Basfar v Wong

The question raised by this appeal is whether a diplomat can assert his immunity from suit as a defence to a claim brought by a domestic servant who worked for him and his family in his residence here, in circumstances where he “trafficked” her into the United Kingdom and where the treatment she received at his hands and at the hands of his family was so harsh and unfair as to amount to exploitation. As has been explained in the judgment of the majority, the answer to this question turns on whether, on the facts alleged, Mr Basfar was exercising a commercial activity outside his official functions within the meaning of article 31(1)(c) of the Diplomatic Convention.

There is much in the majority judgment with which we agree. First, we agree with the majority’s conclusions on the principles of interpretation in paras 16, 17 and 18. We also agree with the majority’s rejection of the human rights arguments at paras 22 to 25, particularly with the conclusion that the exception to diplomatic immunity in article 31(1)(c) is not based on whether the relevant activity is unlawful under international law or violates human rights: para 25.

We agree that a comparison between state immunity and diplomatic immunity is unhelpful because the activities which fall outside state immunity and which are sometimes described as “commercial transactions” or “commercial activities” are much broader than the activities covered by the article 31(1)(c) exception. The distinction that is relevant in state immunity is the distinction between the acts of the state, ius imperii and acts of a private character, ius gestionis.

Most important, we would also conclude, as we understand the majority to conclude, that the normal employment of a domestic worker (that is, employment not tainted by trafficking, forced labour or domestic servitude) does not amount to “commercial activity” within the exception. Our reasons for coming to that view, though, are rather different from those of the majority. We do not agree that as a matter of ordinary language, a person exercises a commercial activity when they buy goods or services for their personal use. The distinction between acting as a consumer and acting as a business is an important distinction in many aspects of the law. We agree with Lord Sumption’s statement in Reyes at para 51 that “there is no sense which can reasonably be given to article 31(1)(c) which would make the consumption of goods and services the exercise [of] a commercial activity”.

The reason the normal employment of a domestic worker falls outside the definition of “commercial activity” for the purposes of article 31(1)(c) is because it is an activity that is incidental to the ordinary conduct of daily life and, further, because the conduct of the daily life of the household is not itself a “commercial activity”. A claim relating to that employment is not, therefore, a claim relating to the exercise by the diplomatic agent of a commercial activity. To put this another way, if a diplomat set up in business as an interior designer, that is likely to involve him or her in employing people and buying in services and goods for use in the business. Any claims arising from those employment contracts or acquisitions of goods and services for that business would fall within the exception. This would not be because those transactions, looked at in isolation, amount themselves to the exercise of commercial activity but because they are part and parcel of - and hence relate to - the exercise of the commercial activity, being the interior design business. The question raised here is whether those transactions, whether one off or continuing, can themselves be commercial activity when they are not part and parcel of or incidental to some overall professional or commercial activity.

We have concluded that they cannot. Where we disagree with the majority is in their conclusion that the conditions under which a person is employed or how they came to be employed can convert employment which is not of itself a “commercial activity” exercised by her employer into such an activity falling within the exception. In summary our conclusions are:

Normal employment as “commercial activity”

It now seems to be beyond doubt that the normal employment of a domestic worker in the diplomatic household does not amount to the exercise of a commercial activity on the part of the employer. This issue was considered in detail by Lord Dyson MR in Reyes when it was argued on behalf of the claimant that normal employment was also covered by the article 31(1)(c) exception. He examined the ordinary meaning of the phrase and concluded that as a matter of ordinary language, a contract for the provision of services which are incidental to family or domestic daily life is not “commercial activity”: para 14 of the Court of Appeal’s judgment in Reyes. This view was confirmed by the context of the phrase, in particular the link with article 42. As to the object and purpose of the phrase, it was clear from the drafting history and the travaux préparatoires to which Lord Dyson referred that the participants in the Vienna Conference: (i) did not consider that contracts of employment for the provision of domestic services at a mission were already included within the concept of “professional and commercial activities”; and (ii) did not favour enlarging the scope of the exception to a diplomatic agent’s immunity to include such contracts of employment. Lord Dyson concluded:

“29.

I cannot accept the broad interpretation of ‘commercial activity’ for which Mr Otty [appearing for Ms Reyes] contends. It has little support in the jurisprudence or the commentaries. It would frustrate the principle of reciprocity and importance of diplomatic immunity. It would mean that there was no diplomatic immunity in respect of any contract made between a diplomatic agent and another person for the supply by that other person of goods or services for profit. Moreover, as Sir Daniel Bethlehem QC points out, effect has also to be given to the important words ‘outside his official functions’ in article 31(1)(c) of the 1961 Convention. There is no immunity in the case of an action relating to ‘any professional or commercial activity exercised … outside his official functions’. The employment of a domestic servant at a mission is an activity which is incidental to the daily life of a diplomatic agent and enables him to perform his official functions.

30.

I conclude, therefore, that article 31(1)(c) does not deprive a diplomatic agent of immunity from civil suit by a person employed at his official residence to carry out domestic services where the contract is not infected by any allegation of trafficking. The next question is whether a contract of employment which is otherwise not a commercial activity is rendered a commercial activity because the employee has been the subject of trafficking.”

We agree with Lord Dyson that the signatories to the Diplomatic Convention were clearly aware that domestic servants were employed in diplomatic residences. Article 1(g) defines “members of the service staff” as members of the staff of the mission in the domestic service of the mission; a “private servant” is defined in article 1(h) as a person who is in the domestic service of a member of the mission and who is not an employee of the sending State. These definitions are important because other provisions of the Diplomatic Convention confer advantages on those falling within those definitions. According to article 37(3), members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties. Domestic workers can claim exemption from dues and taxes on the payments they receive by reason of their employment and the exemption from social security provision. Private servants also enjoy certain privileges; see article 37(4).

