Basfar (Respondent) v Wong (Appellant)

1. Ms Josephine Wong (a national of the Philippines) is a migrant domestic worker who worked in the household of Mr Khalid Basfar, a member of the diplomatic staff of the mission of the Kingdom of Saudi Arabia in the United Kingdom. Ms Wong claims that she is a victim of human trafficking who was exploited by Mr Basfar and his family by being forced to work in circumstances of modern slavery. She has brought a claim against Mr Basfar in an employment tribunal for wages and breaches of employment rights. Mr Basfar has applied to have Ms Wong’s claim against him struck out on the ground that he is immune from suit because of his diplomatic status.

1. Under the Vienna Convention on Diplomatic Relations 1961, diplomatic agents enjoy complete immunity from the criminal jurisdiction of the receiving state and are also generally immune from its civil jurisdiction. There is, however, an exception for civil claims relating to “any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions”. The question raised on this appeal is whether exploiting a domestic worker in the manner alleged constitutes “exercising” a “commercial activity” within this exception.

1. The Supreme Court has considered this question before in Al-Malki v Reyes [2017] UKSC 61; [2019] AC 735. The facts alleged in Reyes were similar to the facts alleged here, but with one important difference: in Reyes the diplomat’s posting ended during the litigation. The Court of Appeal held that the diplomat had immunity: [2015] EWCA Civ 32; [2016] 1 WLR 1785. This Court allowed an appeal on the ground that, after a diplomat’s functions as a member of the mission have come to an end, immunity for past acts continues to subsist only for acts which were performed in the exercise of those functions - which the alleged acts were not. Having reached that conclusion, there was no need to decide whether, if he had still been in post, the diplomat would have had immunity. A minority of the Supreme Court expressed a clear view that he would. But a majority of the Court considered this to be very much in doubt.

1. In this case the question necessarily arises for decision, as Mr Basfar is still in post. The employment tribunal held that, on the facts alleged, Ms Wong’s claim comes within the commercial activity exception to diplomatic immunity. The tribunal therefore refused to strike out the claim. The Employment Appeal Tribunal [2020] ICR 1185 (Soole J sitting alone) allowed Mr Basfar’s appeal against this decision but issued a certificate that the case was suitable for an appeal by Ms Wong directly to the Supreme Court “leapfrogging” the Court of Appeal. This Court subsequently granted permission for such a leapfrog appeal.

1. There is evidence that exploitation of migrant domestic workers by foreign diplomats is a significant problem, so that the question raised on this appeal is one of general importance: see eg Reyes [2019] AC 735, para 59. To obtain a wider perspective, the Court has permitted two non-parties to intervene in the appeal by making written submissions. They are: Kalayaan, a charity that supports migrant domestic workers, some of whom have been trafficked; and the United Nations Special Rapporteur on Trafficking in Persons especially Women and Children (the “Special Rapporteur”).

1. The following facts are alleged by Ms Wong in her claim form. None of them has been admitted by Mr Basfar; but for present purposes we must assume them to be true so as to test Mr Basfar’s argument that, even if the facts alleged are proved, the claim against him cannot succeed because he has diplomatic immunity.

1. Ms Wong alleges that she was first employed by the diplomatic household of Mr Basfar in November 2015 in Saudi Arabia. On 1 August 2016 she was brought to the United Kingdom to continue working for him here. To obtain a visa to enter the country, Ms Wong was provided with an employment contract stating that she was employed by Mr Basfar to work a maximum of eight hours a day, with one day off each week and one month off each year; she was to be provided with sleeping accommodation and paid the national minimum wage.

1. Ms Wong alleges that, after arriving in the UK, she was confined at all times to Mr Basfar’s house except to take out the rubbish. She was held virtually incommunicado, being allowed to speak to her family only twice a year using Mr Basfar’s mobile telephone. She was made to work from 7am to around 11.30pm each day, with no days off or rest breaks, and was required to wear a door-bell at all times so that she was at the family’s beck and call 24 hours a day. She was shouted at incessantly and regularly called offensive names. When the family was at home, Ms Wong was only allowed to eat their left-over food; if they were out, she could cook something for herself.

1. After arriving in the UK, Ms Wong was paid nothing for seven months until Mr Basfar and his wife took her with them to Jeddah on their holiday in July 2017: during this trip she was paid 9,000 Saudi Riyals (approximately £1,800) for six months in one lump sum. This was a fraction of her contractual entitlement. After that, she was not paid again.

1. Ms Wong endured these abusive conditions until 24 May 2018, when she managed to escape.

1. Diplomatic Immunity

1. The principle of legal immunity for diplomatic agents is a fundamental principle of national and international law, rightly described in a recent case as “one of the most important tenets of civilised and peaceable relations between nation states”: A Local Authority v AG [2020] EWFC 18; [2020] Fam 311, para 38 (Mostyn J). At the international level the relevant law is contained in articles 1, 22-24, 27-40 and 45 of the Vienna Convention on Diplomatic Relations 1961 (the “Diplomatic Convention”), to which 193 states are parties. Section 2(1) of the Diplomatic Privileges Act 1964 (the “1964 Act”) incorporates these provisions into UK domestic law.

