Government Of The Kingdom Of Saudia Arabia v Ahmed [1993] UKEAT 276_93_0810

EAT
Government Of The Kingdom Of Saudia Arabia v Ahmed
[1993] UKEAT 276_93_0810 · 1993-10-08
MR JUSTICE KNOX : The Appellant before us is The Government of the Kingdom of Saudi Arabia. It appeals from a preliminary decision of the Industrial Tribunal sitting at London South on 17 February 1993 which was sent to the parties on 10 March 1993 to the effect that the Tribunal had jurisdiction in that case. This turns on the question of Government immunity.The proceedings before the Industrial Tribunal were an Originating Application in which the Applicant Mrs Ahmed who was the Respondent before us, claimed that she had been unfairly dismissed from her post as a Bilingual Secretary with the Saudi Arabian Embassy in London and she also had a claim in respect of a refusal to give reasons for her dismissal.The only issue before this Tribunal, as indeed before the Industrial Tribunal, in the hearing which is under appeal, was that of jurisdiction which it is common ground turns on the issue as to State Immunity. We therefore, in common with the Industrial Tribunal, say nothing about the merits of the substantive dispute between the parties. We have had the benefit of helpful argument on both sides and have reached the conclusion that this Appeal should be allowed.The Industrial Tribunal reached a majority decision on one of the two points which it had to decide. The point upon which the majority, consisting of the lay members, differed from the Chairman was on the question whether or not there had been waiver of immunity within S.2 of the State Immunity Act 1978. That section reads as follows:
"2 (1) A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom.
(2) A State may submit after the dispute giving rise to the proceedings has arisen or by a prior written agreement; but a provision in any agreement that it is to be governed by the law of the United Kingdom is not to be regarded as a submission."I need not read sub-sections (3), (4), (5) and (6). Sub-section (7) reads as follows:
"The head of a State's diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to submit on behalf of the State in respect of any proceedings; and any person who has entered into a contract on behalf of and with the authority of a State shall be deemed to have authority to submit on its behalf in respect of proceedings arising out of the contract."
That section dealing with submission to jurisdiction is a qualification on the general immunity from jurisdiction which is conferred by S.1 of the same Act, subsection (1) of which reads:
"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."
There is no doubt that in the present proceedings the Government of the Kingdom of Saudi Arabia is a state, equally there is no doubt that the Industrial Tribunal fell within the definition of courts of the United Kingdom. There are definition provisions that make that clear but it is not necessary to refer to them.The factual background is within a small compass and was derived solely from the evidence that Mrs Ahmed gave to the Industrial Tribunal. It is succinctly stated by the Industrial Tribunal in paragraphs 2 - 6 of its Decision which read as follows:
"She [that is Mrs Ahmed] was employed by the Defence Office of the Saudi Arabian Embassy in the United Kingdom as a secretary. Initially she received no written contract of employment.
In November 1990 consideration was given to the provision of written contracts. The local staff were worried at the prospect. At or after a meeting attended by local staff and the Respondent's military attaché and his assistant, the Applicant received Exhibit A1, a solicitors' letter to the military attaché dated 16 November 1990. The first three paragraphs read:-
"As requested, I am writing to confirm the position under English Law relating to the termination of Contracts of Employment.
Staff members may have rights that are granted specifically by a Contract of Employment, or only those rights that are declared by Statute; I understand that the Embassy Staff do not have Contracts of Employment.If the employment of a staff member is terminated, the statutory provisions will apply, which are now mainly contained in the Employment Protection (Consolidation) Act."At the top of the letter there appears a note in Arabic from the military attaché to his assistant which reads "For your information. Do whatever you think." This, the Applicant believes, referred to the circulation of the letter, but it does not say so."I interpose to add that we were informed during the hearing that the bottom of the superscription of which there is a photograph before this Tribunal, contains an abbreviation in Arabic numerals 5/2 indicating 5 February.Reverting to the Industrial Tribunal's fact finding, paragraphs 5 and 6:
"At the meeting referred to above, a solicitor was in attendance and he advised the Applicant that she had the same rights and protections as any English employee; in the event of termination she could go to an Industrial Tribunal.
In March 1991 the Applicant signed a contract of employment written in Arabic. This was in the standard form of Exhibit R2, the English version."That is the factual background and the Industrial Tribunal's decision on the question of waiver which was solely concerned with the issue whether the letter from which a quotation of three paragraphs was made by the Industrial Tribunal and which I have just read, constituted a prior written agreement within the meaning of S.2(2) of the 1978 Act. There was no question of a submission to the jurisdiction after the dispute had arisen.The majority accepted the argument advanced by the advocate for Mrs Ahmed who was the same gentleman who has appeared before us today and presented the case helpfully on her behalf. That argument was recited in the Industrial Tribunal's Decision in the following terms:
"The Applicant's argument is that the solicitors' letter was distributed to the staff by the authority of the military attaché delegated to his assistant. The contract signed by the Applicant was signed subject to this letter. The term "written agreement" in section 2(2) does not necessarily mean a binding contract. In the alternative, the letter amounts to a contract, in the sense of a collateral contract. The words in paragraph 3 of the letter state that "the statutory provisions will apply". The intention of the letter was to make the staff believe that they would be protected by English statute law."
