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Benkharbouche: EU Law reigns supreme (for now) & other important lessons
The legal press has mostly viewed Benkharbouche v SOS for Foreign and Commonwealth Affairs  UKSC 62 in the Supreme Court [“SC”] as a case which simply addresses the interplay between State Immunity and the Employment Tribunals. But, the other significance to this case is that it contains commentary the on the supremacy of EU Law, the role and significance of the Charter of Fundamental Rights of the EU (“CFREU”) and the way in which it confers a free standing route to dis-applying primary legislation as well as raising questions on the impact of Brexit. It follows that it is essential reading for employment lawyers. Jacques Algazy QC analyses these issues in this blog.
The Claimants, Ms Benkharbouche and Ms Janah were former domestic workers at the Embassies of Sudan and Libya respectively. Both the Claimants were of Moroccan nationality and recruited outside of the jurisdiction. Ms Janah was not habitually resident in the UK and no findings had yet been established regarding Ms Benkharbouche’s status. The SC held that they were entitled to have their EU derived employment law claims heard in an Employment Tribunal notwithstanding the seemingly clear and conflicting provisions of an English Statute, the State Immunity Act 1978 (“SIA”). They were also entitled to have Declarations of incompatibility of certain provisions of the SIA under the Human Rights Act 1998 (“HRA”) as regards their non-EU derived claims.
The legal framework which applied to their claims was as follows.
Section 4(2)(b) of the SIA meant that Sudan and Libya were entitled to claim immunity in respect of the employment claims:
“4 Contracts of employment.
(1) A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there.
(2) Subject to subsections (3) and (4) below, this section does not apply if—
(b) at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; ….”
Additionally, on the facts, the Respondents were entitled to rely on Section 16(1) (a) SIA:
“16 Excluded matters.
(1) This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968; and—
(a) section 4 above does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the members of a consular post within the meaning of the Convention scheduled to the said Act of 1968; ….”
The CFREU attained legal force after the Treaty of Lisbon was entered into on 1 December 2009 and applies to Member states when applying EU Law.
Article 6(1) of the Lisbon Treaty provides:
"The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000 ... which shall have the same legal value as the Treaties."
Section 16(1)(a) and Section 4(2)(b) of the SIA barred the Claimants’ employment law claims from being pursued before the Employment Tribunals on grounds of State Immunity. Some of the Claims were derived from EU law, namely discrimination, harassment and breach of the Working Time Regulations. There were also other Claims including unfair dismissal, unpaid wages, failure to pay NMW and failures to provide pay slips and contracts of employment which were domestic.
The EAT partly upheld the Claimant’s appeals against the dismissal of all their Claims. Those based on EU Law could proceed and the SIA disapplied as the SIA prevented the pursuit of such Claims in contravention of the right of access to a court guaranteed by Article 47 of the CFREU which is similar but not identical to Article 6 of the European Convention on Human Rights (“ECHR”) and provides, so far as material:
47 Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. ….”
The Court of Appeal affirmed the judgment of the EAT and went on to make a declaration of incompatibility under Section 4 of the HRA affecting all of the Claims.
The SC analysis concentrated on the position in respect of the compatibility of the challenged provisions of the SIA with Article 6 of the ECHR. The SOS had conceded that if the ECHR was violated, then so was the CFREU.
Lord Sumption, with whom the rest of the judges agreed, determined that a proper consideration of Customary International Law produced the conclusion that there was a consensus that recognised the “restrictive doctrine” of State Immunity as opposed to an “absolute rule”.
This approach only granted immunity in respect of acts done in the exercise of sovereign authority or if some other sovereign interest can be legitimately invoked. As regards employees, that leads to an inquiry and conclusion as to the functions which the employee is employed to perform.
Lord Sumption opined that it was difficult to conceive of cases where the employment of purely domestic staff would be covered by protectable sovereign interest and that immunity would not extend to other categories of employees such as technical and administrative staff unless their functions were sufficiently close to governmental functions.