1. As recorded in the fourth recital to the Diplomatic Convention, the purpose of diplomatic privileges and immunities “is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States”. To this end:

1. the premises of the mission are inviolable (article 22);

1. all correspondence relating to the mission and its functions is inviolable and the diplomatic bag must not be opened or detained (article 27);

1. the person of a diplomatic agent is inviolable and he shall not be liable to any form of arrest or detention (article 29);

1. the premises of a diplomatic agent are inviolable, as are his papers, correspondence and (save in cases where he is not immune from civil jurisdiction) his property (article 30);

1. a diplomatic agent enjoys immunity from the criminal jurisdiction and (with limited exceptions) the civil and administrative jurisdiction of the receiving state (article 31(1));

1. a diplomatic agent is not obliged to give evidence as a witness (article 31(2));

1. diplomatic immunity may be waived only by the sending state and not by the individual (article 32);

1. with limited exceptions, diplomatic agents are exempt from all dues and taxes in the receiving state (article 34);

1. the privileges and immunities enjoyed by a diplomatic agent extend to family members who form part of his household (article 37); and

1. although such privileges and immunities normally cease when the functions of a diplomatic agent have come to an end, immunity continues to subsist with respect to acts performed in the exercise of his functions as a member of the mission (article 39(2)).

(2)Article 31(1)(c)

1. The key provision for present purposes is the exception to immunity from the civil jurisdiction of the receiving state provided for in article 31(1)(c) of the Diplomatic Convention. This exception applies in the case of:

(3)The scope of official functions

1. In Reyes this Court unanimously held that the employment and alleged acts of maltreatment of the claimant by the respondent diplomat were not performed “in the exercise of his functions as a member of the mission” within the meaning of article 39(2). As discussed by Lord Sumption (with whom the rest of the Court agreed on this point), a diplomatic agent’s “functions as a member of the mission” in article 39(2) are the same as “his official functions” in article 31(1)(c) and are, in each case, those functions which the diplomatic agent performs for or on behalf of the sending state: see [2019] AC 735, para 20. The acts alleged in Reyes were plainly not done for or on behalf of Saudi Arabia (see para 48); and the same is equally true here.

1. It is not suggested that the alleged acts of Mr Basfar were a “professional” activity. The question is whether they were a “commercial activity exercised” by him within the meaning of article 31(1)(c) of the Diplomatic Convention.

(4)Principles of interpretation

1. The text of an international convention is intended to be given the same meaning by all the states which become parties to it. The provisions of the Diplomatic Convention enacted into UK law by the 1964 Act must therefore be interpreted, not by applying domestic principles of statutory interpretation, but according to the generally accepted principles by which international conventions are to be interpreted as a matter of international law: see Fothergill v Monarch Airlines Ltd [1981] AC 251; Reyes [2019] AC 735, para 10. Those principles are set out in the Vienna Convention on the Law of Treaties 1969 (the “Treaties Convention”).

1. The general rule of interpretation is stated in article 31(1) of the Treaties Convention as follows:

Article 31(3) provides that “[t]here shall be taken into account, together with the context:

1. Article 32 of the Treaties Convention permits recourse to be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31 or if applying article 31 leaves the meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable.

(1)Ms Wong’s case

(2)Mr Basfar’s case

(3)Human rights arguments

(1)Employment of a domestic worker

(2)The profit element

(3)Exploitation of a domestic worker

(4)Making a personal profit

(5)The travaux préparatoires

(6)The rate of remuneration argument

(7)“Evolutionary” interpretation

(8)Developments of international law

(9)The relevance of developments in international law about modern slavery

1. The concepts of slavery, servitude and forced labour, together with human trafficking, are now often grouped together under the description of “modern slavery”. The Explanatory Notes to the UK Modern Slavery Act 2015, at para 4, describe modern slavery as “a brutal form of organised crime in which people are treated as commodities and exploited for criminal gain”. The United Nations also uses this concept, as exemplified by the existence since 2007 of a UN Special Rapporteur on “contemporary forms of slavery”. So does the ILO, which has described modern slavery as an “umbrella term” that refers, essentially, to “situations of exploitation that a person cannot refuse or leave because of threats, violence, coercion, deception, and/or abuse of power”: ILO, “Global estimates of modern slavery: Forced labour and forced marriage” (2017), p 9. Underlying the use of the term “modern slavery” is the point that, in the words of Anti-Slavery International (the world’s oldest international human rights organisation):

See Anti-Slavery International, “What Is Modern Slavery?”, quoted in G Gyulai, “Slavery, Servitude and Forced Labour in International Law: Should the Difference Still Matter?” (2021) 32 King’s LJ 228, 253.

1. The practices subsumed within the description “modern slavery” are, however, the subject of separate legal definitions.