We were also taken to extensive travaux préparatoires. These reveal that there was discussion about the role of domestic staff in the context of considering how far they should share the immunities of the diplomatic family they were serving. Beyond that, it appears that there was no intention to exempt employment issues generally from the civil immunity jurisdiction. The Yearbook of the International Law Commission for 1957, Vol I records the discussions of the ninth session considering the draft codification of the law relating to diplomatic immunity in May 1957. The issue of unfair treatment of domestic servants was raised as a possible additional exception to immunity from jurisdiction by the Yugoslav delegate raising a point that had been put to him by the Yugoslav trade unions. He suggested that some case law suggested that where diplomatic agents enter into contracts with domestic servants, they thereby accepted the jurisdiction of the courts to deal with labour questions. He went on: (p 95 of the 402nd meeting on 22 May 1957)

“31.

… However, in cases where diplomats were accused of dismissing servants without just cause or due notice, the protocol department often intervened on the ground that the prestige of a foreign mission was at stake. The only remedy then open to the aggrieved servant was to bring an action in the diplomat’s own country, a laborious and expensive matter seldom justified by the value of the claim involved. The problem was further complicated by the fact that many States permitted their diplomatic agents to waive their immunity from jurisdiction only with the prior consent of the ministry of foreign affairs. Thus, even if a diplomatic agent accepted the jurisdiction of labour courts in a contract with a domestic servant, that acceptance might later be shown to be invalid because he had not the prior consent of his minister of foreign affairs.

32.

While it would be premature to talk of a definite rule that entry into a labour contract implied acceptance of the jurisdiction of labour courts, there certainly was a marked trend in case law in that direction. The Commission might consider whether to encourage that trend, or simply allow matters to take their course”.

Mr Sandström, the Special Rapporteur, agreed that diplomatic immunity “was often a source of inconvenience” but this was not “so great as to warrant making an exception to the rule”.

Lord Sumption in Reyes also emphasised the importance of considering reciprocity when construing the Diplomatic Convention articles:

“21(6) A wider scope for exception (c) would expose diplomatic agents in post in the United Kingdom (and potentially British diplomatic agents abroad) to local proceedings not only in respect of their employment of domestic servants but in respect of any transaction in the receiving state for money or money’s worth, save perhaps for those which were isolated or uncharacteristic. The substantial effect would be to limit the immunity to acts done in the exercise of the diplomat’s official functions, even in the case of a diplomat in post. The immunity in respect of non-official acts would mean very little, for every purchase that a diplomat might make in the course of his daily life from a business carried on by someone else would be a commercial activity exercised by the diplomat for the purposes of article 31(1)(c). This would be contrary to the carefully constructed scheme of the Convention for different categories of protected person.”

Diplomatic immunity and egregious conduct by the diplomatic agent

There are many instances in the travaux préparatoires where the conference delegates discuss abuses of immunity by diplomatic agents. The choice whether to lift or retain the immunity against claims is nothing to do with the disapproval or acceptability of such conduct. On the contrary, the discussions on the draft at the conference frequently refer to the abuses of privilege that caused public protest in the delegates’ home countries. There was considerable debate about a proposal from the Netherlands to include a separate lifting of immunity for civil liability for car accidents, particularly since the diplomat was likely to be insured: see p 171 of the UN Conference on Diplomatic Intercourse and Immunities in spring 1961 Vol I. But despite such abuses there has been no revision or cutting back of the protection afforded to diplomats from intrusive investigations into their non-commercial life. This was explained by Professor Denza in the Introduction to her work Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4th ed (2016) (“Professor Denza’s Commentary”). She describes the rules protecting the sanctity of ambassadors and enabling them to carry out their functions as “the oldest established and the most fundamental rules of international law” forming “a cornerstone of the modern international legal order”. She went on:

“The second point which can be made is that the Convention has proved remarkably resilient to external attacks. In the United Kingdom and in the United States in particular, the effect of a small number of appalling or bizarre instances of abuse of diplomatic immunity during the 1980s, and of widespread resentment of the flouting by diplomats and other privileged persons of parking restrictions, was a cry for revision of the Convention or for new ways of combating perceived abuse. It would indeed have been possible, had the political will been generally present, to have achieved some reduction of the protection given, in particular, to the diplomatic bag. But Western governments were too well aware of the overall need for protection of their diplomats and their missions abroad against terrorism, mob violence, and intrusive harassment from unfriendly States to dispense with the essential armour provided by the Vienna Convention … The Convention was left intact and in truth strengthened by the systematic re-examination it had undergone.”

Mr Otty QC drew our attention to the preamble of the Diplomatic Convention which states that the purpose of the privileges and immunities conferred by the text “is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States”. He asked how could it be said that the treatment alleged by Ms Wong promoted the efficient performance of Mr Basfar’s functions? We do not regard that as a legitimate approach to construing the scope of the exception in article 31(1)(c). The preamble is intended to express the underlying purpose of the Diplomatic Convention, but it cannot be relied on to restrict the extent of the diplomatic immunity to cover only those activities which might be said to increase their efficiency. We agree with Lord Sumption in Reyes at para 12(3) that:

“Although the purpose of stating uniform rules governing diplomatic relations was ‘to ensure the efficient performance of the functions of diplomatic missions as representing states’, this is relevant only to explain why the rules laid down in the Convention are as they are. The ambit of each immunity is defined by reference to criteria stated in the articles, which apply generally and to all state parties. The recital does not justify looking at each application of the rules to see whether on the facts of the particular case the recognition of the defendant’s immunity would or would not impede the efficient performance of the diplomatic functions of the mission.”

Thus, for example, article 41(3) provides “The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.” But that has not been relied on to argue that if the premises are being used in an incompatible manner, that can affect the scope of the immunities because the misconduct does not promote the efficient running of the mission. Conversely, the immunity is lifted by the other paragraphs of article 31 in respect of activities which could not generally be regarded as unacceptable or reprehensible, such as being the executor of an estate or an heir or legatee as a private person.

The “trafficking dimension” at the time the Diplomatic Convention was concluded

None of the parties in this appeal, or apparently in Reyes, was able to point to any express discussion in the travaux préparatoires of the trafficking of domestic servants. But we are nevertheless satisfied that at the time the Diplomatic Convention was concluded there was no intention on the part of the contracting states that the phrase “commercial activity” could extend to a contract of employment where the worker was trafficked or otherwise exploited. On this point we note that the Supreme Court in Reyes was unanimous. Lord Wilson, who expressed his doubts about the answer proposed by Lord Sumption, accepted that when agreeing to the terms of the Diplomatic Convention in 1961, the parties would not have regarded a claim brought by Ms Reyes as relating to any commercial activity exercised by Mr Al-Malki. He said that he was persuaded that:

“… when agreeing to the terms of the 1961 Convention, the parties would have rejected any suggestion that the proceedings brought by Ms Reyes related to any commercial activity exercised by Mr Al-Malki (para 67).”

