Supreme Court: state immunity rules incompatible with Article 6

“A declaration of incompatibility under the HRA cannot get money for a claimant, though it may lead to a change in the law. But an EU claim overriding a domestic statute can do so, whether directly because of some EU overriding law or, as here, because international law operated through EU law.

Brexit will bring a new twist to this – in the present circumstances, a human rights breach without a remedy for the particular claimants, unless the politicians step in. Don’t somehow think that this will be high on the governmental list of deficiencies to be resolved by exercise of the Henry VIII clause in the Withdrawal Bill: see my post here.”

UK Human Rights Blog

Benkharbouche & Anor v Foreign & Commonwealth Office  [2017] UKSC 62, 18 October 2017  – read judgment

If you work for an embassy in London and are not a UK national, you cannot sue your employing state when you get unfairly dismissed. But if you enter a commercial contract with the same embassy, you can sue them.

This is the conundrum which faced the Supreme Court, who decided that the former result, although laid down by statute, was incompatible with Article 6 of the ECHR.

The SC’s sole judgment was by Lord Sumption, with whom the other justices agreed. It is a tour de force of international (rather than human rights) law, because therein lay the key issue.

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