(1)Slavery

1. The Convention to Suppress the Slave Trade and Slavery 1926 (the “1926 Slavery Convention”) defines slavery, in article 1(1), as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”. This represents the classic definition of slavery in international law and is reproduced, in substance, in both the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 1956 (article 7), and the definition of “enslavement” in article 7.2(c) of the Statute of the International Criminal Court 1998.

1. The powers attaching to a right of ownership include the power to sell or otherwise transfer ownership and to use what is owned as a possession, like livestock or furniture. Such “chattel slavery” of human beings is nowadays rare, but the language of the definition, with its reference to “any” of the powers attaching to the right of ownership, permits a more expansive interpretation. Thus, according to a report commissioned by the United Nations:

See Abolishing Slavery and its Contemporary Forms, Office of the United Nations High Commissioner for Human Rights (2002), para 21.

(2)Forced Labour

1. In the process of adopting the 1926 Slavery Convention, the Assembly of the League of Nations passed a number of resolutions, including one which effectively requested the ILO to take over responsibility for addressing forced labour, including “the best means of preventing forced or compulsory labour from developing into conditions analogous to slavery”: League of Nations, Doc A.104.1926.VI, p 3. In 1930 the ILO adopted the Convention Concerning Forced or Compulsory Labour (No 29), which has been ratified by 179 states. Article 2(1) of this convention defines “forced or compulsory labour” as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.

1. Guidance given by the ILO supervisory bodies has helped to clarify each of the two elements of this definition: see eg ILO, “A Global Alliance against Forced Labour” (2005), paras 14-15 and Box 1.1. This guidance explains that the “menace of any penalty” can take many different forms. Arguably, its most extreme form involves physical violence or restraint. There can also be subtler forms of menace, sometimes of a psychological nature. Situations examined by the ILO have included threats to denounce victims to the police or immigration authorities when their employment status is illegal. Other penalties can be of a financial nature, including the non-payment of wages. Indicators that the work is not being performed voluntarily include physical confinement in the work location, deception or false promises about types and terms of work, retention of identity documents and withholding and non-payment of wages.

(3)Servitude

1. Unlike slavery and forced labour, the concept of servitude is not defined in an international convention, though it is used in a number of international instruments including the Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948, which states in article 4 that “no one shall be held in slavery or servitude”. The term “servitude” is generally understood to refer to a form of exploitation which lies on a scale of gravity or severity between slavery and forced labour and involves coercion. Thus, the US Supreme Court has interpreted the phrase “involuntary servitude”, prohibited by the Thirteenth Amendment to the Constitution, to mean “compulsion of services through the use or threatened use of physical or legal coercion”: see United States v Kozminski, 487 US 931 (1988), p 945. The European Court of Human Rights has held that, in article 4 of the ECHR, “servitude” means an obligation to provide one's services that is imposed by the use of coercion: Siliadin v France (2006) 43 EHRR 16, para 124. The Court has further described servitude as “aggravated” forced or compulsory labour, distinguished by the fact or perception that it is impossible for the individual concerned to change her situation: CN and V v France (Application No 67724/09), 11 October 2012, paras 90-91; Chowdury v Greece (Application No 21884/15), 30 March 2017, para 99.

1. To similar effect, a definition of “servitude” included in the seventh revised draft of the Palermo Protocol, though not in the final text, defined it as:

(4)Human trafficking

1. In contrast to slavery and forced labour, international consensus on a definition of human trafficking is much more recent and was only arrived at in 2000 with the adoption of the Palermo Protocol, to which there are now 178 state parties. Article 3 of the Palermo Protocol defines “trafficking in persons” as meaning:

“Exploitation” is stated to include:

Article 4(a) of the Council of Europe Anti-Trafficking Convention on Action against Trafficking in Human Beings (2005) defines “trafficking in human beings” in similar terms.

1. The definition of human trafficking has three elements:

1. the act: recruitment, transportation, transfer, harbouring or receipt of persons;

1. the means (by which the act is done): threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving or receiving payments or benefits to a person to achieve the consent of a person who has control of the victim; and

1. the purpose: exploitation, which includes the purpose of forced labour or slavery or servitude.

(5)Is this a case of modern slavery?

1. The application of these concepts to the facts of this case was not the subject of analysis in the proceedings below. Ms Wong’s ET1 claim form in the employment tribunal complied with the time-honoured rule that a party must plead the material facts alleged and not their legal consequences. Apart from asserting that Ms Wong “is a victim of trafficking, who was exploited by [Mr Basfar] and his family”, no reference was made to the legal characterisation of her alleged treatment.

1. For the purpose of Mr Basfar’s application to strike out the claim on the grounds of diplomatic immunity, the parties agreed that the question for the tribunal was “whether the respondent’s employment of the claimant as a domestic servant (in assumed circumstances of modern slavery) was a commercial activity exercised by the respondent outside his official functions”: see para 15 of the tribunal’s judgment. The employment judge answered this question in the affirmative, on the ground that this is what the majority of the Supreme Court would have decided in Reyes if they had been required to determine this question. In the Employment Appeal Tribunal, Soole J reached a contrary conclusion essentially on the basis that he should follow the clear view expressed by the Court of Appeal and the minority of the Supreme Court in Reyes (on this point) in preference to the more tentative view expressed by the majority of the Supreme Court. In neither judgment was there any substantive consideration of whether the facts alleged amount to any of the various forms of modern slavery.