The doubts that the majority in the Supreme Court expressed in Reyes concerned whether the later developments in international law demonstrating the determination of many states to take steps to punish and eliminate human trafficking, particularly the adoption of the Palermo Protocol, could affect the interpretation of the exception so that it could now be said to encompass trafficked employment. We turn then to consider the case put by Mr Otty QC to this Court in the present proceedings as to the current meaning of the term and the conclusions arrived at by the majority.

Has the meaning of “commercial activity” changed over time?

The case presented to the Supreme Court in Reyes and in this appeal as to the changing scope of the exception in the light of international law developments was a narrow one. As recorded by Lord Sumption in Reyes, Ms Reyes had confined her argument to the proposition that the international obligation to recognise a crime and tort of human trafficking affected the scope of the exception. It was not submitted before the Supreme Court in Reyes that the exception had extended to trafficked domestic workers when the Diplomatic Convention was concluded in 1961 or that the exception extended now to employment which did not fall within the definition of trafficking in the Palermo Protocol. Mr Otty QC’s case before us at the hearing was similarly narrow. He declined to be drawn on whether a domestic worker who could not establish that she had been trafficked within the meaning of the Palermo Protocol would be able to rely on the exception, since, he said, he did not have to argue anything that wide. Indeed, one of the issues in dispute at the hearing was whether Ms Wong had sufficiently pleaded facts that amounted to trafficking within that definition. We agree with the courts below and with the majority that the appeal should proceed on the basis that the pleaded facts do allege trafficking within the meaning of the Palermo Protocol.

We would add that, in light of these pleaded and assumed facts concerned with trafficking, we do not consider that Ms Wong should be permitted to raise an alternative case at this late stage based on forced labour and/or domestic servitude. Ms Wong was invited by the Supreme Court to address this by written submissions subsequent to the hearing, and so we make no criticism of her attempt to do so. However, Ms Wong’s pleaded case and arguments before the Employment Tribunal and Employment Appeal Tribunal were limited to human trafficking, as was the oral argument before us. In oral submissions before this court Mr Otty QC expressly accepted that Ms Wong’s case rested on the international definition of trafficking being met. In our view, it would be inappropriate to allow Ms Wong, following the hearing before this court, to advance for the first time this alternative case. We do not have the benefit of the consideration of this case by the courts below and it would involve this court making effectively a first instance determination, from which, moreover, there is no possibility of appeal.

In addition, we disagree with Ms Wong that the allegations made in her ET1 claim form are sufficient to permit her claim nonetheless now to be characterised as relating to forced labour and/or domestic servitude.

Forced labour is defined in article 2(1) of the Forced Labour Convention, 1930, No 29 as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. It requires it to be demonstrated both that there is a threat of a penalty should the labour not be performed and that the work is performed against the will of the person concerned (ie with an absence of consent or free choice) - see, for example, the decision of the European Court of Human Rights (“ECtHR”) in Van der Mussele v Belgium (1983) 6 EHRR 163, para 34.

Servitude is the obligation to perform certain services imposed by the use of coercion and is linked with the concept of slavery - see, for example, Siliadin v France (2006) 43 EHRR 16, para 124. It is a “particularly serious form of denial of liberty” and “corresponds to a special type of forced or compulsory labour or, in other words, ‘aggravated’ forced or compulsory labour” - see CN and V v France (Application No 67724/09), paras 89 and 91. As stated in that case at para 91, the distinguishing feature between servitude and forced labour is the victim of servitude’s feeling that their condition is permanent and unlikely to change.

The ET1 and Ms Wong’s Grounds of Complaint would not have been reasonably understood by Mr Basfar or his legal representatives as relating to forced labour or domestic servitude. They assert that she is a “victim of trafficking”. They do not allege that she is a victim of forced labour, that there was a threat of penalty or that the work was performed against her will. They do not allege that she is a victim of domestic servitude, or that there were any aggravating factors which would turn a situation of forced labour into domestic servitude, that Ms Wong felt her condition was permanent and unlikely to change, or that there were objective grounds for any such belief. In our view Ms Wong could not succeed in a claim based on either forced labour or domestic servitude on the basis of her claim as pleaded. This further persuades us that the claim should be limited to the assumed basis of human trafficking as pleaded in the appellant’s ET1 form. We focus therefore on solely the human trafficking context.

We need first to address the question whether the words “commercial activity” are capable of changing their content at all. Ms Wong relied on Costa Rica v Nicaragua (2009) ICJ Rep 213, para 64. In that case the International Court of Justice considered the meaning of the phrase “for the purposes of commerce” in the treaty between the two states, granting the right of free navigation to Costa Rica only for such purposes. Costa Rica argued that the phrase included tourism although no tourism existed at the time the Treaty was concluded. The Court referred to the Vienna Convention on the Law of Treaties 1969: at para 64.

“64.

… On the one hand, the subsequent practice of the parties, within the meaning of article 31(3)(b) of the Vienna Convention, can result in a departure from the original intent on the basis of a tacit agreement between the parties. On the other hand, there are situations in which the parties’ intent upon conclusion of the treaty was, or may be presumed to have been, to give the terms used - or some of them - a meaning or content capable of evolving, not one fixed once and for all, so as to make allowance for, among other things, developments in international law. In such instances it is indeed in order to respect the parties’ common intention at the time the treaty was concluded, not to depart from it, that account should be taken of the meaning acquired by the terms in question upon each occasion on which the treaty is to be applied.”

The Court went on to hold that where the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is “of continuing duration”, the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning.

Lord Sumption said at para 43 in Reyes that there is nothing in the wording of the Diplomatic Convention from which one could discern that the concept of “professional or commercial activity” was ambulatory:

“The expression does not express a general value whose content may vary over time. It is a fixed criterion for categorising the facts, whose meaning and effect was extensively discussed during the drafting and negotiation of the text. There is no reason to suppose that it refers today to anything other than what it referred to in 1961.”

