In the combined cases of Benkharbouche (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant) and Secretary of State for Foreign and Commonwealth Affairs and Libya (Appellants) v Janah (Respondent) , see here for the judgment, the ‘Supreme Court’ ruled that the Employment Tribunal must consider the claims of employees of the Sudanese and Libyan Embassies in London.
The Respondents argued that they had State immunity and relied on the State Immunity Act 1978, which with certain exceptions, provided immunity from UK law for foreign states. This argument was successful at first instance, with the Employment Tribunal ruling that it did not have jurisdiction to consider the claims on their merits. The decision of the Employment Tribunal was overturned on appeal. The claims proceeded to the ‘Supreme Court’, with the Foreign Secretary intervening.
The Supreme Court considered customary international law and determined that the relevant provisions of the State Immunity Act, were not essential for ensuring that the UK complied with customary international law with respect to guaranteeing state immunity (State immunity being a peremptory rule of international law and being an extension of the principal of state sovereignty).
Upon making the aforesaid determinations, the Court ruled that it was able to consider the compatibility of the relevant provisions of the State Immunity Act with article 6 of the European Convention on Human Rights and Article 47 of the EU Charter of Fundamental Rights, the former guaranteeing a fair trial and the latter an effective remedy before a Tribunal. The Court held that the relevant provisions of State Immunity Act were incompatible with both of the aforesaid articles.
The EU Charter on Fundamental Rights does apply to the UK, despite political statements to the contrary and the apparent opt out for the UK and Poland, as is explained in this (Parliamentary Paper).
The Charter is now part of EU Law, which is viewed by the judicial establishment as being supreme over UK law due to the European Communities Act 1972. On this basis, the ‘Supreme Court’ ruled that Article 47 must prevail over the relevant parts of State Immunity Act and remitted the claims back to the Employment Tribunal. If the incompatibility merely pertained the article 6, then the Court could only have issued a declaration of incompatibility, which has no practical effect although may be politically significant.
It is not clear how the states in question will react, both generally and with respect to guaranteeing the State immunity of the United Kingdom in their territories.