Automated Summary
Key Facts
The case involves the Royal Embassy of Saudi Arabia (Cultural Bureau) appealing an Employment Tribunal decision that rejected its claim of state immunity. The respondent, Antoinette Costantine, a former administrative and technical staff member of the Embassy, alleged discrimination and harassment. The Employment Tribunal found her role was purely administrative, not governmental, and thus excluded from immunity under the State Immunity Act 1978. The Court of Appeal dismissed the Embassy's appeal for non-attendance in March 2024, but the Supreme Court is reviewing whether appellate courts must consider state immunity ex parte. Key procedural points include the Tribunal's 2021 immunity ruling, the Court of Appeal's refusal to grant an adjournment, and the Supreme Court's analysis of the Remedial Order post-Benkharbouche decision.
Issues
- The third issue addresses the impact of the State Immunity Act 1978 (Remedial) Order 2023, which revised the law following the Benkharbouche decision. The judgment confirms that the Remedial Order aligns domestic law with customary international law and EU principles, ensuring immunity only applies when the state acts within its sovereign capacity. It notes the order's retroactive application to claims arising after 18 October 2017 and its relevance to the respondent's claims under the Equality Act 2010.
- The first issue concerns the Court of Appeal's obligation under section 1(2) of the State Immunity Act 1978 to consider whether the Royal Embassy of Saudi Arabia was entitled to state immunity in its absence during the appeal. The judgment emphasizes that domestic courts, including appellate courts, must proactively address immunity claims to avoid breaching international law. The Court of Appeal's dismissal of the appeal for non-attendance was criticized for failing to first evaluate the immunity issue.
- The second issue examines the Employment Tribunal's application of the correct legal test to determine if the respondent's employment fell under state immunity. The judgment references the Supreme Court's decision in Benkharbouche, which clarified that immunity depends on whether the employee's functions are sufficiently connected to the state's sovereign or governmental activities. The tribunal's detailed factual findings and adherence to this test were upheld as legally sound.
Holdings
- The Supreme Court held that the Court of Appeal was under a duty to consider whether state immunity applied despite the appellant's non-attendance. However, the appeal was dismissed because the Court of Appeal's failure to address this duty did not affect the outcome, as the respondent's role was determined to be non-sovereign and not entitled to immunity.
- The Employment Tribunal correctly applied the test for state immunity under the Benkharbouche decision, finding the respondent's administrative role insufficiently connected to sovereign functions to warrant immunity.
Remedies
The Supreme Court dismissed the appeal brought by the Royal Embassy of Saudi Arabia (Cultural Bureau) in the case of Costantine. The court concluded that the Employment Tribunal had correctly applied the principles of state immunity to the facts of the case and that the respondent's claims did not fall under the scope of immunity. The appeal was accordingly dismissed.
Legal Principles
- The judgment emphasizes that state immunity is a mandatory rule of customary international law (as per ICJ's Germany v Italy and Benkharbouche). Courts must apply this rule independently, regardless of whether the foreign state claims immunity. The test involves determining if the state's actions fall within sovereign functions, with administrative staff roles typically not attracting immunity unless closely connected to governmental operations.
- The Supreme Court held that domestic courts, including appellate courts, have a duty under section 1(2) of the State Immunity Act 1978 to consider state immunity even when the foreign state does not appear in proceedings. This duty is rooted in customary international law principles of sovereign equality and the need to avoid jurisdictional breaches. The Court of Appeal's dismissal of the appeal for non-appearance without addressing immunity was an error of law.
Precedent Name
- Mighell v Sultan of Johore
- Sabeh El Leil v France
- Cudak v Lithuania
- Radunović v Montenegro
- Naku v Lithuania and Sweden
- Jurisdictional Immunities of the State (Germany v Italy; Greece intervening)
- Mahamdia v People's Democratic Republic of Algeria
- Benkharbouche v Embassy of the Republic of Sudan
- Wallishauser v Austria
- NML Capital Ltd v Republic of Argentina
- United States Embassy Employee case
- Sengupta v Republic of India
Cited Statute
- Consular Relations Act 1968
- European Convention on State Immunity 1972
- State Immunity Act 1978
- United Nations Convention on Jurisdictional Immunities of States and their Property 2004
- European Union (Withdrawal) Act 2018
- Diplomatic Privileges Act 1964
- Retained EU Law (Revocation and Reform) Act 2023
- Human Rights Act 1998
Judge Name
- Lord Briggs
- Lord Burnett
- Lord Leggatt
- Lord Lloyd-Jones
- Lord Hamblen
Passage Text
- 77. For these reasons I consider that in the circumstances of this case the Court of Appeal was under a duty under section 1(2) of the SIA 1978 to consider whether it was obliged to give effect to the State immunity claimed... I would accordingly dismiss the appeal.
- 37. In Benkharbouche Lord Sumption... 'State immunity is a mandatory rule of customary international law which defines the limits of a domestic court's jurisdiction... It derives from the sovereign equality of states. Par in parem non habet imperium.'
- 41. Pill LJ in Republic of Yemen v Aziz... 'Under section 1(2) effect must be given to the immunity conferred by section 1(1) even though the state does not appear in the proceedings... inquiry is necessary into whether the entity party to the proceedings, though not present, has that status.'