On this point we respectfully doubt that conclusion to this extent: the phrase can have an ambulatory meaning in a more limited sense. Businesses that did not exist in 1961 such as mining cryptocurrencies, designing computer games or trading in financial derivatives might well, in our view, count as exercising a commercial activity even though they were not activities that existed when the Diplomatic Convention was adopted. That is the sense in which an ambulatory meaning was given to the term “for the purposes of commerce” in the Costa Rica case so that it included the transport of tourists on boats along the river even though no such tourism had taken place when the Treaty had been signed in 1858. It is not difficult to accept that the drafters of the Diplomatic Convention would intend that the words could expand in their meaning over future years for that purpose.

Here, however, we are dealing with a different kind of ambulatory meaning. Human trafficking and the exploitation of vulnerable workers did not start after 1961; it has always existed on varying scales. The question is whether the adoption of measures by the international community exhorting countries to punish perpetrators and compensate victims has changed the content of the phrase “commercial activity” so that it now does encompass trafficking. It is not possible simply to make the leap from the developments in the law as to human trafficking to a conclusion that those developments have affected the meaning of words in an earlier international instrument. In addressing that question, one must, as Lord Sumption said at para 42 of Reyes approach the matter using legitimate techniques of interpretation, subject to principled limits. That much is also clearly established by the two cases in which similar submissions were made: Barnet London Borough Council v Attorney General and the Secretary of State for Foreign, Commonwealth and Development Affairs [2021] EWHC 1253 (Fam); [2021] Fam 404 (“Barnet”) and Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26; [2007] 1 AC 270 (“Jones”).

In Barnet the argument before the Divisional Court (Sir Andrew Macfarlane P and Sir Duncan Ouseley (sitting as a High Court judge)) concerned the effect, if any, of the adoption of the UN Convention on the Rights of the Child (1989) (Cm 1976) on the scope of diplomatic immunity. More precisely, the issue before the court was whether the positive obligations under article 3 ECHR, required a new exception which would apply where the diplomat was accused of abusing his children in breach of their article 3 rights. The Court rejected a submission that the UNCRC and the ECHR could have superseded the provisions of the Diplomatic Convention (which they referred to as the “VCDR”):

“115.

… The parties to the VCDR would never have agreed to such a provision. The VCDR, codifying customary international law, after extensive negotiations and consideration, leading to its specific text governing international diplomatic relations, cannot have been superseded in any part by a Convention dealing with the rights of children. Still more difficult is it to conclude that that has been achieved in so sensitive an area, where the very purpose is to send diplomats and their families abroad safely, and entrust them to the compliance with the VCDR by the receiving state, without so much as a word in the text of the later to the problem of diplomats’ children. It is not possible to conclude that the UNCRC should be interpreted as disturbing the VCDR, heedless of the real harm that would risk doing, and doing to the children of diplomats abroad, as the UNCRC would be doing were the Applicant right. None of the Comments, for what they are worth, suggested that either.”

This was a similar exercise to that which the House of Lords conducted in Jones. In that case the immunity invoked was state immunity rather than diplomatic immunity but the approach is still instructive. The issue for the House was to consider the balance currently struck in international law “between the condemnation of torture as an international crime against humanity and the principle that states must treat each other as equals not to be subjected to each other’s jurisdiction”: para 1. Lord Bingham of Cornhill described the new and important consensus of the nations of the world as to the “extreme revulsion” for the practice and fruits of torture, as expressed in the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (1990) (Cm 1775): para 15. The Torture Convention had come into force in June 1987 and both the UK and Saudi Arabia (with the overwhelming majority of other states) were parties. It was also common ground that the proscription of torture in the Torture Convention had, in international law, the special authority of ius cogens. The claimants’ key submission was that the proscription of torture by international law, having the authority it did, precluded the grant of immunity to states or individuals sued for committing acts of torture. Such acts could not be governmental acts or exercises of state authority entitled to the protection of state immunity ratione materiae.

Lord Bingham rejected that submission. He held that neither the prohibition on torture nor that on crimes against humanity automatically overrode all other rules of international law. He said that it may very well be that the claimants’ contention would come to represent the law of nations but it could not be said to do so now. Lord Hoffmann also rejected the submission that the fact that the prohibition on torture was ius cogens meant that it overrode immunity:

“45.

To produce a conflict with state immunity, it is therefore necessary to show that the prohibition on torture has generated an ancillary procedural rule which, by way of exception to state immunity, entitles or perhaps requires states to assume civil jurisdiction over other states in cases in which torture is alleged. Such a rule may be desirable and, since international law changes, may have developed. But … it is not entailed by the prohibition of torture.”

He went on: (para 46)

“Whether such an exception is now recognised by international law must be ascertained in the normal way from treaties, judicial decisions and the writings of reputed publicists.”

Lord Hoffmann said further, at para 63, that international law is based on the consent of nations so that it is not for a national court to “develop” international law “by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states”. He concluded that there was nothing in either the Torture Convention or the United Nations Convention on Jurisdictional Immunities of States and Their Property (2004) to indicate that a new exception was so recognised. He considered judicial decisions of the International Criminal Court and the ECtHR and then national courts. Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe and Lord Carswell agreed with both Lord Bingham and Lord Hoffmann.

The majority’s judgment in the present appeal does not state that it is overruling the decision of the Divisional Court in Barnet but it is difficult to see how that decision can stand, assuming one regards child abuse falling within article 3 ECHR as being serious misconduct which is widely condemned by the international community. It is true that the present appeal is different from Barnet and Jones in that those cases were considering the insertion of a wholly new exception rather than a new and wider interpretation of an existing exception. But the same principles must apply since the principle that the words must mean the same for all signatories applies just as much to the proposed extension of meaning of an existing exception as it does to the creation of a new exception. Further, the potential effect on diplomatic relations - the risks of real harm to our diplomats abroad arising from disturbing the Diplomatic Convention to which the Divisional Court referred in Barnet - is the same in both situations.