1. On the appeal to this court counsel for Ms Wong maintained that she is a victim of human trafficking and that she was exploited in the UK by being held by Mr Basfar in domestic servitude. Mr Otty QC focused on the allegation of trafficking and took the position that he did not need to rely on the concept of forced labour. He submitted that keeping Ms Wong in domestic servitude amounted to “harbouring” her within the meaning of the Palermo Protocol definition of trafficking.

1. For Mr Basfar, Mr Sethi QC submitted that Ms Wong should not be allowed on this appeal to rely on factual allegations not pleaded in her claim form. For example, Ms Wong’s written case mentions allegations that her passport was held by Mr Basfar and that she was threatened with arrest if she ran away. Those allegations are not pleaded. Nor is the fact that, since the Court heard oral argument, the Home Office has issued a “conclusive grounds” decision finding that Ms Wong was a victim of modern slavery - a matter on which counsel for Ms Wong have also sought to rely in their written submissions filed after the hearing. We agree with the submission that this Court should determine the appeal on the same agreed factual basis as the tribunals below. We have therefore not included in our summary of the facts or taken into account in our assessment any factual allegations other than those pleaded.

1. Mr Sethi QC also submitted that the facts pleaded by Ms Wong do not amount to trafficking within the international definition. The high point of this argument is that, although Ms Wong asserts in her claim form that she is a “victim of trafficking” and alleges that she was brought from Saudi Arabia to continue working for Mr Basfar here and was subjected to exploitation by Mr Basfar and his family in the UK, she does not expressly allege that she was trafficked to the UK for the purpose of exploitation. Although not expressly stated, this is, however, clearly implicit in the allegations made and is certainly an inference capable of being drawn from those allegations. We see no merit in the suggestion that the claim form is defective for this reason.

The scope of “harbouring”

1. The more substantial question raised on behalf of Mr Basfar is whether the acts capable of amounting to human trafficking within the international definition ended when Ms Wong was received at Mr Basfar’s residence in this country or whether they continued while she worked there. Arguably, the former view is supported by the order in which the acts that may constitute trafficking are listed in the definition. The list starts by referring to “recruitment”, continues with “transportation”, “transfer” and “harbouring”, and ends with “receipt”. This can be read as intended to capture what Lord Stephens described in oral argument as “a consecutive series of activities” which ends with arrival at a place or situation of exploitation.

1. In response, Mr Otty QC submitted that, on the assumed facts, the trafficking continued up until the moment of Ms Wong’s escape. He put this on the basis that, until that moment, Mr Basfar was “harbouring” Ms Wong in his home, by means of coercion and abuse of power or of a position of vulnerability, for the purpose of exploitation. All three elements of the definition of human trafficking were therefore present. In support of this contention, Mr Otty QC relied on a dictum in R (BG) v Secretary of State for the Home Department [2016] EWHC 786 (Admin), para 49, where Cranston J said:

Mr Otty QC also cited a statement in the judgment of the European Court of Human Rights in Rantsev v Cyprus and Russia, at para 281, that trafficking:

It is implicit in this description that trafficking does not end on arrival at the place of exploitation but continues while the victim is in a situation of exploitation.

1. A third source to which Mr Otty QC referred is the Explanatory Report to the Council of Europe Anti-Trafficking Convention. However, this report explains that the list of actions contained in the definition of trafficking “endeavours to encompass the whole sequence of actions that leads to exploitation of the victim” (para 78). This tends to support the view that trafficking, as defined, is concerned with the process by which a person is conveyed to a place where exploitation will potentially take place rather than with what occurs at that place.

1. Because it seemed to us that arguments raised for the first time on this appeal cast doubt on whether the exploitation of Ms Wong at Mr Basfar’s residence in the UK comes within the internationally accepted definition of “trafficking”, the Court thought it right to seek further assistance from the parties on the form of modern slavery disclosed by the assumed facts. To that end, the Court invited written submissions on whether, on the facts alleged, the claim can properly be characterised as relating to forced labour and/or domestic servitude.

1. In their further written submissions counsel for Ms Wong argued that the alleged exploitation of Ms Wong in the UK constituted domestic servitude (and a fortiori forced labour) and that those concepts are therefore applicable as well as the concept of trafficking. Counsel for Mr Basfar argued the opposite and also submitted that Ms Wong “should not be permitted to run an entirely new and unpleaded case based on forced labour and/or domestic servitude before the Supreme Court”.

1. We are unimpressed by the latter submission. Both parties were content to proceed below on the agreed basis that Ms Wong was employed by Mr Basfar “in circumstances of modern slavery” without further analysing the form of modern slavery involved. It is Mr Basfar who introduced for the first time on this appeal an argument that the facts alleged do not amount to “trafficking”. If the proper legal characterisation of the facts alleged is to be considered, as it should be, it is necessary to consider not only what is meant by “trafficking” but also the concepts of “forced labour” and “servitude”, which are both forms of “exploitation” within the Palermo Protocol definition. The fact that we do not have the benefit of consideration of this subject by the tribunals below is not a reason to ignore it. The same can be said about every point argued on this appeal (see para 84 above).

