23/11/2022

Diplomatic immunity in the Court of Appeal

The Court of Appeal has handed down judgment in a case concerning the interaction of diplomatic immunity under the Vienna Convention of Diplomatic Relations (VCDR) and Article 3 of the European Convention on Human Rights (ECHR).

The appellant, AG, is a child (14 at the relevant time), who lived in the London Borough of Barnet along with her five siblings. Her father was a serving diplomat. As a member of his household, AG, like her father, had certain diplomatic immunities and privileges.

The Local Authority received safeguarding referrals in respect of the children, which they investigated under section 47 of the Children Act 1989. The parents, at various points, invoked their immunity to refuse to allow the children’s schools to provide information to the Local Authority, or to allow the Local Authority to speak with the children.

In the end, the Local Authority applied for an emergency protection order under section 44 of the Children Act 1989. This led to proceedings in front of Mostyn J, which were stayed on the basis of diplomatic immunity in March 2020. At that time, there was no application for a declaration of incompatibility under section 4 of the Human Rights Act 1998 before him. However, Mostyn J indicated that his “very provisional view” was that Articles 31 and 37 of the VCDR were irreconcilable and therefore incompatible with Articles 1 and 3 of the ECHR.

Following the hearing, the FCDO requested the sending State to waive immunity under the VCDR. It refused to do so. This led to the FCDO declaring the diplomat and his family, including AG, personae non gratae under Article 9 of the VCDR. While the diplomat and his wife left the UK at the first opportunity, AG remained in the UK, with her immunity having lapsed. This allowed Mostyn J to make a care order in respect of AG. The Local Authority then brought a Part 8 claim for a declaration of incompatibility, which was heard by the Divisional Court (Sir Andrew McFarlane P and Sir Duncan Ouseley) in March 2021.

The Divisional Court dismissed the Local Authority’s application on 13 May 2021. It found no incompatibility between Article 31 of the VCDR and the ‘systems duty’ in Article 3 of the ECHR, principally because “[t]he ECtHR jurisprudence requirement for a legal system to be in place to protect children through legislation, investigation and then the taking of other measures, cannot be read as also requiring the UK and the other Council of Europe Member States, all parties to the VCDR, to adopt a system which would require them to breach the VCDR towards each other and to other states. The ECHR does not require that in its text, and there is no jurisprudence which requires the Contracting Parties to breach the VCDR in order to avoid a breach of the ECHR. … That is because the ECtHR could not contemplate requiring a breach of an international Convention in order that its obligations be met, let alone a Convention of global reach, well beyond the regional concerns of the ECHR” (see §98).

The Court of Appeal was prepared to accept, for the sake of argument, that there was a “type of conflict” between the VCDR and the protective framework contained in the Children Act 1989, “in the sense that the legal compulsion, which is negated or reduced in effectiveness by the VCDR and its own mechanisms, reduces the overall efficacy of the measures that were in place to protect the children” (see §48). However, the Court considered that the real question was whether the Divisional Court right to decide that neither Article 3 nor ECtHR jurisprudence required the UK to breach the VCDR.

In examining this key issue, the Court of Appeal applied the principles recently re-stated by Lord Reed in R (AB) v Secretary of State for Justice [2022] AC 487 as to the approach that a domestic court should take to the case-law of the ECtHR when construing the ECHR for the purposes of the HRA. The Court could not be “confident, let alone fully confident, that the ECtHR would regard the systems duty in Article 3 as overriding the long-established international law principles enshrined in the VCDR” (see §50). In particular, there was “no previous decision of the ECtHR” to that effect (at §56); indeed, “if there are clues in its jurisprudence, they point in favour of the inviolability of the immunities and privileges under the VCDR” (at §57). In the absence of a decision of the ECtHR clearly suggesting that the UK should breach the VCDR, the Court could not hold that the less effective protection available to the children of diplomats would entail a breach of the ‘systems duty’ under Article 3.

Ultimately, having concluded that the Divisional Court was right to find that neither Article 3 nor ECtHR jurisprudence required the UK to breach the VCDR, the Court of Appeal upheld the Divisional Court’s decision and dismissed the appeal.

Read the judgment.

Belinda McRae appeared on behalf of the Foreign Secretary, instructed by the Government Legal Department, alongside Sir James Eadie KC (Blackstone Chambers), Professor Vaughan Lowe KC (Essex Court Chambers), Joanne Clement KC (11 KBW) and Jason Pobjoy (Blackstone Chambers).