CASE OF FOGARTY v. THE UNITED KINGDOM

1. The case originated in an application (no. 37112/97) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Mary Fogarty (“the applicant”), on 8 July 1997.
2. The applicant alleged, in particular, that she was refused access to a court and discriminated against contrary to Articles 6 § 1 and 14 of the Convention.
3. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).
4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 19 October 1999 the Chamber relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).
5. The President of the Court decided that in the interests of the proper administration of justice, the case should be assigned to the same Grand Chamber as the cases of McElhinney v. Ireland and the United Kingdom (no. 31253/96) and Al-Adsani v. the United Kingdom (no. 35763/97) (Rules 24, 43 § 2 and 71).
6. By a decision of 1 March 2000, following a hearing on admissibility and merits (Rule 54 § 4), the Grand Chamber declared the application admissible.
7. The applicant and the Government each filed written observations on the merits. On 13 September 2000 the Grand Chamber decided, exceptionally, to grant the Government’s request for a further hearing on the merits.
8. On 3 November 2000 the Irish Government indicated that they did not wish to exercise their right to intervene (Article 36 § 1 of the Convention and Rule 61 § 2).
9. A hearing took place in public in the Human Rights Building, Strasbourg, on 15 November 2000 (Rule 59 § 2), jointly with the case of Al-Adsani v. the United Kingdom (no. 35763/97).
There appeared before the Court:
(a) for the GovernmentMs J. Foakes, Foreign and Commonwealth Office, Agent, Mr D. Lloyd Jones, QC, Mr D. Anderson, QC, Counsel;
(b) for the applicantMr B. Emmerson, QC, Counsel, Mr J. Welch, Liberty, Solicitor.
The Court heard addresses by Mr Lloyd Jones, Mr Anderson and Mr Emmerson.
I. THE CIRCUMSTANCES OF THE CASE
10. On 8 November 1993 the applicant commenced employment as an administrative assistant at the United States Embassy in London, in the Foreign Broadcasting Information Service, which is a subsidiary of the Central Intelligence Agency. She was dismissed from her employment in February 1995. Following her dismissal the applicant issued proceedings against the United States Government in the North London Industrial Tribunal, claiming that her dismissal had been the result of sex discrimination contrary to sections 1(1)(a), 4(1)(d) and 6(2)(b) of the Sex Discrimination Act 1975 (see paragraph 15 below). In particular she alleged that she had been the victim of persistent sexual harassment from her supervisor and that working relationships had broken down in consequence. The United States Government defended the claim and did not, at any stage in these proceedings, claim State immunity. On 13 May 1996 the Tribunal upheld the applicant’s complaint. A compensation figure of GBP 12,000 was agreed between the parties.
11. In June 1995, whilst her first claim in the Industrial Tribunal was still pending, the applicant applied for and obtained a fixed term 12 month contract as an administrative assistant within the Foreign Building Operations section of the Embassy. The contract was due to expire in June 1996. In June 1996 and August 1996 (after the finding in her favour by the Industrial Tribunal), the applicant applied for at least two of the following posts at the Embassy of the United States: secretary with the Office of Foreign Litigation of the United States Department of Justice, temporary secretary with the above office and temporary secretary with the International Marketing Centre, which is operated by the United States Foreign Commercial Service. On each occasion her application was unsuccessful.
12. On 15 September 1996 the applicant issued a second application before the Industrial Tribunal. She claimed that the refusal of the Embassy to re-employ her in two of the above posts was a consequence of her previous successful sex discrimination claim, and accordingly constituted victimisation and discrimination within the meaning of sections 4 and 6 of the Sex Discrimination Act 1975.
13. By a letter of 10 January 1997, solicitors acting for the United States notified the Regional Secretary to the Industrial Tribunal that the United States Government intended to claim immunity from the jurisdiction of the Tribunal under sections 1 and 16(1)(a) of the State Immunity Act 1978 (“the 1978 Act”: see paragraph 16 below). The letter enclosed an affidavit sworn by the First Secretary at the Embassy, deposing to the fact that each of the posts for which the applicant had applied were part of the administrative and technical staff of the Embassy, and accordingly fell within the ambit of the immunity imposed by section 16(1)(a) of the 1978 Act.