Academic commentary

1. There is a substantial body of academic learning on the concept of human trafficking in international law. Ms Wong’s case that the alleged facts fall within the scope of trafficking finds support in the work of Anne Gallagher, The International Law of Human Trafficking (2010), p 30. Dr Gallagher argues that the references to “harbouring” and “receipt” operate to bring not just the process but also the end situation of trafficking within the Palermo Protocol definition. She bases this view on “the plain meaning of the text” and says:

Dr Gallagher considers that this could potentially result in the concept of trafficking being extended to situations of exploitation in which there was no preceding process. She gives as an example “[a] working environment that changes from acceptable to coercively exploitative” (p 31).

1. Dr Gallagher’s view is criticised by Vladislava Stoyanova in Human Trafficking and Slavery Reconsidered: Conceptual Limits and States’ Positive Obligations in European Law (2017) at pp 33-42. Dr Stoyanova argues that the five actions enumerated in the definition of trafficking “refer to a deceptive or coercive process that could potentially lead to exploitation”. They are “links in the chain of supply” and “refer to the removal of affected persons from their home environment in order to be exploited for the gain of others in another location”. Among other arguments, Dr Stoyanova makes the point (at p 38) that:

The interpretation contended for by Dr Stoyanova is shared by some other prominent legal scholars. For example, Professor Jean Allain in Slavery in International Law: Of Human Exploitation and Trafficking (2013), p 355, characterises human trafficking as “the international supply chain into exploitation”.

(6)The question of taxonomy

1. It is not, however, in our view necessary to resolve this difficult issue, for two reasons. The first is that, on the assumed facts, Mr Basfar was plainly involved in trafficking Ms Wong, regardless of whether, strictly construed, trafficking ceases (as is sometimes said) at the door of the workhouse. He clearly played a principal part in her recruitment, transport and receipt, using the prohibited means and for the purpose of her exploitation. Secondly and more importantly, our conclusion that his exploitation of her was a commercial activity does not depend upon which particular manifestation of modern slavery may best describe his conduct, using the classification to be derived from international Conventions. It is apt to bear in mind this observation of Gleeson CJ in the High Court of Australia in Queen v Tang [2008] HCA 39, para 29:

1. it is sufficient that Mr Basfar’s treatment of Ms Wong, on the assumed facts, amounted to a form of modern slavery, whether it was forced labour, servitude or trafficking. This shows that the relationship between them was not that of employment freely entered into, so as to be an ordinary part of Mr Basfar’s daily life in the UK as a resident diplomat. And it shows that his conduct amounted to a commercial activity practised (in so far as it matters) for personal profit.

(7)Does the claim “relate to” the alleged commercial activity?

1. It seems to us that the somewhat single-minded focus by the claimants in this case and in Reyes on the term “human trafficking” to describe the matters complained of has had the effect of diverting attention from the substance of the claims. Focusing on trafficking is open to the objection that the alleged trafficking of the claimant was not itself a cause of loss to her or profit to the respondent, as any such loss and corresponding profit were the result of exploitation at the claimant’s place of work and not of the process by which she came to be there. On that basis it might be said that, on the facts alleged, any acts of trafficking were not themselves a commercial activity exercised by the respondent; nor do the claims “relate to” trafficking, as they are founded on the alleged exploitation of the claimants while they were working in the UK and not on the process by which they travelled to their place of work.

1. There is some force in those objections when the emphasis is placed on the concept of human trafficking, particularly if, as on one interpretation of the Palermo Protocol, trafficking ends where the exploitation which is its purpose begins. But, on a proper analysis, the allegation of human trafficking is not essential to the claims made. The gravamen of Ms Wong’s claim is that she was exploited by being forced to work for Mr Basfar in the UK in circumstances of modern slavery. The case that the exploitation of her labour amounted to a commercial activity would be just as cogent if Ms Wong had already been resident in the UK before working for Mr Basfar and had become an employee of Mr Basfar in the UK freely but he had then treated her in the manner alleged after she entered his service. Conversely, if Mr Basfar had engaged in trafficking by transporting Ms Wong to the UK using deception or coercion for the purpose of exploitation but had then changed his mind and employed her on a regular and voluntary basis, a claim for breach of her contract of employment would not, as it seems to us, fall within the article 31(1)(c) exception. On the facts alleged, the main relevance of the process by which Mr Basfar arranged for Ms Wong’s transfer to the UK to work for him (which amounted to trafficking under any interpretation of the Palermo Protocol) is that it is an important part of the background which serves to explain how Ms Wong came to be in a position of special vulnerability to his exploitation of her while in his domestic service.

