Diplomatic Immunity, Modern Slavery and the “Commercial Activity” Exception:  The UK Supreme Court in Basfar v Wong

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Can a diplomat assert their immunity from suit in a claim for breach of employment rights brought by a domestic servant working for them in their residence, in circumstances in which that diplomat has trafficked that servant into the United Kingdom and forced that servant to work in conditions of modern slavery?

In the landmark decision of Basfar v Wong [2022] UKSC 20 handed down on 6 July 2022, the UK Supreme Court, by a majority of three to two, has answered that question in the negative. The Supreme Court held that the diplomat in question would not have immunity from the civil jurisdiction of the courts of the United Kingdom as such a claim falls within the “commercial activity” exception found within Article 31(1)(c) of the 1961 Vienna Convention on Diplomatic Relations (“VCDR”).  According to the Court,  while employment of a domestic worker did not, in itself, ordinarily constitute the exercise of a “commercial activity” by a diplomatic agent, employment that is a form of modern slavery, whether that was forced labour, servitude or trafficking, amounts to a commercial activity practised for personal profit.

Alleged facts in Basfar v Wong

The appellant, Ms Josephine Wong, is a migrant domestic worker who worked in the household of Mr Khalid Basfar, a member of the diplomatic staff of the mission of the Kingdom of Saudi Arabia in the UK.  Ms Wong alleged she was first employed by the diplomatic household of Mr Basfar in Saudi Arabia in November 2015.  She was then brought to the UK to continue working for him in August 2016. In order to obtain a visa to enter the UK, Ms Wong was provided with a contract of employment, stating that she would be employed to work a maximum of eight hours per day, with one day off each week and one month off each year and that she would be provided with sleeping accommodation and paid the national minimum wage.  

Ms Wong alleged that after arriving in the UK, she was confined at all times to Mr Basfar’s house (except to take out the rubbish) and was held virtually incommunicado, being allowed to speak to her family only twice a year using Mr Basfar’s telephone. She was made to work from 7am until 11.30pm each day, with no days off or rest breaks. She was shouted at incessantly and called offensive names. When the family was at home, she was only allowed to eat their left-over food.  

After arriving in the UK, Ms Wong was paid nothing for seven months. When Ms Wong accompanied Mr Basfar and his wife on a holiday trip to Jeddah in July 2017, she was paid approximately £1,800. This was a fraction of her contractual entitlement. She was not paid again.  Ms Wong is said to have escaped from these conditions in May 2018.

Ms Wong subsequently brought a claim against Mr Basfar in an Employment Tribunal for wages and breaches of employment rights.  Mr Basfar applied to have Ms Wong’s claim struck out on the basis he was immune from suit given his diplomatic status.  On the facts alleged, the Employment Tribunal held that Ms Wong’s claim fell within the “commercial activity” exception under Article 31(1)(c) of the VCDR.  Mr Basfar succeeded on appeal to the Employment Appeal Tribunal, but the case was further appealed to the UK Supreme Court, “leapfrogging” the Court of Appeal.

The “commercial activity” exception and Reyes re-visited

The Supreme Court had previously considered the same legal question on similar facts in Reyes v Al-Malki [2017] UKSC 61; [2019] AC 735, but with one key difference. Whilst Mr Basfar was still in post in the present case, the posting of Mr-Malki in Reyes had ended during the course of that litigation.  Having left his diplomatic post and the UK in 2014, Mr Al-Malki was therefore entitled only to immunity on the narrower basis found under Article 39(2) of the VCDR, namely that immunity would continue to subsist only in respect of acts performed in the exercise of his functions as a member of the diplomatic mission. The Supreme Court having found that Mr Al-Malki’s employment of Ms Reyes as a domestic servant did not fall within his official functions, immunity did not apply (paragraphs [48], [55] and [69]).

Although the matter did not strictly speaking fall for consideration in Reyes, the strong minority view (expressed by Lord Sumption, with whom Lord Neuberger agreed) was that if Mr Al-Malki had remained in his post, he would have been immune from suit as the employment of Ms Reyes did not amount to carrying on or participating in carrying on a professional or commercial activity under Article 31(1)(c) VCDR (paragraph [51]).  However, the remaining members of the Supreme Court in Reyes (Baroness Hale PSC and Lords Wilson and Clarke) expressed their doubt as to that (non-binding) answer (paragraphs [57] and [69]).