14. On 6 February 1997 the applicant received the advice of counsel, to the effect that the United States Government were entitled to claim immunity under the 1978 Act, and that once immunity was properly asserted there was no means by which a court or tribunal in the United Kingdom could accept jurisdiction to entertain the application. Accordingly, the applicant was advised that she had no remedy in domestic law.
15. The Sex Discrimination Act 1975 (“the 1975 Act”) creates a statutory cause of action which arises when an employer treats an employee or a potential employee less favourably by reason of her sex (“sex discrimination”), or by reason of the fact that she has taken or intends to take proceedings against any person under the 1975 Act (“victimisation”).
Section 1(1) of the Act defines “sex discrimination” as follows:
“A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if: (a) on the ground of her sex he treats her less favourably than he treats or would treat a man ...”
Section 4(1) of the Act defines “victimisation” as follows:
“A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, or ... (d) alleged that the discriminator or any other person has committed an act which ... would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970 ...”
Section 6 of this Act defines the circumstances in which it is unlawful to discriminate against employees and applicants, on the grounds of sex discrimination or victimisation, as follows:
“(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman: (a) in the arrangements he makes for the purpose of determining who should be offered that employment, or ... (c) by refusing or deliberately omitting to offer her that employment.”
(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her ... (b) by dismissing her, or subjecting her to any other detriment.”
16. The United Kingdom’s State Immunity Act 1978 provides, inter alia, as follows:
“1(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act. … 4(1) A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there. 4(2) Subject to sub-sections (3) and (4) below, this section does not apply if- (a) at the time when the proceedings are brought the individual is a national of the State concerned; or (b) at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or (c) the parties to the contract have otherwise agreed in writing. 4(3) Where the work is for an office, agency or establishment maintained by the State in the United Kingdom for commercial purposes, sub-section (2)(a) and (b) above do not exclude the application of this section unless the individual was, at the time when the contract was made, habitually resident in that State. … 16(1) This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968; and:- (a) Section 4 above does not apply to proceedings concerning the employment of the member of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the member of a consular post within the meaning of the Convention scheduled to said Act of 1968. ...”
17. Article 1 of the Vienna Convention on Diplomatic Relations which is scheduled to the Diplomatic Privileges Act 1964 provides the following definitions:
“(b) the ‘members of the mission’ are the head of the mission and the members of staff of the mission; (c) the ‘members of staff of the mission’ are the members of diplomatic staff or the administrative and technical staff, and of the service staff of the mission. ... (f) the ‘members of the administrative and technical staff’ are the members of the staff of the mission employed in the administrative and technical service of the mission.”
18. The 1972 European Convention on State Immunity (“the Basle Convention”), entered into force on 11 June 1976 after its ratification by three States. It has now been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kingdom) and signed by one other State (Portugal). It entered into force in respect of the United Kingdom on 4 October 1979, and provides, inter alia:
“1. A Contracting State cannot claim immunity from the jurisdiction of a Court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed in the territory of the State of the forum. 2. Paragraph 1 shall not apply where: (a) the individual is a national of the employing State at the time when the proceedings were brought; (b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually a resident in that State; or (c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the Courts of that State have exclusive jurisdiction by reason of the subject-matter. 3. Where the work is done for an office, agency or other establishment referred to in Article 7, paragraphs 2(a) and (b) of the present article apply only if, at the time the contract was entered into, the individual had his habitual residence in the Contracting State which employs him.”
“Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.”
19. The International Law Commission’s Draft Articles on Jurisdictional Immunities of States and Their Property, submitted to the General Assembly of the United Nations ((1991), II(2) YBILC 13), provides at Article 11, paragraph 1, that:
“ a State cannot invoke immunity ... in a proceeding which relates to a contract of employment between the State and an individual for work performed in the territory of [the host] State.”
However, this provision is specifically disapplied where “the subject of the proceedings is the recruitment, renewal of employment or reinstatement of the individual” and where “the employee has been recruited to perform functions closely related to the exercise of governmental authority”.