1. Lord Bingham rejected that submission. He held that neither the prohibition on torture nor that on crimes against humanity automatically overrode all other rules of international law. He said that it may very well be that the claimants’ contention would come to represent the law of nations but it could not be said to do so now. Lord Hoffmann also rejected the submission that the fact that the prohibition on torture was ius cogens meant that it overrode immunity:

He went on: (para 46)

1. Lord Hoffmann said further, at para 63, that international law is based on the consent of nations so that it is not for a national court to “develop” international law “by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states”. He concluded that there was nothing in either the Torture Convention or the United Nations Convention on Jurisdictional Immunities of States and Their Property (2004) to indicate that a new exception was so recognised. He considered judicial decisions of the International Criminal Court and the ECtHR and then national courts. Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe and Lord Carswell agreed with both Lord Bingham and Lord Hoffmann.

1. The majority’s judgment in the present appeal does not state that it is overruling the decision of the Divisional Court in Barnet but it is difficult to see how that decision can stand, assuming one regards child abuse falling within article 3 ECHR as being serious misconduct which is widely condemned by the international community. It is true that the present appeal is different from Barnet and Jones in that those cases were considering the insertion of a wholly new exception rather than a new and wider interpretation of an existing exception. But the same principles must apply since the principle that the words must mean the same for all signatories applies just as much to the proposed extension of meaning of an existing exception as it does to the creation of a new exception. Further, the potential effect on diplomatic relations - the risks of real harm to our diplomats abroad arising from disturbing the Diplomatic Convention to which the Divisional Court referred in Barnet - is the same in both situations.

1. To adapt what Lord Hoffmann observed in para 46 of Jones set out above to the facts of the present case, whether an exception to diplomatic immunity has come to be recognised by international law in the extension of the phrase “commercial activity” to the employment of a trafficked domestic worker must be ascertained from treaties, judicial decisions and writings of reputed publicists.

1. So far as treaties are concerned, we consider that the same answer must be given as regards the effect of the Palermo Protocol on the Diplomatic Convention as was given by the House of Lords in Jones as regards the effect of the Torture Convention on the scope of state immunity. Mr Otty QC is not able to point to anything in the Palermo Protocol that deals with the scope of diplomatic immunity. It cannot be the case that a treaty obligation to make certain conduct a serious criminal offence is itself enough to require contracting states to lift immunity for that conduct: the immunity of diplomats from criminal prosecution is complete and is not challenged in these proceedings.

1. As to state practice, the jurisprudence from the courts of other parties to the Diplomatic Convention point very firmly towards the continuing state practice being that the employment of trafficked domestic workers does not amount to commercial activity for the purposes of article 31(1)(c).

1. We were taken to a series of cases in which the courts in the US have firmly rejected cases on similar facts to those of Ms Wong. The primary authority to which these cases refer is an authority from the United States Tabion v Mufti (1996) 73 F 3d 535 (“Tabion”). We agree with Lord Sumption’s comment in Reyes at para 22 that decisions of the federal courts of the United States are a valuable source of law in this area, “because of the long-standing engagement of the US courts with international law and the existence of a highly developed body of domestic foreign relations law belonging to the same tradition as our own”. In Tabion the claimant worked as a domestic servant in the home of a Jordanian diplomat stationed in Washington. She brought an action alleging breach of United States labour laws. The US Court of Appeals Fourth Circuit (on appeal from the District Court) held that the term “commercial activity” did not extend to include occasional service contracts but related only to trade or business activities engaged in for personal profit. The Court concluded:

1. Although Ms Tabion’s claims included claims for low pay, long hours and false imprisonment, the case did not raise squarely the question whether the conditions under which she worked affected whether her employment amounted to “commercial activity”. This was dealt with more directly in later cases. In Sabbithi v Al Saleh (2009) 605 F Supp 2d 122, the plaintiffs were domestic workers from India bringing an action against their former employers who were Kuwaiti diplomats. They brought proceedings under the Trafficking Victims Protection Act of 2000 (“TVPA”) and the Fair Labor Standards Act. The plaintiffs had been employed by the defendants in their home in Kuwait prior to moving to the US. It was alleged that in Kuwait they had worked long hours, seven days a week for small payment. On coming to the US, they signed employment contracts promising to pay them considerably more and to comply with US labour laws. These contracts were presented to the US Embassy in Kuwait for the purpose of obtaining visas to authorise the plaintiffs to work in the defendants’ home in the US. The plaintiffs claimed that once in the US, the defendants did not comply with the terms of the contracts but maintained their exploitative treatment depriving them of their passports, threatening them with physical harm and physically abusing one of them. When they escaped and filed suit, Kuwait declined to waive immunity.

1. The arguments put forward by the plaintiffs in Sabbithi relevant to the present appeal were (1) the defendants’ alleged trafficking of the plaintiffs fell within the “commercial activities” exception to immunity under the Diplomatic Convention; (2) diplomatic immunity could not bar the plaintiffs’ claims because the defendants’ actions were so egregious they violated ius cogens norms prohibiting slavery and slavery-like practices; and (3) the plaintiffs’ claims under the TVPA prevailed over the defendants’ conflicting claims of diplomatic immunity according to the “subsequent-in-time” rule. The District Court rejected those arguments. The court was not persuaded that the defendants’ alleged conduct constituted human trafficking and held that no ius cogens norm was at issue. But it went on to say that, in any event, there was no evidence that the international community has come to recognise a ius cogens exception to diplomatic immunity. The Court then went on to come to a different conclusion from the Supreme Court in Reyes, holding that the immunity extended after the defendants returned to Kuwait because it was part of the exercise of their diplomatic functions.

