Steve Peers
Yesterday’s important judgment
in Benkharbouche v Sudan and Janah v Libya by the Court of Appeal raised important issues of public international
law, the ECHR and the EU Charter of Fundamental Rights, and demonstrated the
relationship between them in the current state of the British constitution. The
case involved two domestic workers bringing employment law complaints against the respective embassies of Sudan and Libya, which responded to the complaints by
claiming state immunity, based on a UK Act of Parliament (the State Immunity Act) which transposes a
Council of Europe Convention on that issue.
The question is whether invoking state
immunity for these employment claims amounted to a breach of human rights law,
given that Article 6 of the ECHR (the right to a fair trial) guarantees access
to the courts, according to the case law of the European Court of Human Rights
(ECtHR). In turn, this raised issues of EU law, given that Article 47 of the EU
Charter of Fundamental Rights likewise guarantees the right to a fair trial,
and some of the claims concerned EU law issues (the race discrimination and
working time Directives). (Other claims, such as for ordinary wages and unfair
dismissal, were not linked to EU law). The two cases didn't concern human trafficking or modern slavery, although sometimes embassies are involved in such disputes too. But they would be relevant by analogy to such disputes, and there would also be a link to EU law in such cases, since there is an EU Directive banning human trafficking, which the UK has opted in to.
The Court of Appeal, essentially following
the prior judgment of the Employment Appeal Tribunal, made a careful
study of recent ECtHR case law, concluding that state immunity could no longer
be invoked against all employment law claims, but only against those claims
concerning core embassy staff. This could not apply to domestic workers; Ms.
Janah’s tasks did not involve (for instance) shooting any British policewomen.
But what was the remedy for this
breach of human rights principles? At lower levels, the tribunals had been powerless
to rule on the claims for breach of the ECHR, since the UK’s Human Rights Act awards the power
to issue a ‘declaration of incompatibility’ that an Act of Parliament breaches the
ECHR to higher courts only. So the Court of Appeal was the first court that
could issue such a declaration, and it did so in this case. (The Court
concluded that it could not ‘read down’ the relevant clauses in the State Immunity Act to interpret them
consistently with the ECHR).
However, as compared to the effect
of EU law, even a declaration of incompatibility with the ECHR is relatively
weak, given that the potential remedy for a breach of EU law is the
disapplication of national law, even Acts of Parliament if necessary, by the
national courts. So the Court of Appeal also ruled that the relevant provisions
of the State Immunity Act had to be
disapplied, to the extent that they were applied as a barrier to the claims
based on EU law. On this point, the Court was following the Employment Appeal
Tribunal, which had also ruled to disapply the Act, given that any level of national court or tribunal
has the power to disapply an act of parliament if necessary to give effect to
EU law.
If I had a pound for every law student
who has confused the remedies in UK law for the breach of EU law with the remedies for the breach of the ECHR, I would be very rich indeed. Fortunately,
the facts of this case easily demonstrate the distinction between them. Only the
higher courts could even contemplate issuing a declaration of incompatibility
with the ECHR; and the remedy of disapplication of the Act of Parliament is
obviously stronger than the declaration of incompatibility, allowing the case
to proceed on the merits (as far as it relates to EU law) rather than having to
wait for Parliament to change the law in order to do so. And equally, the case
shows the importance of the requirement that a case has to be linked to EU law in
order for the Charter to apply: only the race discrimination and working time
claims benefit from the disapplication of provisions of the Act of Parliament,
and so only those claims can proceed to court as things stand.
From an EU law perspective, the
most interesting point examined by the Court of Appeal was the application of
the ‘horizontal direct effect’ of Charter rights, ie the
application of EU law against private parties (since non-EU States aren’t bound
by EU law as States, the court assimilated them to private parties). In its
judgment last year in AMS (discussed here),
the CJEU distinguished between those Charter rights which could give rise to a challenge against national law based on the
principle of supremacy of EU law, and those Charter rights which could not, since they were too imprecise to
base a free-standing Charter claim upon. The right to non-discrimination on
grounds of age fell within the former category, whereas the right of workers to
be consulted and informed fell within the latter category. (Note that the CJEU
case law classifies this as an application of the principle of supremacy, not
horizontal direct effect, although the final outcome is the same no matter how
the principle is classified, at least in cases like these).
The Court of Appeal reaches the
conclusion that Article 47 of the Charter is also a provision which is precise
enough to be used to challenge national legislation. That’s an important point, since Article 47 is a far-reaching and frequently invoked provision, and
applies not just to state immunity issues but to many broader issues concerning
access to the courts (including legal aid) and effective remedies. For that reason, this judgment is an important
precedent for national courts across the European Union faced with challenges
to national laws based on Article 47 of the Charter, although of course it
doesn’t formally bind any court besides the lower courts of England and Wales.
The Court didn’t need to rule on whether the substantive Charter
rights raised by these cases would have the effect of disapplying national law,
since it wasn’t ruling on the merits of the cases, but only on the issue of
access to court. If it were ruling on the substantive issues, it would seem obvious
that race discrimination claims have the same strong legal effect as age discrimination
claims, as both claims are based on the same provision of the Charter (Article
21). However, claims based on breach of Article 31 of the Charter (the working
time provision) might not have that strong legal effect. Indeed, an
Advocate-General’s opinion in the pending case of Fennoll has concluded as much.
Furthermore, the social rights in
the Charter (such as the rights set out in Article 31) are subject to a special
rule in the Protocol to the EU Treaties which attempts to limit the effect of
the Charter in the UK and Poland. The CJEU ruled in its NS judgment that this Protocol does not generally disapply the
Charter in the UK, but it did not then rule if the Protocol might nonetheless
affect the enforceability of social rights. Given that yesterday’s judgment was
about Article 47 of the Charter, not about a substantive social right, it was
not necessary for the Court of Appeal to grasp this nettle either.
Barnard & Peers: chapter 9,
chapter 20
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