Although there is no explicit reference to employment at diplomatic or consular missions in these provisions, the commentary indicates that the latter exception was intended to apply in such a context and that all employees at such missions would be precluded from bringing suit on the basis of State immunity.
20. The Committee on State Immunity of the International Law Association adopted in 1982 its Draft Convention on State Immunity, Article IIIC of which dealt with contracts of employment and was similar in its terms to Article 5 of the Basle Convention. An amendment was added to Article IIIC at the ILA’s 1994 conference, providing for immunity to be granted where “the employee was appointed under the public (administrative) law of the foreign state such as, inter alia, members of the mission, diplomatic, consular or military staff”. In the explanatory commentary on the amendment the Committee stated that it wished “to make clear that the employment relationship of any and all diplomatic and consular staff and other members of the mission should be immune from the jurisdiction of the courts of the forum state”.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
21. The applicant complained that, as a result of the doctrine of State immunity, she had been denied access to court, contrary to Article 6 § 1 of the Convention, which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
A. Applicability of Article 6 § 1 of the Convention
1. The submissions of the parties
22. The Government contended that Article 6 § 1 of the Convention did not apply, because the applicant had no actionable domestic claim. The principle of sovereign immunity removed the dispute from the competence of the national courts, which could not assert jurisdiction over the internal affairs of foreign diplomatic missions. Secondly, with reference to Pellegrin v. France, [GC], no. 28541, §§ 64-67, ECHR 1999, they submitted that there was no “civil” right involved, because questions of employment of members of diplomatic missions fall within the core of sovereign power and thus form part of public law.
23. The applicant argued that there was a “right” under domestic law to be free from sex discrimination, as evidenced by her first successful claim against the Embassy. Sovereign immunity did not extinguish the right but simply prevented the courts from examining disputes thereon. Moreover, the right was “civil”. The posts for which she had applied did not fall within the scope of the Pellegrin exception. They were of a strictly administrative or secretarial character and they would neither have required nor enabled her to wield a portion of the State’s sovereign power.
24. The Court recalls its constant case-law to the effect that Article 6 § 1 does not itself guarantee any particular content for “civil rights and obligations” in the substantive law of the Contracting States. It extends only to contestations (disputes) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law (see Z. and Others v. the United Kingdom, [GC], no. 29392/95, § 87, ECHR 2001, and the authorities cited therein).
25. Whether a person has an actionable domestic claim may depend not only on the content, properly speaking, of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court. In the latter kind of case Article 6 § 1 may be applicable. Certainly the Convention enforcement bodies may not create by way of interpretation of Article 6 § 1 a substantive civil right which has no legal basis in the State concerned. However, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 - namely that civil claims must be capable of being submitted to a judge for adjudication - if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons (see the Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, § 65).
26. Section 6 of the Sex Discrimination Act 1975 (“the 1975 Act”: see paragraph 15 above) creates a statutory right which arises, inter alia, when an employer refuses to employ a woman on grounds of sex discrimination or by reason of the fact that she has already taken proceedings under the 1975 Act. Thus, the proceedings which the applicant intended to pursue were for damages for a cause of action well known to English law. The Court does not accept the Government’s plea that because of the operation of State immunity she did not have a substantive right under domestic law. It notes that an action against a State is not barred in limine : if the defendant State does not choose to claim immunity, the action will proceed to a hearing and judgment, as occurred with the first discrimination action brought by the applicant (see paragraph 10 above).
The Court is, therefore, satisfied that the grant of immunity is to be seen not as qualifying a substantive right but as a procedural bar, preventing the applicant from bringing her claim before the Industrial Tribunal (see, mutatis mutandis, Tinnelly and Sons Ltd and McElduff v. the United Kingdom, nos. 20390/92 and 21322/93, § 62, ECHR 1998-IV).
27. The Government have also submitted that because the applicant’s claim related to recruitment to the United States’ Embassy, it did not concern a “civil right”.