To adapt what Lord Hoffmann observed in para 46 of Jones set out above to the facts of the present case, whether an exception to diplomatic immunity has come to be recognised by international law in the extension of the phrase “commercial activity” to the employment of a trafficked domestic worker must be ascertained from treaties, judicial decisions and writings of reputed publicists.

So far as treaties are concerned, we consider that the same answer must be given as regards the effect of the Palermo Protocol on the Diplomatic Convention as was given by the House of Lords in Jones as regards the effect of the Torture Convention on the scope of state immunity. Mr Otty QC is not able to point to anything in the Palermo Protocol that deals with the scope of diplomatic immunity. It cannot be the case that a treaty obligation to make certain conduct a serious criminal offence is itself enough to require contracting states to lift immunity for that conduct: the immunity of diplomats from criminal prosecution is complete and is not challenged in these proceedings.

As to state practice, the jurisprudence from the courts of other parties to the Diplomatic Convention point very firmly towards the continuing state practice being that the employment of trafficked domestic workers does not amount to commercial activity for the purposes of article 31(1)(c).

We were taken to a series of cases in which the courts in the US have firmly rejected cases on similar facts to those of Ms Wong. The primary authority to which these cases refer is an authority from the United States Tabion v Mufti (1996) 73 F 3d 535 (“Tabion”). We agree with Lord Sumption’s comment in Reyes at para 22 that decisions of the federal courts of the United States are a valuable source of law in this area, “because of the long-standing engagement of the US courts with international law and the existence of a highly developed body of domestic foreign relations law belonging to the same tradition as our own”. In Tabion the claimant worked as a domestic servant in the home of a Jordanian diplomat stationed in Washington. She brought an action alleging breach of United States labour laws. The US Court of Appeals Fourth Circuit (on appeal from the District Court) held that the term “commercial activity” did not extend to include occasional service contracts but related only to trade or business activities engaged in for personal profit. The Court concluded:

“Here, as in most cases invoking sovereign immunity, there may appear to be some unfairness to the person against whom the invocation occurs. But it must be remembered that the outcome merely reflects policy choices already made. Policymakers in Congress and the Executive Branch clearly have believed that diplomatic immunity not only ensures the efficient functioning of diplomatic missions in foreign states, but fosters goodwill and enhances relations among nations. Thus, they have determined that apparent inequity to a private individual is outweighed by the great injury to the public that would arise from permitting suit against the entity or its agents calling for application of immunity.” (p 456)

Although Ms Tabion’s claims included claims for low pay, long hours and false imprisonment, the case did not raise squarely the question whether the conditions under which she worked affected whether her employment amounted to “commercial activity”. This was dealt with more directly in later cases. In Sabbithi v Al Saleh (2009) 605 F Supp 2d 122, the plaintiffs were domestic workers from India bringing an action against their former employers who were Kuwaiti diplomats. They brought proceedings under the Trafficking Victims Protection Act of 2000 (“TVPA”) and the Fair Labor Standards Act. The plaintiffs had been employed by the defendants in their home in Kuwait prior to moving to the US. It was alleged that in Kuwait they had worked long hours, seven days a week for small payment. On coming to the US, they signed employment contracts promising to pay them considerably more and to comply with US labour laws. These contracts were presented to the US Embassy in Kuwait for the purpose of obtaining visas to authorise the plaintiffs to work in the defendants’ home in the US. The plaintiffs claimed that once in the US, the defendants did not comply with the terms of the contracts but maintained their exploitative treatment depriving them of their passports, threatening them with physical harm and physically abusing one of them. When they escaped and filed suit, Kuwait declined to waive immunity.

The arguments put forward by the plaintiffs in Sabbithi relevant to the present appeal were (1) the defendants’ alleged trafficking of the plaintiffs fell within the “commercial activities” exception to immunity under the Diplomatic Convention; (2) diplomatic immunity could not bar the plaintiffs’ claims because the defendants’ actions were so egregious they violated ius cogens norms prohibiting slavery and slavery-like practices; and (3) the plaintiffs’ claims under the TVPA prevailed over the defendants’ conflicting claims of diplomatic immunity according to the “subsequent-in-time” rule. The District Court rejected those arguments. The court was not persuaded that the defendants’ alleged conduct constituted human trafficking and held that no ius cogens norm was at issue. But it went on to say that, in any event, there was no evidence that the international community has come to recognise a ius cogens exception to diplomatic immunity. The Court then went on to come to a different conclusion from the Supreme Court in Reyes, holding that the immunity extended after the defendants returned to Kuwait because it was part of the exercise of their diplomatic functions.

This has been the interpretation of article 31(1)(c) approved by the US courts in more recent cases. In 2011, the claimant in Montuya v Chedid (2011) 779 F Supp 2d 60 alleged that she was brought to the US in August 2007 to work in the home of the Lebanese ambassador as their domestic servant. She was forced to work long hours for little pay and was verbally abused and insulted. She claimed she was not allowed to leave the defendants’ home and was illegally confined there. The court referred to the Sabbithi case and found the reasoning persuasive. The court said in closing:

“The Court, moreover, is mindful that the [Convention] is not a unilateral document; what may prevent parties from obtaining redress in our courts also serves to protect American diplomats and their families from what we might consider as legal abuses overseas. This balancing is a policy decision this Court should not challenge.” (p 65)

Finally as regards the US jurisprudence, the question of trafficking was raised squarely in Fun v Pulgar (2014) 993 F Supp 2d 470 (decision of the US District Court). There the plaintiff was offered work as a live-in domestic worker for the family of a Peruvian diplomat working at the Permanent Mission of Peru to the United Nations. She was supplied with an employment contract setting out favourable terms but once she arrived in the United States, the defendants confiscated her passport and put her immediately to work. She alleged that the defendants’ actions created a human trafficking and alien harbouring enterprise in order to take advantage of her service as an underpaid domestic servant. The plaintiff claimed damages and injunctive relief for being trafficked into the United States by the defendants and forced to work against her will as their domestic servant for over six months. The District Court still held that the claim did not relate to commercial activity within article 31(1)(c), applying Tabion. The court did not regard the conditions under which she worked as capable of converting her employment into a commercial activity.

