Second Report - Proposal for a draft State Immunity Act 1978 (Remedial) Order 2022: State Immunity & The Right of Access to a Court

The Committee welcomes the Government’s action in proposing the draft Remedial Order to remedy the incompatibility in the State Immunity Act 1978 with the right to access a Court, protected under the Convention rights to a fair trial and to non- discrimination. (Paragraph 5) Procedural Requirements

The Government should be mindful of its legal obligations to respect human rights, both under UK law and under international law. The UK does have legal obligations, and Government Ministers have obligations under their own Ministerial Code, to comply with international human rights law and legal obligations flowing from it. To the extent that a Declaration of Incompatibility (or an ECtHR judgment) makes clear that the UK is in breach of its legal obligations, then the UK Government has a duty to take action to address such failings and to give effect to its legal obligations to respect and protect the human rights of people in the UK.

Overall, we are satisfied that there are compelling reasons to proceed by Remedial Order and that this is a valid use of the remedial power. We consider that the non- urgent procedure strikes a reasonable balance between the competing considerations of the need to avoid undue delay in remedying the incompatibility with human rights standards and the need to afford a proper opportunity for parliamentary scrutiny of changes to primary legislation.

However, we are concerned at the length of time that it has taken successive Foreign Secretaries to act to remove this incompatibility, which has clearly affected a not insignificant number of domestic workers in the UK for whom prompt access to a court would have been very valuable.

We consider that better procedures should be put in place, with a structured system for setting timescales and methods, in agreement between Parliament and the Government, for addressing situations where UK laws are known to breach the human rights of people in the UK. (Paragraph 65) Drafting

The Government should consider whether it is possible for the drafting in section 16(1) (aa)(i) to give greater legal certainty to employees and employers as to which roles would and would not normally be considered to be covered as an employment contract which the State entered into “as an exercise of sovereign authority”.

There is some doubt as to whether limb 16(1)(aa)(ii) grants greater immunity than that required by customary international law and therefore may not be compatible with the right to access a court under Article 6 ECHR. The Government should provide detailed analysis to justify why this limb is required by customary international law Proposal for a draft State Immunity Act 1978 (Remedial) Order 2022: State Immunity & The Right of Access to a Court 23 and to explain the sorts of conduct that it envisages it catching. Alternatively, the Government should consider redrafting limb 16(1)(aa)(ii) to ensure it goes no further than the immunity required by customary international law.

The draft Order addresses the incompatibilities identified in the case of Benkharbouche and Janah. Subject to the Government reflecting on the specific concerns relating to legal certainty and clarity of the drafting concerns new sections 16(1)(aa)(i) and (ii), we recommend that the Government lay the draft order before both Houses.

The Foreign Secretary should remain vigilant and, where relevant, proactively review the state of UK law giving effect to immunities to ensure that immunities do not go further than the extent necessary, and therefore do not unjustifiably interfere with human rights in the UK, and in particular the right of access to a court. (Paragraph 85) 24 Proposal for a draft State Immunity Act 1978 (Remedial) Order 2022: State Immunity & The Right of Access to a Court