Jack Hollingworth: Why Basfar v Wong [2022] will not be the final word on Modern Slavery – Jurisdiction and Immunity in the Supreme Court and Abroad’

Basfar v Wong [2022] is exceptional in both result and method. It recognised an exception for diplomatic immunity where a diplomat subjects someone to circumstances of modern slavery. This was achieved by regarding employment in such conditions as a “commercial activity” under the Vienna Convention on Diplomatic Relations 1961 (‘VCDR’).

The Majority’s reasoning also clarifies judicial treatment of human rights arguments and comparative case law. The case has hence revolutionised both modern slavery and judicial methodology within public law cases more broadly.

Nonetheless, Basfar contains a fierce dissent which highlights the non-inevitable nature of the Majority’s conclusions. Additionally, this article argues that Basfar will not be the final word on modern slavery, since, whilst it liberalises diplomatic immunity, the anterior issues of standing and jurisdiction remain unchanged.

Factual and Legal Background

The alleged facts are treated as correct for the purposes of the appeal ([6]). Ms. Wong is a migrant domestic worker working in the household of Mr. Basfar, a diplomat of the Kingdom of Saudi Arabia in the United Kingdom ([1]). During her employment, Ms. Wong was shouted at and had communication with her family restricted ([8]). She was not paid for seven months and subsequently given a lump sum of approximately £1,800 – a fraction of her contractual entitlement ([9]). Ms. Wong brought a claim in the Employment Tribunal for wages and breaches of her employment rights, alleging she is a victim of modern slavery. Mr. Basfar applied to have this claim struck out via diplomatic immunity ([1]).

Diplomatic immunity is conferred by Article 31(1) of the VCDR, which entails immunity from “the criminal jurisdiction of the receiving State”. It also entails immunity from the State’s “civil and administrative jurisdiction”, subject to three exceptions. Article 31(1)(c) excepts “any professional or commercial activity exercised”. These provisions are incorporated into UK domestic law by Section 2(1) of the Diplomatic Privileges Act 1964.

The question for appeal was whether exploiting a domestic worker constitutes “exercising” a “commercial activity” under Article 31(1)(c).

Majority: Lord Briggs and Lord Leggatt (Lord Stephens Agreeing)

The Majority accepted that employing a worker does not itself equate to a ‘commercial activity’ under Article 31(1)(c). However, they rejected Lord Sumption’s contention in Reyes that the ‘ordinary meaning’ of ‘exercising’ a ‘commercial activity’ is “carrying on a business” or “setting up shop” ([27]). Rather, the Majority suggest that comparative case law indicates that ‘commercial activity’ does not include “activities incidental to the ordinary conduct of daily life”, e.g., regular employment ([34]). For instance, at [35] the judgment notes the U.S. decision Tabion v Mufti that a contract between a domestic worker and a diplomat did not fall under Article 31(1)(c). The Majority’s suggestion that compelling one to work in modern slavery conditions is incomparable to an everyday employment relationship thus permits such employment to be regarded as a ‘commercial activity’ ([43]).

Secondly, the Majority regards “personal profit” as demonstrating employment as a commercial activity ([52]). Whilst Mr. Basfar argues that no money was exchanged between them ([53]), the Majority note an ILO Report which argues omissions to pay for “domestic services [which] create an economic value” can be regarded as profit ([54]), rendering employment into a commercial activity ([56]).

Finally, whether ‘commercial activity’ within the VCDR can bear the Majority’s meaning depends upon ambulatory/evolutionary interpretations of international law, since when Article 31(1)(c) was drafted, there is no evidence it was intended to cover modern slavery (Lord Hamblen and Lady Rose, [122]). At [64]-[65], the Majority refer to Costa Rica v Nicaragua [2009]. The ICJ interpreted “commercio” in an 1858 treaty as defined by its “present meaning”. Analogously, the meaning of “commercial activity” under Article 31(1)(c) in 2022 is distinct from its meaning in 1961, and may bear the meaning the Majority ascribe to it ([66]-[67]).

After analysing the evolution of modern slavery within international law, the Majority concluded that Ms. Wong’s claim fell within the “commercial activity” exception under Article 31(1)(c) ([107]).

Dissent: Lord Hamblen and Lady Rose

The Minority agree with the Majority that ordinary employment is not a commercial activity ([111]). They disagree, however, that “the conditions under which a person is employed” can render employment a commercial activity ([113]).