1. This has been the interpretation of article 31(1)(c) approved by the US courts in more recent cases. In 2011, the claimant in Montuya v Chedid (2011) 779 F Supp 2d 60 alleged that she was brought to the US in August 2007 to work in the home of the Lebanese ambassador as their domestic servant. She was forced to work long hours for little pay and was verbally abused and insulted. She claimed she was not allowed to leave the defendants’ home and was illegally confined there. The court referred to the Sabbithi case and found the reasoning persuasive. The court said in closing:

1. Finally as regards the US jurisprudence, the question of trafficking was raised squarely in Fun v Pulgar (2014) 993 F Supp 2d 470 (decision of the US District Court). There the plaintiff was offered work as a live-in domestic worker for the family of a Peruvian diplomat working at the Permanent Mission of Peru to the United Nations. She was supplied with an employment contract setting out favourable terms but once she arrived in the United States, the defendants confiscated her passport and put her immediately to work. She alleged that the defendants’ actions created a human trafficking and alien harbouring enterprise in order to take advantage of her service as an underpaid domestic servant. The plaintiff claimed damages and injunctive relief for being trafficked into the United States by the defendants and forced to work against her will as their domestic servant for over six months. The District Court still held that the claim did not relate to commercial activity within article 31(1)(c), applying Tabion. The court did not regard the conditions under which she worked as capable of converting her employment into a commercial activity.

1. The only case on which Mr Otty QC could rely is the Portuguese case of Fonseca v Larren 30 January 1991 reported in “State Practice regarding State Immunities” edited by the Council of Europe. This was an appeal before the Supremo Tribunal de Justiça. The report provided to us can be set out in its totality:

1. We have no reason to disagree with Lord Sumption’s analysis of this case at para 33 of Reyes where, apparently having access to a fuller report of the decision, he explained the result as arising from a principle of statutory construction sanctioned by the Portuguese Civil Code which would not apply to a treaty in England. Curiously, the page containing this report in the Court’s appeal bundle contains a report of a later decision on 4 May 1994 in the District Court of Lisbon in Ramos v US Government. In that case it appears that the Lisbon Court held that “Portuguese courts are internationally incompetent to judge labour contracts entered into with the US Diplomatic Mission in Portugal, since this State has not waived its immunity from jurisdiction.”

1. We accept that the Supreme Court in Reyes has already created a difference of interpretation by holding that the employment of domestic workers is not part of the diplomat’s official functions so that immunity for employment related claims does not continue once the diplomat leaves office. The contrary conclusion has been reached by the US Courts. Whether or not the majority judgment means that the US cases were wrongly decided is not the main point here. The relevance of the US cases for present purposes is that they are very far from showing that there is state practice to support a contention that the parties to the Diplomatic Convention have recognised that the development of international law about trafficking and slavery has affected the meaning of the term “commercial activity” in the treaty to which they are all party.

1. As to writings of reputed international lawyers, we were shown nothing to suggest that legal writings recognise the extension of the term “commercial activity”. On the contrary, Professor Denza refers without criticism to the decision of the US court in Tabion and to the application of that principle by the Court of Appeal in Reyes: see pp 251-252 of her Commentary. She refers also in her Introduction to the resilience of diplomatic immunity in the face of evolving human rights norms:

1. We therefore agree with Lord Sumption’s conclusion in Reyes that there is nothing either in the Palermo Protocol or in the other international treaties, or in state practice or in academic writings to support the proposition that the meaning of “commercial activity” has changed since 1961 so that it now encompasses trafficked employment of the kind Ms Wong alleges.

1. For completeness, we add that even if Ms Wong’s claim can be characterised and advanced as relating to forced labour and/or domestic servitude (contrary to our conclusions at paras 125-129), our view is that this makes no difference to the question of whether Mr Basfar was engaged in “commercial activity”. We consider that Ms Wong is wrong to suggest that forced labour and domestic servitude amounts to a “commercial activity” for the purposes of article 31(1)(c) because a perpetrator makes financial savings by not paying the required rate for that labour. For the reasons we have given above, in our view the correct approach is to consider whether the activity in which the forced labour or domestic servitude is used can be considered a “commercial activity”. The forced labour or domestic servitude is not itself a “commercial activity”. In the present case, Ms Wong’s labour was clearly carried out in a domestic setting rather than being put towards any kind of profit-making activity by Mr Basfar. The fact that, on the assumed facts, Mr Basfar’s treatment of Ms Wong was of an appalling nature does not mean that he was engaged in a “commercial activity”.