28. The Court recalls that in the above mentioned Pellegrin judgment, it adopted a functional test for the purposes of determining the applicability of Article 6 § 1 to employment disputes involving public servants, based on the nature of the employee’s duties and responsibilities. An employment dispute is excluded from the scope of Article 6 § 1 if it concerns a public servant whose duties typify the specific activities of the public service in so far as he or she acts as the depository of public authority responsible for protecting the general interests of the State. The question therefore arises whether or not the applicant’s case falls within this category. However, for the reasons set out in the following paragraphs, the Court does not find it necessary to determine this issue, and will proceed on the assumption that Article 6 is applicable.
B. Compliance with Article 6 § 1 of the Convention
1. The submissions of the parties
29. The Government argued that if there was any restriction to the right of access to court, it pursued a legitimate aim, namely promoting respect for the independence and equality of other sovereign States in accordance with public international law.
The restriction was, moreover, proportionate, since section 16(1)(a) of the 1978 Act was a justifiable reflection of the principles of public international law that were its source. In this connection, the Government referred to an article by Richard Garnett (“State Immunity in Employment Matters” in International and Comparative Law Quarterly, [vol. 46, January 1997], pp. 81 - 124) in which the author noted a variety of approaches by States with regard to according immunity to other States in employment matters. He concluded that the variety of approaches suggested that States had difficulty in agreeing where the line should be drawn. On the specific question of the application of State immunity to claims by employees of embassies and consulates, he noted a division between States which based their policy on the context or place of employment (including the United Kingdom and Germany), and those which advocated a relaxation of the strict exclusion of local jurisdiction in the case of employment at a diplomatic mission (including the United States and most European civil law countries).
30. For the Government, selection of embassy staff was a sovereign act jure imperii. Even the service staff of an embassy might be involved in sovereign activities and have access to confidential information. Any adjudication upon the fairness of the dismissal of an embassy employee or a decision whether or not to employ her would involve an investigation into the internal organisation of the embassy which would be an interference with the sovereign functions of the State. Given the difficulty in distinguishing between acts jure imperii and acts jure gestionis, it was appropriate to allow States a considerable margin of appreciation and the United Kingdom legislation fell within that margin. Article 5 of the Basle Convention, read in the light of its Article 32 (see paragraph 18 above), showed that the drafters of that Convention wanted to exclude from its scope matters in the exercise of the functions of diplomatic missions, including recruitment for employment in embassies. The practice of other Contracting States did not support the applicant’s claims and the practice of the United Kingdom vis-à-vis its own embassy personnel was irrelevant.
31. The applicant accepted that section 16(1)(a) of the 1978 Act pursued a legitimate aim. However, she considered that it introduced a disproportionate limitation to the right of access to court for four reasons.
First, she contended that since her claim concerned sex discrimination, freedom from which is one of the core values of a democratic society, it was disproportionate to block her access to court in respect of it. Secondly, she pointed out that there was no alternative means available to her that could have provided a remedy for this complaint, since the United States was clearly not prepared to exercise jurisdiction. Thirdly, in the applicant’s submission, the United Kingdom was not obliged under international law to grant immunity in respect of her claim. The tendency towards restricting the scope of State immunity was reflected in Articles 5 and 7 of the Basle Convention (see paragraph 18 above) and the Government’s understanding of Article 5 of that Convention was not supported by the general practice of the other members of the Council of Europe or by academic commentators. The appointment of a member of a mission was not covered by Article 32 of the 1972 Convention. In practice, the United Kingdom did not itself claim absolute immunity in respect of disputes between foreign employees and British embassies and the United States did not consider itself obliged under international law to confer an immunity in respect of all embassy employment disputes. It followed that absolute sovereign immunity was not required by considerations of international comity. Moreover, the International Law Commission was of the view that disputes concerning habitual residents of the forum State involving functions not closely connected with sovereign acts of government were not the appropriate subject of a claim to State immunity where the subject matter of the dispute did not involve a court ordering another State to take on an employee. Fourthly, the United States had not claimed immunity in relation to the applicant’s first Industrial Tribunal claim. If immunity was not considered necessary in respect of the first claim, it was difficult to see how it could genuinely be necessary to meet the requirements of international co-operation in relation to the second claim.
