Thu, 16 Jul 2020
The second strand of Professor A V Dicey’s conception of the rule of law is that no man is above the law and everyone, whatever his condition or rank is, is subject to the ordinary laws of the land.
In A Local Authority v AG  EWFC 18 the Family Court was required to consider perhaps the most notable exception to the second strand of Prof Dicey's conception in the context of child protection proceedings. The proceedings concerned the three youngest of six children living in the family home with their parents. The father was a serving diplomat at a diplomatic mission. The proceedings were brought by the local authority within whose catchment area the family resided.
On 25th November 2019, the local authority received reports t the effect that the children were being physically chastised at home. On 16th January 2020, the primary school attended by two of the children made a referral to the local authority detailing the physical chastisement that the children had endured at the hands of their parents. On 20th January 2020, the children were spoken to at school by the local authority’s social workers. The children confirmed the sustained physical abuse that they had suffered at the hands of their parents.
On 21st January 2020, the local authority commenced proceedings seeking care orders in respect of the children under Part IV of the Children Act 1989. The local authority also sought emergency protection orders. The parents and the children were named as respondents to the applications. Given the father’s status as a serving diplomat the case was allocated within the Family Court to High Court judge level.
The proceedings came before Mostyn J on 22nd January 2020 who ruled that the question of the immunity of the father and of members of his family forming his household from civil proceedings needed to be examined carefully and that until that issue had been determined no emergency orders could be made. The local authority was therefore granted permission to withdraw its application for emergency protection orders.
The issue of the immunity of the father and members of his household from the proceedings was considered by Mostyn J at a hearing on 3rd March 2020. At the hearing the Court recognised that the proceedings gave rise to a seemingly irreconcilable clash between two international treaties incorporated into English domestic law by statute. These being the 1961 Vienna Convention on Diplomatic Relations, enacted by the Diplomatic Privileges Act 1964, and the 1953 European Convention on Human Rights, enacted by the Human Rights Act 1998.
In a comprehensive judgment, Mostyn J discussed the the origin of the rule of diplomatic immunity and the evolution of the 1961 Convention by reference to the judgment of Lord Sumption in Reyes v Al-Malki & Anor  UKSC 61,  AC 735. At paragraphs 26 and 27, Mostyn J said this:
“ Lord Sumption explained how the concept of diplomatic immunity stretches back to Roman times, with texts dating from the second century referring to it. Indeed, the first preamble to the 1961 Convention recalls that peoples of all nations from ancient times have recognised the status of diplomatic agents. In this country, as Lord Sumption explained, the concept of diplomatic immunity was first put on a statutory footing by the Diplomatic Privileges Act 1704 following the arrest for debt in the street of the Russian ambassador, who was returning in his coach from an audience with Queen Anne…"
 This Act was repealed and replaced by the 1964 Act. This incorporated the relevant parts of the 1961 Convention. Lord Sumption explains at :
“The text was the result of an intensive process of research, consultation and deliberation extending from 1954 to 1961. Draft articles were submitted to the governments of every member state of the United Nations and were subject to detailed review and comment. Eighty-one states participated in the final conference at Vienna in March and April 1961 which preceded the adoption of the final text. Since its adoption, it has been ratified by 191 states, being every state in the world bar four …”
The relevant provisions of the 1961 Convention, articles 31(1) and 37(1) provide that:
“A diplomatic agent, and members of his family forming part of his household, shall enjoy immunity from the civil jurisdiction of the receiving state except in the case of (a) a real action relating to private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for the purposes of the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state; or (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.”
It was common ground at the hearing that by reason of article 32 of the Vienna Convention neither the father nor members of his family could waive the immunity. It was also accepted by all that none of the stated exceptions to immunity in the 1961 Convention applied to the proceedings.
Be that as it may the formidable line up of Miss Markham QC for the local authority and Professor Delahunty QC for the children’s guardian argued that the Court should interpret the 1961 Convention pursuant to section 3 of the Human Rights Act 1998 to “read in” another exception, namely a public law application to protect children or vulnerable adults at risk within the diplomat’s family forming part of his household.