Article 31(1) of the VCDR states, in relevant part:

“1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.”

As a starting point, all members of the Supreme Court in Basfar appeared to accept that the employment of a domestic worker did not, in itself, ordinarily constitute the exercise of a “commercial activity” by a diplomatic agent within the meaning of the Article 31(1)(c) exception (see paragraphs [27], [42], [111] and [114]).

However, the view of the majority (Lords Briggs & Leggatt, with whom Lord Stephens agreed) was that employment is a voluntary relationship, freely entered into and governed by the terms of a contract.  By contrast, the essence of modern slavery is that it is not freely undertaken (paragraph [43]).  That being so, compelling a migrant worker to provide their labour in circumstances of modern slavery could not reasonably be likened to, for example, paying for dry cleaning or ordinary domestic help (paragraph [57]):

Unlike such day-to-day living services, such exploitation is an abuse of the diplomat’s presence in the receiving State and falls far outside the sphere of ordinary contracts incidental to the daily life of the diplomat and family members which the immunity serves to protect.”

It was sufficient for the majority that Mr Basfar’s treatment of Ms Wong, on the assumed facts, amounted to a form of modern slavery, whether that was forced labour, servitude or trafficking. This showed, in their view, that the relationship between them was not freely entered into, so as to be an ordinary part of Mr Basfar’s daily life in the UK as a resident diplomat.  And it showed Mr Basfar’s conduct to amount to a commercial activity practised for personal profit (paragraph [97]).  On the assumed facts, Mr Basfar had made a “substantial financial gain” from the exploitation of Ms Wong’s labour.  That exploitation was a “systematic activity carried on over a significant period” and therefore accurately described, in the majority’s view, as a commercial activity practised for personal profit (paragraph [56]).

In determining whether Ms Wong’s claim was “relating to” (tracing the wording of Article 31(1)(c) VCDR) the “commercial activity” in question, the majority did not consider that the allegation of human trafficking was essential to the claim made.  The “gravamen” of Ms Wong’s claim was that she was exploited by being forced to work for Mr Basfar in the UK in circumstances of modern slavery (paragraph [99]). Ms Wong’s case would have been “just as cogent” if she was already resident in the UK before working for Mr Basfar, had entered his employment in the UK freely but then found herself subjected to the treatment alleged after entering into his service. The assumed facts of the present case were a “paradigm example of domestic servitude” (paragraph [100]). 

In the view of the minority (Lord Hamblen, Lady Rose), the reason why the normal employment of a domestic worker fell outside the definition of “commercial activity” under Article 31(1)(c) VCDR is because it is an activity 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” (paragraph [112]).   As stated by the minority at paragraph [113] of the judgment:

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.”

The minority was willing to accept that the phrase “commercial activity” in Article 31(1)(c) VCDR could, in a more limited sense, have an ambulatory meaning to encompass forms of business activity (e.g., mining cryptocurrency, designing computer games) that did not exist in 1961 when the VCDR was signed (paragraph [133]).   However, the minority did not consider it appropriate to “make the leap” from developments in the law regarding human trafficking to a conclusion that those developments had affected the meaning of the words in an earlier international instrument like the VCDR.  In the minority’s view, there was nothing in international treaties, State practice or in academic writings to support the proposition that the meaning of “commercial activity” had altered since 1961 to now include trafficked employment of the kind alleged by Ms Wong (paragraphs [113](ii) and [152]).  Forced labour or domestic servitude was not itself a “commercial activity”. Even if Mr Basfar’s treatment of Ms Wong was of an “appalling nature”, as alleged, that did not mean he was engaged in a “commercial activity” (paragraph [153]).

Comment

With 193 States Parties, the VCDR has been described as “a cornerstone of the modern international legal order” and “universal” in application (Denza, Diplomatic Law, 4th ed (2016) at page 1). Under the VCDR, every State is both a sending and receiving State: a State sends its own diplomats abroad whilst simultaneously receiving the diplomats of other States.  Accordingly, reciprocity is said to form “a constant and effective sanction for the observance of nearly all the rules of the Convention” (Denza, at page 2).  