“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. ”
It would therefore appear that State immunity does not entitle States to act with impunity.
CFREU: a free standing route to dis-applying primary legislation
Where a UK court is unable to give effect to domestic legislation that is compatible with the ECHR, it can make a declaration of incompatibility under Section 4 of the HRA. This of course does not affect the continuing validity of the provision in question. This is what the SC did in respect of Sections 4(2)(b) and 16(1)(a) of the SIA since it concluded that Article 6 ECHR was engaged. Ms Janah’s additional reliance on Article 14 of the ECHR (discrimination on grounds of nationality) did constitute unjustifiable discrimination but was found to add nothing to her claim under Article 6 alone. The refusal to exercise jurisdiction over Libya and Sudan in the Employment Tribunal was unsupported by any principle of International law. This applied to all the claims being advanced, whether derived from EU law or not.
However with regard to the EU based claims, Lord Sumption, in a single paragraph simply disapplied the SIA as being in conflict with Article 47 of the CFREU:
“…..a conflict between EU law and English domestic law must be resolved in favour of the former, and the latter must be disapplied; whereas the remedy in the case of inconsistency with article 6 of the Human Rights Convention is a declaration of incompatibility.”
In an illuminating post on the future of disapplication, Professor Young describes the SC’s explanation as “… an almost blasé statement”:
Wider implications and the impact of Brexit
As the law currently stands, the CFREU is directly effective and can be relied on “horizontally” (as between private individuals) in certain circumstances. It is also worth remembering that Article 52 (1) of the CFREU circumscribes any limitations of guaranteed rights:
Scope and interpretation of rights and principles
1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.”
In respect of Article 47 CFREU, the document “Explanations relating to the charter of fundamental rights (2007/C 303/02)”, prepared under the authority of the Praesidium of the Convention which drafted the Charter of Fundamental Rights of the European Union, makes it clear that the right to an effective remedy before a court is a general principle of European Union law.
Commentators suggest that UK Courts should be willing to disapply domestic legislation where it conflicts with a “general principle of Union law” such as the principle of non-discrimination.
What will be the position after Brexit? That of course depends on the terms of the withdrawal legislation. The terms of the EU (Withdrawal) Bill (HC Bill 5) makes the position clear as regards the CFREU:
“5 Exceptions to savings and incorporation
(4) The Charter of Fundamental Rights is not part of domestic law on or after exit day.”
That would seem to be the end of any standalone cause of action based on the CFREU post Brexit as relied on in Benkharbouche and Janah.
Professor Young (op cit) posits a number of interesting scenarios where disapplication may still be available to a Claimant but as she points out, the general principles of EU law protecting fundamental rights referred to in clause 5(5) of the EU (Withdrawal) Bill will not avail a Claimant on their own:
“(5) Subsection (4) does not affect the retention in domestic law on or after exit day in accordance with this Act of any fundamental rights or principles which exist irrespective of the Charter (and references to the Charter in any case law are, so far as necessary for this purpose, to be read as if they were references to any corresponding retained fundamental rights or principles).”
That is because of the effect of paragraph 3 of Schedule 1 of the EU (Withdrawal) Bill:
“3 (1) There is no right of action in domestic law on or after exit day based on a failure to comply with any of the general principles of EU law.
(2) No court or tribunal or other public authority may, on or after exit day—
(a) disapply or quash any enactment or other rule of law, or
(b) quash any conduct or otherwise decide that it is unlawful, because it is incompatible with any of the general principles of EU law.”
Further speculation on the post Brexit scenario is perhaps premature until the legislation is passed. Attempts to amend the Withdrawal Bill as it passes through Parliament are inevitable, (See e.g. The Times - 30 October 2017).
In contrast to the relative clarity of, and consensus on, the relationship between EU and Domestic law that may be currently said to exist, uncertainty and “interesting times” would seem to lie ahead.
2 November 2017
 UK Constitutional Law Association - 24 October 2017.