Key facts of the case:
The appellants, B and J, had been employees of respectively the embassy of Sudan and the Embassy of Libyia in the UK. They had several employment claims which were turned down by the employment tribunal on the basis of Section 16 (1) (a) of the State Immunity Act 1978 (SIA) because they were considered “members of the mission”. The tribunal recognised that Section 16 (1) (a) could breach Article 6 of the ECHR but held that it could not read the two down compatibly or disapply provisions of the SIA to allow the employment claims to proceed. The Emploment Appeal Tribunal upheld the decisions but held that claims under the Working Time Regulations 1998 and J’s race discrimination claim could proceed as they were within EU law and the employees’ rights to an effective remedy and a fair trial under Article 47 of the Charter were infringed.
Outcome of the case:
With regard to 1) the court held that the provisions of the SIA could not be read down compatibly with ECHR rights and a declaration of incompatibility would be made. With regard to 2) the court held that a Charter right could be relied on horizontally in certain circumstances. Article 47 of the Charter reflected general principles of EU law, it did not depend on its definition in national law to take effect and therefore fell into the category of Charter rights that could have horizontal effect.
2. These appeals raise the question whether a member of the service staff of a foreign diplomatic mission to the United Kingdom may bring proceedings in this jurisdiction against the employer state to assert employment rights or whether such a claim is barred by state immunity. This has led, in turn, to a consideration of the compatibility of the State Immunity Act 1978 ("SIA") with Article 6, European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR") and Article 47, Charter of Fundamental Rights of the European Union ("EU Charter").
4. ... Although Article 47 was part of national law and directly effective, she considered that it was not for the tribunal to consider what she regarded as a freestanding complaint under EU law. She also considered that there was significant doubt over the enforceability of the EU Charter before the courts of the United Kingdom.
5. ... However, the provisions of the SIA were also in conflict with the right of access to a court under Article 47 EU Charter which was a general principle and a fundamental right in EU law. To the extent that the employment rights asserted were within the material scope of EU law, namely the claims of both claimants in respect of breach of the Working Time Regulations 1998 and the claim by Ms. Janah in respect of racial discrimination and harassment, the court was required to disapply the infringing provisions of the SIA pursuant to section 2(1), European Communities Act 1972.
10. The heart of the present appeals and cross-appeals lies in the question whether the applicable provisions of the SIA are compatible with Article 6 ECHR and Article 47 EU Charter and, if not, what consequences follow for the pleas of immunity.
61. The claimants submit that section 4(2)(b) SIA discriminates on grounds of nationality against foreign nationals working in the United Kingdom. They point to the fact that entitlement to the equal protection of the law without discrimination on grounds of nationality is a general principle of international law reflected, inter alia, by Articles 1 and 2, Universal Declaration of Human Rights, 1948, Article 26, International Covenant on Civil and Political Rights, Article 14 ECHR and Articles 20 and 21 EU Charter.
69. The next task is to examine EU law. The appellants' argument here is based on Article 47 EU Charter, which was incorporated into English law following the Lisbon Treaty. The changes took effect in domestic law on 1 December 2009 by virtue of amendments to the European Communities Act 1972 made by the European Union (Amendment) Act 2008.
71. It is common ground that, in so far as relevant to the present case, the content of Article 47 is identical to that of Article 6 ECHR. It follows from our conclusions on Article 6 ECHR that the appellants have accordingly succeeded in showing that Article 47 is violated.
72. EU law has potentially important consequences in this case. The judge held that as a result of the violation of Article 47 EU Charter, the court was bound to disapply sections 4(2)(b) and 16(1)(a) SIA. Ms. Benkharbouche and Ms. Janah could then bring their EU law claims, and those statutory provisions would not then bar their claims. By contrast, the declaration of incompatibility which we propose to make under section 4 HRA does not affect the operation or validity of the SIA. The declaration acts primarily as a signal to Parliament that it needs to consider amending that legislation.
73. The appellants cannot of course claim a remedy under the EU Charter unless they can also show that they are entitled to rely on a violation of it to seek a remedy in proceedings before a national court. For this there must be claims which fall "within the scope of" EU law. As to this, Article 51 EU Charter confirms that the EU Charter is addressed to the EU institutions and like bodies and that it does not extend the field of application of the EU Treaties. Article 52(5) of the EU Charter states that the EU Charter only applies to these entities when they are implementing Union law, in the exercise of their respective powers. The EU Charter does not, therefore, apply to claims based on national law.
74. In fact, it is common ground that both claimants have claims that fall within the scope of EU law. As the judge explained, Ms. Benkharbouche's claims under the Working Time Regulations and Ms. Janah's claims under the Working Time Regulations and for racial discrimination and harassment are derived from EU measures. They have other claims which they accept are not within EU law, such as claims for unfair dismissal. The question of what falls within the scope of EU law is controversial in some contexts but no one has taken issue with the point that in part Ms. Benkharbouche's claims and Ms. Janah's claims are within the scope of EU law.
75. The outstanding issues are: (1) whether Article 47 has "horizontal" direct effect, meaning that the appellants can rely on it even though Libya is not a Member State or one of the EU institutions referred to in Article 51 EU Charter; (2) if so, whether this court should decline to disapply sections 4(1)(b) and 16(1)(a) SIA on the grounds that it is not clear what rule applies in place of these provisions as a matter of international law.
76. In our judgment, for the reasons given below, an EU Charter right can be relied on "horizontally" in certain circumstances.