The majority decision is expressed as follows:
"The majority of the Tribunal (in this case the two industrial members) accept the Applicant's contention. In the absence of any statutory definition of "written agreement" they consider that the solicitors' letter, in the circumstances in which it was written, amounts to a written agreement within the meaning of the Act. They would add, in effect, that the Respondent is estopped from denying that it has submitted to the jurisdiction and that it would be unjust to deprive the Applicant of her remedy in all the circumstances of the case."
The minority view, that of the Chairman, was that there was no written agreement. He took the view that a written agreement should be complete in itself and should not require oral evidence to explain it. If the letter was anything at all he took the view that it was at most evidence of a largely oral agreement. If it was an agreement, it was an agreement that the contract be governed by the law of the United Kingdom. He also took the view that an agreement should be distinguished from a consent and referred to two sections of the Act which he described as helpful in that respect. Finally he found that the head of the Kingdom of Saudi Arabia's mission had not submitted to the jurisdiction in November 1990.Dealing with that aspect of the matter first, we are unable to see that the letter in question emanating from the solicitor asked to advise the military attaché, even taken in conjunction with the superscription in Arabic by the military attaché himself, can constitute a prior written agreement. Mr Bibby for Mrs Ahmed accepted that agreement in this context must necessarily refer to something in the nature of a bi-lateral rather than entirely unilateral operation, so that a mere unilateral consent would not, he accepted, be sufficient. He did submit to us that there was no necessity for consideration to be shown but a written agreement was capable of referring to a contract between two people without consideration just as it was to a contract between two people with consideration.There were rival conclusions drawn from matter which both parties accepted was admissible in order to construe the terms of the State Immunity Act 1978 and that in particular was the European Convention on the subject to which our attention was drawn, the European Convention on State Immunity and Additional Protocol (Command 5081). It was drawn to our attention that Article 2 of that Convention which preceded the State Immunity Act 1978, read as follows:
"A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if it has undertaken to submit to the jurisdiction of that court either: (a) by international agreement; (b) by an express term contained in a contract in writing; or (c) by an express consent given after a dispute between the parties has arisen."
The arguments on both sides in relation to that article were on the one hand on behalf of the Kingdom of Saudi Arabia that the evident intention of the State Immunity Act was to give effect to the provisions of that article, and that that article made it perfectly clear that express terms in a contract in writing were what was intended to satisfy the requirements of a submission to the jurisdiction of a court and that if one took the provisions of the State Immunity Act 1978 one could see reflected the three aspects in Article 2 of the preceding Convention. That was because there is a provision that a written agreement is to be treated as extending to include treaties and that the express term contained in a contract in writing and an express consent given after a dispute between the parties has arisen, are amalgamated into the terms of section 2(2) which I have read and need not repeat.On the other hand Mr Bibby ingeniously submitted to us that far from there being a conclusion properly to be drawn that section 2(2) should reflect the provisions of Article 2 of the preceding Convention, the difference in terminology in the Act from the corresponding provision of the Convention indicated a positive intention by Parliament to depart from and extend the ambit of the terms of the Convention. He submitted, correctly as it seems to us, that an expansion of the terms upon which there could be an undertaking to submit to jurisdiction of another State, would not necessarily constitute a failure to give effect to the Convention. What would be involved would be an enactment which not only gave effect to the Convention but went beyond it.In our view the proper presumption is that Parliament was intending to give effect of the Convention rather than to extend its ambit and we do find that Article 2 of the Convention is a strong pointer in favour of the construction for which the Kingdom of Saudi Arabia argued of the expression "prior written agreement" namely that there should be a prior contractual written agreement, or a prior written agreement in the nature of a contract.In any event it seems to us impossible to construe in a realistic sense the letter - the first three paragraphs of which the Industrial Tribunal quoted - as a prior written agreement to submit to the jurisdiction. In terms it is a solicitor's expression of the position under English Law. It is of course to be observed that it makes no reference at any stage to the provisions of the State Immunity Act 1978 and is therefore on that basis very much less than a complete statement of what the relevant English Law was. However that may be it is clear enough that the solicitor as such was not intending to do anything in the nature of entering into an agreement. Equally when the military attaché wrote the Arabic superscription saying "do what you think fit", he too was not in terms entering into an agreement with another party.It is only when one adduces the oral evidence that Mrs Ahmed gave to the Industrial Tribunal that this document with its superscription can even be argued to enter the field of written agreement and it seems to us in principle that a document which needs to be supplemented by oral evidence in order to become part of an agreement between two parties is something which falls significantly short of itself being a prior written agreement. There is in fact authority to which we had our attention drawn for the proposition that a document which only has part of an agreement in it does not itself constitute a written agreement. We refer in particular to Kharashkoma Exploring & Prospecting Syndicate [1897] 2Ch 451 at p.464 of which