It was argued, inter alia, that:
(1) When the Vienna Convention was formed, and in 1964 when the Convention was being considered by Parliament, little regard was paid to the welfare and protection of children at risk. Hence the exceptions in Convention and the 1964 Act are exclusively to do with money and property.
(2) With the advent of human rights laws the protection of children has come to the fore. Article 1 of the 1953 European Convention on Human Rights obliges the contracting parties to secure to everyone within their jurisdiction the rights and freedoms defined in the convention.
(3) Article 3 of 1953 Convention provides that no one shall be subjected to inhuman or degrading treatment or punishment. Repeated judgments of the court in Strasbourg have emphasised the importance of protecting children from such treatment. The obligation is reinforced by the 1990 United Nations Convention on the Rights of the Child signed by the UK and the father’s government, article 19(1) of which provides that the State should take all appropriate steps to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents, legal guardian or carers.
(4) Section 3 of the Human Rights Act 1998 requires the court, so far as it is possible to do so, to read and give effect to primary legislation in a way which is compatible with the Convention rights. Accordingly, the only way in which the State can discharge its duty to protect the subject children who are at risk is to “read in” to the 1961 Convention a further exception namely a public law exception to protect children or vulnerable adults at risk within the diplomat’s family forming part of his household.
Mostyn J was not unsympathetic to the arguments made by the local authority and the children’s guardian but he nevertheless concluded that what was being urged on him was a step too far for him to take. His Lordship ruled, inter alia, that:
(1) Section 3 of the Human Rights Act 1998 does not give the court an unfettered power to rewrite legislation to include words which Parliament has wittingly or unwittingly excluded. The phrase “so far as it is possible to do so” limits the power to interpretations which are consistent with the natural language of the statute under consideration.
(2) The innovation advanced by the local authority and the children’s guardian passed well beyond the boundary of interpretation for the following reasons:
a) It violated the plain, natural literal meaning of the words in article 31. The exceptions were framed after considerable debate and were obviously intended to be a finite list.
b) The Vienna Convention must mean the same thing in all the 191 states that have signed it. The majority of these will not have subscribed to the European Convention
c) The foundation of the Vienna Convention is the idea of reciprocity. A significant purpose of conferring diplomatic immunity on foreign diplomatic personnel in Britain is to ensure that British diplomatic personnel overseas enjoy corresponding immunities.
d) The principle of immunity for serving diplomats and their families is one of the most important tenets of civilised and peaceable relations between nation states. It may be abused, but that is a price that must be paid in order to uphold the higher principle.
Accordingly, Mostyn J held that by virtue of the principle of diplomatic immunity the proceedings could not proceed.
In his judgment, Mostyn J floated the idea of a possible application by the local authority for a declaration that inasmuch as articles 31 and 37 of the Vienna Convention prevented protective measures being taken in respect of the children of diplomats who are at risk they were irreconcilable, and therefore incompatible, with the duties imposed on the state under articles 1 and 3 (and possibly articles 6 and 8 also)of the European Convention on Human Rights.
At a hearing on 18th May 2020 in A Local Authority v AG (No 2)  EWHC 1346 (Fam), Mostyn J granted the local authority permission to pursue an application for a declaration that the Diplomatic Privileges Act 1964 is incompatible with (at least) article 3 of the ECHR 1950.
It would not be appropriate to comment in this article on the arguments for and against the local authority’s application for a declaration of incompatibility pending the outcome of the hearing of the application but it is worth stating the obvious that a conclusion that the provisions of the Vienna Convention are incompatible with the ECHR will have far reaching implications in the context of the UK’s diplomatic relations and will, as was observed by Mostyn J at paragraph 15 of A Local Authority v AG (No 2), “leave the Government and Parliament in a dilemma, the resolution of which might only be capable of being achieved by providing for an amendment to the Human Rights Act 1998 which excepts its reach to the children of serving diplomats.”