislative intent would not have crossed the boundaries of interpretation but would have avoided divergence between remedies available to individuals under the HRA and those available under EU law.

Note: The article has been accepted for publication in (2017) 17 Human Rights Law Review.

Keywords: State immunity (employment contracts with embassies), interpretation in conformity with public international law, duty to interpret under Section 3(1) of the Human Rights Act, right of access to justice (Article 6(1) ECHR), right to an effective remedy (Article 47 EUCFR), application of the EU Chart