77. The CJEU gave general principles of EU law horizontal direct effect before the EU Charter came into effect. In Case C-144/04 Mangold v Helm  ECR I-9981, there was a dispute between a private employer and an employee who claimed that a provision of his employment contract discriminated against him on the grounds of age. He argued that national law was incompatible with Directive 2000/78 but that Directive had not been transposed into national law and the time for doing so had not expired. The conventional route for enforcing non-implemented Directive rights is through the EU law doctrine of direct effect, but that is not applicable where the time for transposition has not expired. The CJEU agreed that the national law was contrary to Directive 2000/78. It went on to hold that the provisions of the Directive were applicable even though it had not been transposed into national law and the time for transposition had not expired. Its reasoning was that the Directive implemented the principle of non-discrimination, and that was a general principle of EU law which had to be applied anyway. National law had to be set aside in order to give effect to the general principle.
78. It is therefore perhaps not surprising to find that the CJEU has applied Mangold to the equivalent Charter provision after the Lisbon Treaty came into effect. Case C-555/07 Kücükdeveci v Swedex  IRLR 346 was another dispute between private parties about age discrimination where again national law had not properly transposed Directive 2000/78. (The time for transposition had in this case just expired). The CJEU again held that there was a general principle of non-discrimination in EU law which had to be given effect. It noted that Article 21 EU Charter now contained the principle of non-discrimination. The CJEU also stated, without apparent qualification or elaboration, that the Lisbon Treaty (specifically Article 6, Treaty on the Functioning of the EU) provided that the EU Charter had the same status as the Treaties. This was significant because, as Lord Kerr pointed out in Rugby Football Union v Consolidated Information Services Ltd  1 WLR 3333 at :
"[I]n its initial incarnation the Charter had persuasive value: the CJEU referred to and was guided by it: see, for instance, the Promusicae case  All ER (EC) 809, paras 61–70."
79. A question which remained after Kücükdeveci was whether the CJEU's statement about the status of the EU Charter means that the Lisbon Treaty had elevated all the rights, freedoms and principles in the EU Charter to a level equivalent to Mangold general principles. The CJEU to an extent addressed this question in Case C-176/12 Association de Mediation Sociale (AMS)  ECR I-000 ("AMS") which was decided after Langstaff J. gave his judgment. In this case, a trade union representative sought to rely on Article 27 of the EU Charter (workers' right to information and consultation) against a private employer. The relevant directive had again not been duly implemented by national law and it did not have direct effect. The CJEU held that Article 27 could not be invoked horizontally because it required specific expression in Union or national law, but expressly distinguished Kücükdeveci. The same objection does not apply to Article 47, which does not depend on its definition in national legislation to take effect.
80. The CJEU did not, however, go on to make it clear which rights and principles contained in the EU Charter might be capable of having horizontal direct effect, and which would not. In our judgement, however, Article 47 must fall into the category of Charter provisions that can be the subject of horizontal direct effect. It follows from the approach in Kücükdeveci and AMS that EU Charter provisions which reflect general principles of EU law will do so. The Explanations prepared under the authority of the Praesidium of the Convention which drafted the EU Charter, which Article 52(7) EU Charter requires the court to take into account when interpreting the EU Charter, state that the CJEU has "enshrined" the right to an effective remedy "as a general principle of Union law". The Explanations cite Case 222/84 Johnston  ECR 1651; Case 222/86 Heylens  ECR 4097 and Case C-97/91 Borelli  ECR I-6313. In Borelli, for instance, the CJEU held:
"14. As the Court observed in particular in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary  ECR 1651, paragraph 18, and in Case 222/86 UNECTEF v Heylens  ECR 4097, paragraph 14, the requirement of judicial control of any decision of a national authority reflects a general principle of Community law stemming from the constitutional traditions common to the Member States and has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms."
81. We therefore conclude that the right to an effective remedy guaranteed by Article 47 EU Charter is a general principle of EU law so that Article 47 accordingly has horizontal direct effect. It remains, of course, subject to the exceptions to be found in the jurisprudence of the Strasbourg court (subject to any contrary provision in EU law). Our conclusion accords with the analysis of the case law made by Mr. Eicke, which Mr. Landau adopted and on which Mr. Otty relied.
85. Mr. Landau submits that as a result of the observations of Lord Mance at  to  in R (Chester) v Secretary of State for Justice  AC 271 it is now clear that the English courts retain a discretion in relation to the EU Charter not to disapply domestic statutes which are incompatible with an EU law right or principle in certain circumstances. [para. 82] Chester was a challenge under EU law to a ban on prisoners' voting in EU elections. The UK was entitled to impose some restrictions on their voting. Lord Mance (with whom the other Justices agreed) held that, even if the challenge had succeeded, it would not have been appropriate to disapply the relevant statute law. It was a complex statutory scheme and it was not for the court to devise an alternative. [para. 83] So, too, here Mr. Landau submits that the court would have to go beyond disapplying the SIA. It would have in effect to rewrite the SIA in order to retain state immunity in respect of claims for which the UK is required under international law to afford such immunity. [para. 84] We do not agree with this submission. Unlike the position in Chester, the scope of the disapplication in this case is clear. The order of this court will disapply sections 4(2)(b) and 16(1)(a) to the extent necessary to enable employment claims (other than for recruitment, renewal or reinstatement) falling within the scope of EU law by members of the service staff, whose work does not relate to the sovereign functions of the mission staff, to proceed.
86. For the reasons set out above we have come to the following conclusions.