The Minority act upon the same international law principles of interpretation as the Majority. They accept the ambulatory nature of “commercial activity” in Article 31(1)(c), rejecting Lord Sumption’s suggestion in Reyes that the term can “not… vary over time” as inconsistent with Nicaragua ([132]). Nonetheless, they suggest the type of ambulatory meaning in Nicaragua is distinguishable, because the type of commerce in Nicaragua was novel, whereas modern slavery existed in 1961 ([134]). However, this critique overlooks that the Majority’s analysis focuses upon the activity being incidental to everyday life. Under an ambulatory framework, a practice that existed in 1961 can surely be rejected as a non-incident of everyday life in 2022.

Additionally, the Minority critique the Majority’s judgment on consequentialist grounds. They suggest at [168] that it risks exposing the United Kingdom’s diplomats to liability abroad. The Majority respond to this “argument in terrorem” by noting that it does not bear upon the meaning of “commercial activity” in Article 31(1)(c) ([105]) and that the UK Government’s lack of intervention undermines the threat’s apparent severity ([106]).

Moreover, the Minority note the difficulty of defining the scope of “commercial activity” ([164]). However, this overlooks the various factors involved in the determination of employment as modern slavery from [1]-[9], myopically focussing upon disparities in contractual entitlements and pay ([165]).

Methodological Developments: Comparative Caselaw and Human Rights

Beyond the consequences of Basfar, each judgment illustrates a particular judicial methodology towards both comparative case law and human rights. Regarding the former, the Majority expressly referred to the importance of “how [commercial activity] has been interpreted by courts in the United States and Canada” ([29]) before exploring the caselaw at [34]-[35]. Interestingly, at [38], the Majority refer to a prior interpretation of comparative materials by Lord Sumption in Reyes, suggesting that modern comparative analysis is encompassing cross-references to domestic comparative analysis.

Regarding human rights, the Majority rejected the suggestion put forward by the UN Special Rapporteur in Trafficking in Persons that human rights obligations can limit diplomatic immunity ([24]). This arises from the argument in Reyes that the VCDR and Diplomatic Privileges Act must be interpreted to not place the UK in breach of ECHR obligations ([22]). Indeed, Article 4 of the ECHR prohibits slavery, servitude and forced or compulsory labour, confirmed in Rantsev v Cyprus and Russia (2010) to include human trafficking. At [25] and [109], however, the Court notes that Article 31(1)(c) does not contain an exception for violations of international law or human rights.

Standing and Jurisdiction: What Basfar Doesn’t say, and what Coubaly does.

Despite Basfar’s evident liberalisation of both decision-making and results in modern slavery cases, it cannot exist as a sole solution to modern slavery. Basfar involved a contract between Ms. Basfar and Mr. Wong. Following Mr. Wong’s subjection of Ms. Basfar to conditions of modern slavery, this contract provided a verifiable private law basis to bring the claim – contractual breach – and establish Ms. Basfar as a claimant before the Employment Tribunal; Ms. Wong did not face the issue of establishing standing under administrative law. Where contractual breach cannot so simply be established (typical of supply chain cases in which modern slavery claims are prevalent), prospective claimants will face standing as an administrative boundary, which Basfar does not touch upon.

This difficulty is demonstrated by Coubaly v. Cargill [2022] of the United States District Court of Columbia. District Judge Friedrich dismissed the claims of eight Malian citizens, trafficked to farms in Cote d’Ivorie to harvest cocoa beans, against the companies who utilised slavery-derived resources. This was due to the claimants’ lack of standing (and hence the court’s lack of jurisdiction). The causation requirement for standing – that there must be “a fairly traceable connection between the plaintiff’s injury and the complained-of conduct of the defendant” (Steel Co) could not be established, since the claim relied upon a “speculative chain of possibilities” (Clapper). This chain consisted of plaintiffs’ inability to link specific defendants to specific plantations, and the involvement of intermediaries throughout the supply chain. Evidently, administrative standing operates harshly within modern slavery supply chain cases: the movement of resources throughout chains is complex, and intermediaries seemingly immunise companies from plaintiffs’ claims.

Thus, where a prospective claimant/plaintiff does not have a private law basis to bring a claim and must rely upon administrative standing rules to establish the court’s jurisdiction, it is evident that standing is insufficient to vindicate victims’ rights. If Basfar’s ostensibly revolutionary consequences are to be converted into a reality, another revolution is needed within standing and jurisdiction.

Conclusion

Basfar v Wong involves essential developments in how international law is interpreted within the administrative order of England and Wales regarding modern slavery cases. However, this relates solely to the issue of diplomatic immunity. If the liberalisation of access to judgment in modern slavery cases epitomised by Basfar is to continue, further case law is needed within the area of administrative standing.

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