The only case on which Mr Otty QC could rely is the Portuguese case of Fonseca v Larren 30 January 1991 reported in “State Practice regarding State Immunities” edited by the Council of Europe. This was an appeal before the Supremo Tribunal de Justiça. The report provided to us can be set out in its totality:

“The State’s immunity from jurisdiction contained in the Vienna Convention on Diplomatic Relations aims at ensuring the reciprocal independence of States and prevents States from being placed in the position of defendants in the courts of another State. This rule is applicable also to the diplomatic agents of a State, but only when the acts are practised on behalf of the State and for the purposes of the mission and not in case of acts in their private capacity. Hiring a domestic servant for the private residence of a diplomat is an act outside of the diplomatic functions of the agent and therefore not included in the immunity from jurisdiction.”

We have no reason to disagree with Lord Sumption’s analysis of this case at para 33 of Reyes where, apparently having access to a fuller report of the decision, he explained the result as arising from a principle of statutory construction sanctioned by the Portuguese Civil Code which would not apply to a treaty in England. Curiously, the page containing this report in the Court’s appeal bundle contains a report of a later decision on 4 May 1994 in the District Court of Lisbon in Ramos v US Government. In that case it appears that the Lisbon Court held that “Portuguese courts are internationally incompetent to judge labour contracts entered into with the US Diplomatic Mission in Portugal, since this State has not waived its immunity from jurisdiction.”

We accept that the Supreme Court in Reyes has already created a difference of interpretation by holding that the employment of domestic workers is not part of the diplomat’s official functions so that immunity for employment related claims does not continue once the diplomat leaves office. The contrary conclusion has been reached by the US Courts. Whether or not the majority judgment means that the US cases were wrongly decided is not the main point here. The relevance of the US cases for present purposes is that they are very far from showing that there is state practice to support a contention that the parties to the Diplomatic Convention have recognised that the development of international law about trafficking and slavery has affected the meaning of the term “commercial activity” in the treaty to which they are all party.

As to writings of reputed international lawyers, we were shown nothing to suggest that legal writings recognise the extension of the term “commercial activity”. On the contrary, Professor Denza refers without criticism to the decision of the US court in Tabion and to the application of that principle by the Court of Appeal in Reyes: see pp 251-252 of her Commentary. She refers also in her Introduction to the resilience of diplomatic immunity in the face of evolving human rights norms:

“There have been onslaughts on the protected status of diplomats, from those asserting that it cannot be justified in the face of abuse of immunity and from those claiming that it must give way when it appears to conflict with claims to access to justice or to human rights. In recent years diplomats have become conspicuous and highly vulnerable targets for terrorist attack. In the face of these attacks the Convention has survived unscathed. …

Subsequent developments in the functions of governments, the conduct of international relations, in trade, travel, and communications altered in only marginal respects the main functions of diplomatic missions - to represent the sending State and protect its interests and its nationals, to negotiate with the receiving State, to observe, and to report. The basic rules which enabled those functions to be carried out have therefore continued largely without change.”

We therefore agree with Lord Sumption’s conclusion in Reyes that there is nothing either in the Palermo Protocol or in the other international treaties, or in state practice or in academic writings to support the proposition that the meaning of “commercial activity” has changed since 1961 so that it now encompasses trafficked employment of the kind Ms Wong alleges.

For completeness, we add that even if Ms Wong’s claim can be characterised and advanced as relating to forced labour and/or domestic servitude (contrary to our conclusions at paras 125-129), our view is that this makes no difference to the question of whether Mr Basfar was engaged in “commercial activity”. We consider that Ms Wong is wrong to suggest that forced labour and domestic servitude amounts to a “commercial activity” for the purposes of article 31(1)(c) because a perpetrator makes financial savings by not paying the required rate for that labour. For the reasons we have given above, in our view the correct approach is to consider whether the activity in which the forced labour or domestic servitude is used can be considered a “commercial activity”. The forced labour or domestic servitude is not itself a “commercial activity”. In the present case, Ms Wong’s labour was clearly carried out in a domestic setting rather than being put towards any kind of profit-making activity by Mr Basfar. The fact that, on the assumed facts, Mr Basfar’s treatment of Ms Wong was of an appalling nature does not mean that he was engaged in a “commercial activity”.

As Lord Sumption recognised in the context of human trafficking in Reyes at para 45, there is nothing inherent in forced labour or domestic servitude that they be carried out in the exercise of a commercial activity. The characterisation of working conditions as forced labour or domestic servitude does not depend on whether a “commercial activity” is carried on by the perpetrator, nor on whether the perpetrator intends to make savings or a profit, but rather on the perpetrator’s treatment of the victim and whether it involves the denial of the personal autonomy and dignity of the victim.

Problems arising from the majority’s decision

Ms Wong’s appeal before the Court has been conducted on the basis that the facts she asserts in her pleaded case before the Employment Tribunal are true. The majority judgment has set out those facts and, if true, they disclose shocking and shameful mistreatment. The same was true of the facts assumed in Barnet that the diplomatic agent’s mistreatment of his children had been so severe as to amount to a breach of their article 3 Convention rights and in Jones where the claimants pleaded particulars of severe, systematic and injurious torture. Although this Court does not have to examine whether Ms Wong’s allegations are true, that does not absolve us from the need to consider the worrying difficulties that one can foresee arising from a decision that trafficked or other exploitative employment is a “commercial activity” for the purposes of the exception. We see these difficulties as arising on a number of fronts:

The definition of trafficking

As we have already noted, Mr Otty QC’s submissions relied on the Palermo Protocol definition of human trafficking for two purposes. The first was as showing the development of international law since the Diplomatic Convention was adopted. We have dealt with that in the previous section of this judgment. The second was that the Palermo Protocol provides a reasonably bright line for the purpose of defining the scope of “commercial activity”. It is a definition that has already been reflected in statute in section 2 of the Modern Slavery Act 2015. This Court has already had occasion, nonetheless, to comment on how difficult it is to determine whether the treatment of a particular individual falls within the definition of trafficking or not. In Hounga v Allen [2014] 1 WLR 2889 Ms Hounga’s claim for, amongst other things, unlawful race discrimination was met by a defence of illegality by her employer who asserted that Ms Hounga had knowingly participated in presenting false documents to the UK authorities in order to acquire a visa. The Supreme Court held that there was a public policy to which barring Ms Hounga’s claim would “run counter” namely the prevention of human trafficking. This raised the question whether the evidence established that Ms Hounga had been trafficked. Lord Wilson JSC (with whom Baroness Hale of Richmond DPSC and Lord Kerr of Tonaghmore JSC agreed) dealt with the question as follows:

“49.