Lord Justice Lindley said:

"...and if you have a document in writing which does not shew in writing what is the consideration, it is not a contract at all in writing - in other words, a document which only discloses part of a contract is not a contract in writing."
That seems to us to encapsulate in a sentence the requirement that if there is to be an agreement in writing you must have the whole of the agreement in writing and that there was not in this case. That is sufficient to dispose of that aspect of the case before us.The other quite separate point arises out of sections 4 and 16 of the State Immunity Act 1978. Section 4(1) provides:
"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.
Pausing there for a moment, if that was all there was to it obviously there would be no immunity in this case because there is no doubt but that the contract of employment under which Mrs Ahmed worked was made in the United Kingdom; her work was to be performed here and it related to a contract of employment between the State and her but that is of course not the whole of the picture under the Act because that exclusion of State Immunity is itself excluded in the circumstances described in section 16(1)(a) of the 1978 Act. That reads as follows:
"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 members of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the members of a consular post within the meaning of the Convention scheduled to the said Act of 1968"
So that where section 16(1)(a) applies the disapplication of section 1 contained in section 4 is itself disapplied so that one returns to the original status under section 1 of there being State Immunity and that raises the question whether there were in the present case proceedings concerning the employment of the members of a mission within the meaning of the convention scheduled to the 1964 Act.That convention, in Article 1 has a series of definitions, notably in Article 1(b):the "members of the mission" are the head of the mission and the members of the staff of the mission" (c) defines that latter expression:
"the "members of the staff of the mission" are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission"
and the middle phrase "members of the administrative and technical staff" is defined in a somewhat circular manner as being:
"the members of the staff of the mission employed in the administrative and technical service of the mission"
The total effect of those rather portentous definitions was accepted, rightly as it seems to us, by Mr Bibby as having the effect of including Mrs Ahmed who in her capacity as a Bilingual Secretary was fairly clearly employed in the administrative and technical service of the mission.The question therefore is whether there is to be introduced into section 16(1)(a) the further provisions of the Convention, in this case the Vienna Convention, which govern the extent to which members of diplomatic mission in the several categories that I have mentioned are entitled to immunity, are limited in point of time particularly in relation to those who are already in the territory of the receiving State when appointed to their diplomatic post. That refers one into Article 39(1) which reads as follows:
"Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed."
There is no doubt that the relevant Ministry in this country is the Ministry of Foreign and Commonwealth Affairs. Equally there is no doubt that there was no evidence before the Industrial Tribunal that the appointment of Mrs Ahmed as secretary had been notified to the FCO. The question therefore arises whether the circumstance that Mrs Ahmed because she was already in the United Kingdom when appointed, undoubtedly could not have exercised and enjoyed the privileges and immunities that earlier articles of that convention said that she should be entitled to because there had not been a notification to the FCO of her appointment extends to qualify the State Immunity that otherwise would fairly clearly be available to the Kingdom of Saudi Arabia because of the operation of section 16(1)(a) of the 1978 Act excluding section 4 and restoring section 1 to its full effect.This process seems to us to involve an implication into section 16(1)(a) for which there is no warrant to be found in the State Immunity Act. The expression "proceedings concerning the employment of the members of the mission within the meaning of the Convention scheduled to the said Act of 1964" are perfectly clear and require one to look and see whether in the light of that Convention the employment in question is the employment of a member of a mission and a person does not, as we understand it, fail to become a member of a mission if employed when already within the territory of the receiving State because there has not yet been a notification to the relevant Ministry. The two seem to us to be dealing with quite separate matters. Article 39 qualifies the extent to which immunities can be enjoyed. The immunities are stated in preceding articles. Article 1 on the other hand which contains the definitions of a member of a mission is the definition section which is referred to in Section 16(1)(a) of the 1978 Act and we see no basis upon which there should be any implication to cut down the plain meaning of the paragraph in question.We were in fact referred to authority in Regina v Secretary of State for The Home Department, Ex parte Bagga [1991] 1QB 485 where a not entirely dissimilar question arose under section 8(3) of the Immigration Act 1971. That subsection set out in the headnote to that case reads as follows:
"The provisions of this Act relating to those who are not [British citizens] shall not apply to any person so long as he is a member of a mission (within the meaning of the Diplomatic Privileges Act 1964), a person who is a member of the family and forms part of the household of such a member, or a person otherwise entitled to the like immunity from jurisdiction as is conferred by that Act on a diplomatic agent."
One of the several issues that arose was the scope of that subsection and a question which arose was described by

