Domestic slavery exempt from diplomatic immunity: UKSC
A woman who alleges she was kept in a state of domestic slavery by a Saudi diplomat in London has won an appeal to the UK Supreme Court against a decision striking out her claim on the ground that the respondent had diplomatic immunity.
By a 3-2 majority, the Justices found Josephine Wong entitled to bring an employment tribunal claim against Khalid Basfar, overturning the Employment Appeal Tribunal which had upheld the defence but issued a certificate that the case was suitable for an appeal direct to the Supreme Court.
Ms Wong claims to be a victim of human trafficking who was forced to work for Mr Basfar and his family in circumstances of modern slavery after they brought her with them to the UK in August 2016. She alleges that she was confined, at all times, to Mr Basfar’s house except to take out the rubbish; that she was held virtually incommunicado; that she was made to work from 7am to around 11.30pm each day, with no days off or rest breaks; and that she was subjected to other degrading and offensive treatment. After arriving in the UK, she was allegedly paid nothing for seven months, then paid a fraction of her contractual entitlement in July 2017, and not paid again until she escaped in May 2018.
Mr Basfar founded on article 31 of the Vienna Convention on Diplomatic Relations 1961, incorporated into UK domestic law by the Diplomatic Privileges Act 1964, under which diplomatic agents enjoy complete immunity from the criminal jurisdiction of the receiving state and are also generally immune from its civil jurisdiction. The question was whether the case came within the exception for civil claims relating to “any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions”. The conduct alleged was agreed to be “outside his official functions”.
Lord Briggs and Lord Leggatt (with whom Lord Stephens agreed) gave the joint majority judgment allowing the appeal. Lord Hamblen and Lady Rose dissented.
Lord Briggs and Lord Leggatt said the text of the Convention had to be interpreted in accordance with the principles contained in the Vienna Convention on the Law of Treaties 1969, the general rule being that a treaty “shall be interpreted in good faith in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose”.
They accepted Mr Basfar’s contention that the ordinary employment of a domestic worker by a diplomat did not constitute a “commercial activity” within the meaning of the exception. As a matter of language, hiring a domestic worker was capable of being described as exercising a “commercial activity”, but it would be contrary to the purpose of conferring immunity on diplomatic agents to interpret the words as including activities incidental to the ordinary conduct of daily life of diplomats and their families in the receiving state, such as purchasing goods and services for personal use.
However, they rejected the contention that the same applied to the trafficking and exploitation of a domestic worker by a diplomat. Exploiting a domestic worker by compelling her to work in conditions of modern slavery was not comparable to an ordinary employment relationship that was incidental to the daily life of a diplomat. There was a material and qualitative difference: employment was a voluntary relationship, entered into freely and governed by the terms of a contract, whereas the essence of modern slavery was that work was extracted by coercing and controlling a victim, usually involving exploiting circumstances which made them especially vulnerable to abuse.
The extent of control over Ms Wong on the assumed facts of this case was so extensive and despotic as to place her in a position of domestic servitude. Further, on the assumed facts Mr Basfar gained a substantial financial benefit by deliberately and systematically exploiting Ms Wong’s labour for almost two years, initially for a fraction of her contractual entitlement to wages and latterly for no pay at all. This conduct was accurately described as a commercial activity practised for personal profit. The appropriate distinguishing criteria were the concepts of servitude, forced labour and human trafficking recognised in international law, now often grouped together under “modern slavery”. On the assumed facts, this case falls within all these categories and is a paradigm example of domestic servitude.
Lord Hamblen and Lady Rose disagreed with the conclusion that the conditions under which a person was employed or how they came to be employed could convert employment which was not of itself a “commercial activity” into such an activity falling within the exception. The parties agreeing the Diplomatic Convention recognised the importance of preserving diplomatic immunity despite the abuses of that immunity that could be expected to take place. Modern international instruments designed to eliminate the abhorrent practices of trafficking, modern slavery, forced labour and domestic servitude contained nothing suggesting that the meaning of the term “commercial activity” had been expanded now to include trafficked employment. The majority’s expansion of the commercial activity exception risked seriously undermining the scope of diplomatic immunity by creating an uncertain boundary between what was and was not covered, as well as exposing the UK’s diplomats overseas to formal or informal retaliatory measures.