A clear dividing line between the majority and minority views in Basfar is their consideration of reciprocity and the extent to which they considered the Court’s decision regarding the scope of Article 31(1)(c) VCDR could prove problematic for British diplomats working abroad, for example through the risk of retaliatory measures.  

In the majority’s view, there was no evidence to support the existence of such a risk (paragraph [105]).  Notably, the majority observed that if the UK Government had considered this to be a real concern, they would have expected it to have intervened in the current proceedings to say so, as the then Foreign & Commonwealth Office (FCO) did in Reyes in 2017 (paragraph [106]).

In the absence of an intervention by the Foreign, Commonwealth & Development Office (FCDO) in the present case, the minority drew upon the FCDO’s evidence submitted in the form of a witness statement in London Borough of Barnet v Attorney General and the Secretary of State for Foreign, Commonwealth and Development Affairs [2021] EWHC 1253 (Fam)  in support of the existence of the risk to UK diplomats operating abroad (paragraphs [168]-[169]). The minority expressed its concern that the expansion of the Article 31(1)(c) exception risked seriously undermining diplomatic immunity, given the uncertainty of the boundary of what is and is not covered by the exception and the intrusive nature of the enquiry a tribunal will have to conduct to apply the exception in this new way (paragraphs [113](iii) and [155]).  

In this regard, it was recognised by the majority that the line may not be an easy one to draw (paragraph [72]):

The critical distinction is between: (1) ordinary domestic employment arrangements which are incidental to the daily life of a diplomat in the receiving State and do not fall within article 31(1)(c); and (2) exploitation of a domestic worker for profit which amounts to a “commercial activity” when practised by a diplomatic agent.  We recognise that the distinction is not always a clear one.”

However, in the event of a dispute about alleged exploitation of domestic workers by diplomats leading to a evidential hearing, the majority was of the view that the Article 31(1)(c) exception reflected the balance struck by the VCDR States Parties who must have contemplated and accepted the possibility of such an inquiry (paragraph [102]). The possibility of such an inquiry (and presumably any associated disruption to the functions of the mission) was not, in the majority’s view, a reason to exclude an allegation from the scope of Article 31(1)(c).

Conclusion

The tension in cases such as Basfar (or Reyes) between either upholding immunity, likely resulting in inequity to a private individual(s), set against the finding of/interpretation of an exception to immunity which could cause wider repercussions for international comity is a familiar one reflected in this split Supreme Court decision.  The five members of the Court were united in their sympathy for the plight of trafficked domestic workers such as Ms Wong, yet divided in reaching opposing views as to the appropriate disposal of this case.

Having interpreted the Article 31(1)(c) exception within the VCDR in this manner, the Supreme Court’s decision in Basfar would seem a ground-breaking one. It is too early to tell how influential it will be in the longer-term, but it would seem safe to assume that it will now be relied upon as a precedent in other similar cases both in the UK and other jurisdictions abroad.  Whether the risk of retaliation to UK diplomats expressed by the minority is made out remains to be seen.  There is much in the judgment which requires a more considered analysis beyond the scope of this post.  Ms Wong’s own case will now return to the Employment Tribunal to determine the truth of the allegations made.

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John R Morss says

July 21, 2022

Thankyou Chris for this extremely helpful comment on a significant development. Both Ms Wong the courageous complainant, and her principal advocate, are to be warmly congratulated on this result. More broadly, acceptance of a necessarily ambulatory meaning for a key term in the relevant law (here, ‘commercial activity’ in VCDR 31(1)(c)) may sit awkwardly with the claim to universal reciprocity and a ‘cornerstone’ status for VCDR (as per Denza), according to which, one might suppose, any alteration in interpreted meaning threatens (like a loose thread) to unravel the whole glorious edifice. ‘Ambulation’ is apparently at the discretion of national courts, as advised by competing advocates as specific disputes arise; without digressing into the interesting question of why the decisions of national courts should be treated as ‘state practice’ going to CIL, the legitimacy of this Common Law style of development of law in this area of international law, is perhaps to be interrogated.