The tribunal made no finding whether Miss Hounga was the victim of trafficking. No doubt it considered that it had no need to do so. It is only at this third level of appeal that the issue crops up again; and this court’s duty to be fair to [the employer] demands that it should approach the issue with the utmost caution. Nevertheless, although the court should remember, for example, that Miss Hounga was not actually locked into the home, it is hard to resist the conclusion that Mrs Allen was guilty of trafficking within the meaning of the definition in the Palermo Protocol. Thus, of the ILO’s six indicators of forced labour, there might be argument about the existence of the second (restriction of movement) but, on the tribunal’s findings, there certainly existed the first (physical harm or threats of it), the fourth (withholding of wages) and the sixth (threat of denunciation to the authorities where the worker has an irregular immigration status). Judicious hesitation leads me to conclude that, if Miss Hounga’s case was not one of trafficking on the part of Mrs Allen and her family, it was so close to it that the distinction will not matter for the purpose of what follows.”

Lord Wilson did not have to arrive at a definite conclusion as to whether Ms Hounga was trafficked since he concluded that to uphold her employer’s defence of illegality would run strikingly counter to the policy against trafficking and in favour of the protection of its victims.

A useful illustration of the task that awaits courts and tribunals if they are required to determine whether a claimant has been trafficked as a preliminary issue of jurisdiction in a claim against a diplomat can be seen in the case of Ajayi v Abu [2017] EWHC 3098 (QB). HHJ Alison Hampton was considering claims by Ms Ajayi for compensation for being the victim of human trafficking. The trial in the Queen’s Bench Division lasted five days and resulted in a judgment of 126 paragraphs. Her factual findings covered the period between when Ms Ajayi first started work for the Abu family in the summer of 2005 until she was expelled from the household in March 2015. The judge heard evidence from the defendants, from members of the family and their friends, from a director of Anti-Slavery International who provided his opinion to the court on whether Ms Ajayi could be said to be a victim of trafficking, and from a psychiatrist. The judge prefaced her analysis of the factual witnesses and her findings of fact by describing the difficulties facing her - difficulties which are likely to face any judge considering whether a claimant has been the victim of trafficking:

“52.

It is judicial experience that those involved in disputes within family relationships or other close personal or domestic relationships which have failed have a natural inclination to reinterpret past events in either vengeful or self exculpatory terms. This is particularly so in the present case where the claimant’s expectations of the life she was expected to lead in the United Kingdom, including her education, had not been met, I find that she has a genuine and justified sense of grievance against the defendants. I also find that the defendants feel a sense of grievance that the claimant has turned against them, after they provided her with a home and assisted her with education and the opportunity to remain in the United Kingdom.”

The judge found that Ms Ajayi had exaggerated her claim in some respects. She found that Ms Ajayi had never been physically abused or locked into the family home. She had received cash payments from time to time and had been free to go to college and to carry out voluntary work at church. But on the issue of whether her treatment amounted to trafficking, the judge concluded that it did, since the control on an individual does not require physical restraint, violence, or the threat of violence, to be effective and coercive. She found that the claimant was indeed the victim of trafficking and harassment within the meaning of the 1997 Act.

It appears therefore that if the test for “commercial activity” is indeed the test for human trafficking set out in the Palermo Protocol, the circumstances in which immunity may be lifted are not limited to extreme cases of zero payment, virtual imprisonment in the family home and physical abuse. It is no answer to this point to say that Ms Wong’s allegations as set out at paras 8 and 9 of the majority judgment are at the more extreme end of what amounts to human trafficking. If trafficking and exploitation amount to exercising “commercial activity” as the majority conclude, the immunity may be lifted whenever the test is satisfied, not simply when it is satisfied in a particularly egregious form. The Employment Tribunal may find, having investigated Ms Wong’s allegations that some of what she claims is exaggerated and that, for example, she was never made to wear a door-bell round her neck, that she was provided with meals every day and allowed to speak to her family using Mr Basfar’s phone once a month. Would Mr Basfar’s conduct still be such as to lift his immunity from suit? The majority judgment does not assist because there is no indication which of the vulnerable characteristics and identifying factors listed in paras 45 to 51, singly or in combination, need to be present before the employment relationship amounts to “commercial activity”. The majority judgment refers throughout to Ms Wong as a “migrant” domestic worker. It is not clear - but it needs to be clear if this test is to be applied by employment tribunals - whether the exception is limited to “migrants”. If so then the serious mistreatment of domestic workers engaged by the diplomat but who are resident in this country cannot amount to “commercial activity” even if they, like a typical migrant worker, have no network of supporters in this country to whom they can turn for help.

The intrusive nature of the exercise in which employment tribunals will need to engage

The judgment in the Ajayi v Abu case illustrates the exercise on which tribunal judges will need to embark in deciding whether the “commercial activity” exception applies. The issues covered in the judgment include: the claimant’s conduct during periods of prayer within the family home; the claimant’s attendance at the family’s church; what percentage of the family’s ironing was carried out by the claimant; to what extent Ms Ajayi did the school run to collect the children. There was a dispute between the parties as to whether Ms Ajayi had ever been paid and, if so, how much. This required an analysis of Mr Abu’s bank statements. We cannot accept that the signatories of the Diplomatic Convention envisaged that such an exercise was an appropriate one for courts and tribunals to undertake in order to decide whether the exception in article 31(1)(c) applies.

It is no answer, in our judgment, to say that Mr and Mrs Basfar can rely on article 31(2) of the Diplomatic Convention which prevents them from being compelled to give evidence. It cannot be the case that the exception is recognised only because it is likely that future defendants will consider themselves unable to defend the proceedings because of the intrusive examination of their home life that would be required to refute the allegations.