32. In the Golder case the Court held that the procedural guarantees laid down in Article 6 concerning fairness, publicity and promptness would be meaningless in the absence of any protection for the pre-condition for the enjoyment of those guarantees, namely, access to court. It established this as an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of arbitrary power which underlie much of the Convention. Thus, Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, pp. 13-18, §§ 28-36).
33. The right of access to court is not, however, absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, ECHR 1999-I, § 59).
34. The Court must first examine whether the limitation pursued a legitimate aim. It notes in this connection that sovereign immunity is a concept of international law, developed out of the principle par in parem non habet imperium, by virtue of which one State shall not be subject to the jurisdiction of another State. The Court considers that the grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty.
35. The Court must next assess whether the restriction was proportionate to the aim pursued. It recalls that the Convention has to be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, and that Article 31 § 3 (c) of that treaty indicates that account is to be taken of “any relevant rules of international law applicable in the relations between the parties”. The Convention, including Article 6, cannot be interpreted in a vacuum. The Court must be mindful of the Convention’s special character as a human rights treaty, and it must also take the relevant rules of international law into account (see, mutatis mutandis, the Loizidou v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, § 43). The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity.
36. It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 § 1. Just as the right of access to court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity.
37. The Court observes that, on the material before it (see paragraphs 16-20, 29 and 31 above), there appears to be a trend in international and comparative law towards limiting State immunity in respect of employment-related disputes. However, where the proceedings relate to employment in a foreign mission or embassy, international practice is divided on the question whether State immunity continues to apply and, if it does so apply, whether it covers disputes relating to the contracts of all staff or only more senior members of the mission. Certainly, it cannot be said that the United Kingdom is alone in holding that immunity attaches to suits by employees at diplomatic missions or that, in affording such immunity, the United Kingdom falls outside any currently accepted international standards.
38. The Court further observes that the proceedings which the applicant wished to bring did not concern the contractual rights of a current embassy employee, but instead related to alleged discrimination in the recruitment process. Questions relating to the recruitment of staff to missions and embassies may by their very nature involve sensitive and confidential issues, related, inter alia, to the diplomatic and organisational policy of a foreign State. The Court is not aware of any trend in international law towards a relaxation of the rule of State immunity as regards issues of recruitment to foreign missions. In this respect, the Court notes that it appears clearly from the materials referred to above (see paragraph 19) that the International Law Commission did not intend to exclude the application of State immunity where the subject of proceedings was recruitment, including recruitment to a diplomatic mission.
39. In these circumstances, the Court considers that, in conferring immunity on the United States in the present case by virtue of the provisions of the 1978 Act, the United Kingdom cannot be said to have exceeded the margin of appreciation allowed to States in limiting an individual’s access to court.
It follows that there has been no violation of Article 6 § 1 in this case.
II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION
40. The applicant submitted that, since the proceedings she sought to pursue were to enforce an anti-discrimination provision, the restriction of access to court engaged Article 14 in conjunction with Article 6 § 1 of the Convention. Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
41. The Government argued that Article 14 did not apply because Article 6 was inapplicable. In the alternative, they reasoned that the applicant was not treated differently from any other person wishing to sue the United States Embassy in respect of employment.
42. The Court recalls that the applicant was prevented from pursuing her claim in the Industrial Tribunal by virtue of sections 1 and 16(1)(a) of the 1978 Act (see paragraph 16 above), which confer an immunity in respect of proceedings concerning employment within the staff, including the administrative and technical staff, of an embassy. This immunity applies in relation to all such employment-related disputes, irrespective of their subject-matter and of the sex, nationality, place of residence or other attributes of the complainant. It cannot therefore be said that the applicant was treated any differently from any other person wishing to bring employment-related proceedings against an embassy, or that the restriction placed on her right to access to court was discriminatory.
43. It follows that there has been no violation of Article 14 in conjunction with Article 6 § 1 of the Convention in this case.
1. Holds by sixteen votes to one that there has been no violation of Article 6 § 1 of the Convention;