Lord Justice Parker at page 495 in the following terms:

"Does the exemption from immigration control only apply upon notification by the mission or embassy to the Foreign and Commonwealth Office of appointment or employment and, possibly, acceptance by that office of the appointment, or can it apply prior to notification (and acceptance)?
So far as diplomatic immunities are concerned apart from authority there could in my view only be one answer. It is abundantly clear from article 39 of the Convention that the immunities will be enjoyed on entry to take up a post, and it is only when a person already in the country is appointed that the immunities depend on notification. Indeed this must, as it seems to me, necessarily be so because the article 36 immunities, if to be enjoyed at all, can only be enjoyed at time of original entry to take up post.We are, however, not concerned with enjoyment of diplomatic immunities, but with exemption from immigration control. This is dependent, and dependent only, on whether the person concerned " is a member of a mission (within the meaning of the Act of 1964) or is a member of the family and forms part of the household of such a member, or is a person otherwise entitled to the like immunity from jurisdiction as is conferred by that act on a diplomatic agent."For those reasons the learned Lord Justice came to the conclusion that the question before the court on that issue involved only the determination of the question whether the person had in fact been appointed to some post in the mission, be it diplomatic, administrative, technical or service appointment, or was in fact employed by the mission in one or other of such categories.

Lord Justice Leggatt put the point with (if I may say so) characteristic brevity when he said:

"There is nothing in the Act which imports any requirement of notification, nor any stipulation that a person is not to become a member of the staff of a mission until the Foreign Office has been informed of the fact that that has happened."
and a little further on:
"A priori there is therefore no ground for introducing a requirement for notification as a condition precedent to the acquisition of the status..."
and he accepted a submission that notification was not constitutive of the status of a member of a mission but a consequence of it.We find that line of reasoning entirely in parallel with what seems to us to be the proper construction to be placed on section 16(1)(a) of the Act of 1978 and we treat it as corroboration of the view that we otherwise would have formed on the subject.There were other Immigration Act cases to which Mr Bibby drew our attention which lent some support to the submission that he made that at any rate in the context of immigration, there should be insofar as practicable coterminosity between the exercise of the privileges of immunity by the diplomat - using the expression in the widest sense of the word - on the one hand and his or her entitlement to freedom from immigration control on the other.Those cases seem to us not to stand with the later decision of the Court of Appeal in ex parte Bagga , but in any event also to be distinguishable because they are dealing with immigration control and do not raise the question whether one should import into the fairly clear restoration of State Immunity considerations of the availability of the immunities otherwise conferred on members of missions.It therefore seems to us that on this point on which the Industrial Tribunal in fact found in favour of the Kingdom of Saudi Arabia, it reached the correct conclusion and for those reasons the Appeal will be allowed and the cross-appeal by Mrs Ahmed against the decision that section 16 did apply will be dismissed. There will therefore need to be substituted a declaration that the Industrial Tribunal has no jurisdiction in this matter.