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London Borough of Barnet v AG & Others [2021] EWHC 1253

The case concerned children living in the London Borough of Barnet (LBB) about whom the LBB had serious concerns. In January 2020 the 6 children were aged 5, 9, 14, 17 and (twins) 18. Safeguarding referrals were received in November 2019 and January 2020. The children’s parents were a diplomat and his wife, and in November 2019 refused consent for the children to be spoken to at home or at school, relying on diplomatic immunity. After the January 2020 referral the police informed the LBB that diplomatic immunity prevented a police investigation. LBB spoke to the children at school, and the children made allegations of significant physical mistreatment, on occasions requiring medical treatment. The parents claimed that diplomatic immunity prevented the LBB from placing any information about them before the court.

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LBB applied for EPOs.  That application was transferred to Mostyn J given its complexity, and he initially made no order, and listed the application for ICOs for a hearing which would address the issue of diplomatic immunity.

In March 2020 the LA invited Mostyn J to interpret the Vienna Convention on Diplomatic Relations ("the VCDR") (incorporated into English law via the Diplomatic Privileges Act 1964 ("the DPA")) in a way which was compatible with the Human Rights Act s3 (which requires primary legislation to be given effect in a way which is compatible with ECHR rights "so far as it is possible to do so").  He concluded this was not possible, as principles of statutory construction would prevent him from inferring a tacit exception to the Vienna Convention based on safeguarding children at risk.  He stayed the proceedings, also noting there had been no application for a declaration of incompatibility pursuant to HRA s4, i.e. a declaration that the DPA was incompatible with the HRA. 

On 6 April the Secretary of State informed the sending state that the family were personae non grata and required to leave.  On 9 April the twins (aged 18) sought asylum, alleging that they were subjected to physical and verbal abuse.  The next two children (aged 17 and 14) also claimed asylum shortly after this.  The parents left with the two youngest children on 18 April and an ICO was made in relation to the 14 year old child on 20 April.

The LBB subsequently issued an application for a declaration of incompatibility which was listed for a permission hearing.  LBB alleged that the DPA was inconsistent with article 1 (securing the rights defined in ECHR), article 3 (protection from torture or inhuman or degrading treatment or punishment) and article 6 (right to a fair trial).  Permission was granted and the full hearing came before the President and Sir Duncan Ouseley.

In summary the VCDR (which has been ratified wholly or in part by all nation states apart from Palau, the Solomon Islands, South Sudan and Vanuatu) states that the premises of the diplomatic mission are inviolable, as is the private diplomatic residence.  A diplomatic agent is not to be liable to any form of arrest or detention, and enjoys immunity from the criminal, civil and administrative jurisdictions (save for some limited circumstances relating to property claims, succession claims, etc., which were not relevant).  Diplomatic immunity can be waived only by express waiver.  The members of a diplomatic agent's family (unless they are nationals of the receiving state) enjoy the same privileges and immunities as the diplomat.

The court noted that the Vienna Convention on the Law of Treaties 1969 requires treaties to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.  It was noted that the VCDR contained no express exception to immunity for the protection of child members of the household.  Nor does the United Nations Convention on the Rights of the Child address the position of children of those enjoying diplomatic immunity (although the UNCRC is not incorporated into domestic law and so is relevant to the UK's international obligations rather than internal domestic obligations and practices).

The court agreed with the Secretary of State that there were 4 stages when considering the application for a declaration of incompatibility:

(1) Did the immunities and privileges in the DPA prevent LBB and the court taking steps under the Children Act which it would otherwise have done?

(2) On its natural meaning and effect, are the material provisions of the DPA incompatible with ECHR articles 3 and/or 6?

(3) If they are incompatible, can the conflict be resolved by a 'reading down' interpretation?

(4) If the conflict cannot be resolved by 'reading down', should the court exercise its discretion and make a declaration of incompatibility?

The first question was uncontroversial and answered in the affirmative.

Alleged incompatibility between the Diplomatic Protection Act and articles 3 and 6 of the European Convention on Human Rights

The court concluded that there is no conflict between ECHR article 3 and DPA/VCDR.  It was not possible to interpret European Court of Human Rights caselaw, which requires a legal system to be in place to protect children via legislation, investigation and protective measures, to require Council of Europe member states to breach the VCDR.  There is no jurisprudence which requires the breach of VCDR in order to avoid a breach of ECHR.  If the issue were to be addressed, it would require a separately negotiated protocol [in relation to the VCDR].  The court saw no incompatibility if the reason an investigation (whether police or LA) could not proceed further was because diplomatic immunity was not waived.  Similarly, the ECtHR duty under article 3 to take protective measures is to take those measures which are reasonably expected in all the circumstances, and the concept of what is reasonable includes the operation of the VCDR.  It is not reasonable, possible or proportionate to require a state to breach the VCDR due to the importance which it has in reciprocal and global international relations.

The court then considered the role of the UNCRC in interpreting the ECHR and Vienna Convention on the Law of Treaties, and noted that when interpreting treaties, where there are specific and general provisions, specific provisions will usually continue to apply, and general provisions will then apply elsewhere.  The VCDR is a specific regime for all aspects of diplomatic immunity, including the rights and immunities of diplomats' children, so cannot be interpreted as permitting exceptions either by region or topic.  As the ECHR and UNCRC do not purport to cover this specific topic, as a matter of the interpretation of international treaties, the general (ECHR/UNCRC) must yield to the specific (VCDR).

'Reading down'

Whilst strictly obiter given the conclusions on the second question, the court considered the third question in relation to article 3 (whether any conflict could be resolved by 'reading down') and concluded that there is no scope for a reading down interpretation if the provisions of the DPA are incompatible with the ECHR.  There are clear, limited exceptions to diplomatic immunity contained within the VCDR and to 'read down' or 'read in' additional provisions relating to the protection of children would stray beyond interpretation.  The ECtHR could not require Council of Europe member states to breach their VCDR obligations towards each other, let alone non member states.

When considering the second and third questions in relation to article 6, the court noted that the ECtHR had held that preventing a Kuwaiti national from bringing a claim in damages against his government in the UK courts was justifiable, as it pursued the legitimate aim of complying with international law, and the bar was proportionate to the aim.  Member states are permitted a margin of appreciation in conferring immunity.  The same points applied in relation to 'reading down' and article 6 as applied in relation to article 3.

Declaration of incompatibility

Similarly, the court went on to consider the fourth question (any potential declaration of incompatibility) and concluded that they would not have exercised their discretion as Parliament could only remedy any incompatibility by breaching international law (i.e. the VCDR), and so the provisions of HRA 1998 s10 (the power to take remedial action in the event of incompatibility) would not be applicable.

Case summary by Julia Belyavin, Barrister, St John's Chambers

For full case, please see BAILII