The wider definition of exploitation

The majority’s judgment extends the meaning of “commercial activity” to employment relationships other than those which fall within the definition of trafficking set out in the Palermo Protocol. The judgment refers to the international concepts of servitude and forced labour as marking the dividing line between on the one hand the consensual employment of a housekeeper or other domestic worker which is not to be treated as a commercial activity and “a form of modern slavery” which is. Underlying the majority’s judgment is the assumption that there is a boundary with servitude or forced labour on one side of it and voluntary employment on the other side. In our view there is, rather, a broad spectrum between those who are in the fortunate position of working in congenial conditions and being free to leave their jobs when they please on the one hand and victims of trafficking, servitude and forced labour on the other. Many people in the UK and elsewhere work long, anti-social hours in unpleasant conditions doing menial work for low pay and having to put up with rude, bullying employers. They cannot afford to leave their jobs; they have families to feed and bills to pay and the alternatives open to them are very limited and unlikely to be much better. But they are not generally regarded as “slaves” or as working in “forced servitude”.

We accept that the phrase “commercial activity” chosen by the drafters of the 1961 Convention is vague. The state parties must have expected there to be disputes about what was excepted and what was not. However, here the uncertainty arises because the factors considered relevant are not in any other context regarded as indicia of whether an activity is “commercial” or not, such as the degree of psychological abuse by one counterparty to the other or restrictions on a counterparty’s liberty.

The one aspect of the employment relationship which clearly is “commercial” is the pay. Ms Wong accepts that she was paid something although it was a small fraction of her contractual entitlement. But we accept that trafficking and exploitation are not limited to situations where there is no payment at all. The majority refer to the element of profit on the part of the employer that arises when he obtains the worker’s services for less than he should pay. This, the majority say, is an indicator of the commercial nature of the activity of employing an exploited domestic worker although it does not appear that they regard it as a necessary element. They do not identify what degree of disparity between the pay given to the claimant and an acceptable rate of pay is essential before the employer is regarded as profiting unfairly thereby turning the relationship into the exercise of “commercial activity” for the purposes of article 31(1)(c).

In so far as lower than normal pay is relevant to the issue, it raises another area of uncertainty as to the correct comparator for normal pay. The majority propose a comparison between the worker’s actual pay and the amount for which the worker would “willingly” have provided the services or for which equivalent services could have been purchased in the labour market. Such a test raises serious issues, for example whether the labour market under consideration is the labour market in central London or the labour market in the sending state where Ms Wong was initially employed and where the cost of living is substantially lower.

Reciprocity and risks of retaliation

Professor Denza says in the Introduction to her Commentary:

“… reciprocity forms a constant and effective sanction for the observance of nearly all the rules of the Convention. Every State is both a sending and a receiving State. Its own representatives abroad are in some sense always hostages. Even on minor matters of privilege and protocol, their treatment may be based on reciprocity. For the most part, failure to accord privileges or immunities to diplomatic missions or to their members is immediately apparent and is likely to be met by appropriate countermeasures.”

The risks to which an expansive or unusual interpretation of the exception in article 31(1)(c) may expose the United Kingdom’s diplomats abroad has been commented on in various decisions. It was a point made in the evidence lodged by the Foreign, Commonwealth and Development Office in Barnet. The court in that case was provided with a witness statement of Ms MacMillan MVO, Deputy Director of the Protocol Directorate and Assistant Marshal of the Diplomatic Corps. She referred to article 47(2) of the Diplomatic Convention. Article 47 provides that in the application of its provisions, the receiving state shall not discriminate as between States. But there is an exception in article 47(2) that discrimination shall not be regarded as taking place where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its mission in the sending State. Ms McMillan’s evidence was that the failure of a state to respect the immunities of diplomatic staff in its own territories might expose its own diplomats to “harsher treatment abroad, by way of reprisal”(para 51).

A restrictive application of the immunity granted by article 31 by this court may well be met by a restriction on the immunity granted to UK diplomats in Saudi Arabia. No doubt, as Mr Otty QC submitted, it is most unlikely that UK diplomats are involved in human trafficking or in treating their domestic staff in the way that Ms Wong alleges that she has been treated. But the retaliation does not have to be limited to such a specific tit for tat. The court in Barnet quoted from Ms MacMillan’s evidence making this point:

“(1)

The first is the reality that many of the 192 States Parties to the VCDR are not equipped with fair, effective and independent judicial systems and law enforcement agencies. Our diplomatic staff (and their families) could face politically motivated charges (and possibly arrest and detention), which would both put their safety and security at risk, but also prevent them from carrying [out] their vital work on behalf of the United Kingdom. This would be a particular risk if the mission or instructions were politically unpopular in the relevant receiving State, or if the conditions in that State deteriorated. These sorts of risks are precisely what the rules enshrined in the VCDR were intended to avoid.

(2)

Secondly, an exception to inviolability or immunity made unilaterally on one basis (for example, child welfare) could easily be extended to encompass other factual situations (for example, public security, public morality or blasphemy) and other provisions of the VCDR, not just by the courts and legislature in the United Kingdom, but also by those of other States.” (para 55)

Conclusion

We, like the majority in this appeal, have every sympathy with the plight of trafficked domestic workers. We share the dismay of Lord Wilson at the apparent proliferation of serious cases of domestic servitude here in the UK, particularly in the homes of diplomats: see paras 59 and 68 of Reyes. But there are larger issues of international comity at stake here. We were told during the hearing that Ms Reyes has been unable to enforce the judgment she obtained against Mr Al-Malki after her appeal was allowed by the Supreme Court. The majority in the present appeal accept, as they must, that even if Ms Wong succeeds in her tribunal claim, there will be nothing she can do to enforce the judgment against Mr Basfar. The outcome of Barnet shows that Ms Wong and those wishing to support her have alternative routes to achieve as much as they can hope to achieve from this litigation. The Divisional Court in Barnet records that after the Secretary of State had invited the sending state to waive the diplomatic immunity of the father and family, the sending state refused but recalled the father with immediate effect. Shortly after, the Secretary of State informed the sending state that the father and the rest of the family were personae non gratae and were required to leave the UK at the first opportunity.

All these steps can and should be taken within the parameters of the established international order and without taking the unprecedented step that the majority judgment takes in this appeal.

We would therefore dismiss the appeal.