Diplomatic Immunity Denied By UK Supreme Court In Relation To Alleged Breaches Of Modern Slavery Laws

• Published date: 28 July 2022
• Law Firm: Herbert Smith Freehills
• Author: Mr Andrew Cannon, Mathew Shelley and Hannah Ambrose

London is home to one of the largest diplomatic communities in the world, with over 160 embassies. In a significant judgment by a majority of three, the UK Supreme Court (the Court) in Basfar v Wong [2022] UKSC 20 has confirmed that diplomats are unable to rely on their diplomatic immunity in response to alleged breaches of modern slavery laws. The majority found that the alleged breaches fell within the "commercial activity" exception in Article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961 (the Convention) on the basis that the allegations constituted "modern slavery". The Court also considered that there is a distinction between "modern slavery", which does engage the "commercial activity" exception, and employing a domestic worker, which does not itself constitute the exercise of a "commercial activity" by a diplomatic agent within the meaning of the exception.

Under the Convention (incorporated into domestic law by the Diplomatic Privileges Act 1964), diplomats enjoy immunity from criminal proceedings, and immunity from civil proceedings subject to only very limited exceptions. Article 31(1)(c) of the Convention provides that such an exception will arise in an action relating to any commercial activity exercised by the diplomat outside their official functions, in the country in which they are posted (the commercial activity exception).

In underlying proceedings before an Employment Tribunal (the Tribunal), Ms Wong (a migrant domestic...