1. As Lord Sumption recognised in the context of human trafficking in Reyes at para 45, there is nothing inherent in forced labour or domestic servitude that they be carried out in the exercise of a commercial activity. The characterisation of working conditions as forced labour or domestic servitude does not depend on whether a “commercial activity” is carried on by the perpetrator, nor on whether the perpetrator intends to make savings or a profit, but rather on the perpetrator’s treatment of the victim and whether it involves the denial of the personal autonomy and dignity of the victim.

1. Ms Wong’s appeal before the Court has been conducted on the basis that the facts she asserts in her pleaded case before the Employment Tribunal are true. The majority judgment has set out those facts and, if true, they disclose shocking and shameful mistreatment. The same was true of the facts assumed in Barnet that the diplomatic agent’s mistreatment of his children had been so severe as to amount to a breach of their article 3 Convention rights and in Jones where the claimants pleaded particulars of severe, systematic and injurious torture. Although this Court does not have to examine whether Ms Wong’s allegations are true, that does not absolve us from the need to consider the worrying difficulties that one can foresee arising from a decision that trafficked or other exploitative employment is a “commercial activity” for the purposes of the exception. We see these difficulties as arising on a number of fronts:

1. The difficulty in defining what amounts to trafficking and the breadth of that definition;

1. The intrusive nature of the enquiry that the tribunal would need to carry out to determine whether immunity applied or not;

1. The scope of the exception if it is extended beyond trafficking to cover other forms of slavery or exploitative employment;

1. The risks to the UK’s diplomats abroad from the expansion of the exception.

(a)The definition of trafficking

1. As we have already noted, Mr Otty QC’s submissions relied on the Palermo Protocol definition of human trafficking for two purposes. The first was as showing the development of international law since the Diplomatic Convention was adopted. We have dealt with that in the previous section of this judgment. The second was that the Palermo Protocol provides a reasonably bright line for the purpose of defining the scope of “commercial activity”. It is a definition that has already been reflected in statute in section 2 of the Modern Slavery Act 2015. This Court has already had occasion, nonetheless, to comment on how difficult it is to determine whether the treatment of a particular individual falls within the definition of trafficking or not. In Hounga v Allen [2014] 1 WLR 2889Ms Hounga’s claim for, amongst other things, unlawful race discrimination was met by a defence of illegality by her employer who asserted that Ms Hounga had knowingly participated in presenting false documents to the UK authorities in order to acquire a visa. The Supreme Court held that there was a public policy to which barring Ms Hounga’s claim would “run counter” namely the prevention of human trafficking. This raised the question whether the evidence established that Ms Hounga had been trafficked. Lord Wilson JSC (with whom Baroness Hale of Richmond DPSC and Lord Kerr of Tonaghmore JSC agreed) dealt with the question as follows:

1. Lord Wilson did not have to arrive at a definite conclusion as to whether Ms Hounga was trafficked since he concluded that to uphold her employer’s defence of illegality would run strikingly counter to the policy against trafficking and in favour of the protection of its victims.

1. A useful illustration of the task that awaits courts and tribunals if they are required to determine whether a claimant has been trafficked as a preliminary issue of jurisdiction in a claim against a diplomat can be seen in the case of Ajayi v Abu [2017] EWHC 3098 (QB). HHJ Alison Hampton was considering claims by Ms Ajayi for compensation for being the victim of human trafficking. The trial in the Queen’s Bench Division lasted five days and resulted in a judgment of 126 paragraphs. Her factual findings covered the period between when Ms Ajayi first started work for the Abu family in the summer of 2005 until she was expelled from the household in March 2015. The judge heard evidence from the defendants, from members of the family and their friends, from a director of Anti-Slavery International who provided his opinion to the court on whether Ms Ajayi could be said to be a victim of trafficking, and from a psychiatrist. The judge prefaced her analysis of the factual witnesses and her findings of fact by describing the difficulties facing her - difficulties which are likely to face any judge considering whether a claimant has been the victim of trafficking:

1. The judge found that Ms Ajayi had exaggerated her claim in some respects. She found that Ms Ajayi had never been physically abused or locked into the family home. She had received cash payments from time to time and had been free to go to college and to carry out voluntary work at church. But on the issue of whether her treatment amounted to trafficking, the judge concluded that it did, since the control on an individual does not require physical restraint, violence, or the threat of violence, to be effective and coercive. She found that the claimant was indeed the victim of trafficking and harassment within the meaning of the 1997 Act.

1. It appears therefore that if the test for “commercial activity” is indeed the test for human trafficking set out in the Palermo Protocol, the circumstances in which immunity may be lifted are not limited to extreme cases of zero payment, virtual imprisonment in the family home and physical abuse. It is no answer to this point to say that Ms Wong’s allegations as set out at paras 8 and 9 of the majority judgment are at the more extreme end of what amounts to human trafficking. If trafficking and exploitation amount to exercising “commercial activity” as the majority conclude, the immunity may be lifted whenever the test is satisfied, not simply when it is satisfied in a particularly egregious form. The Employment Tribunal may find, having investigated Ms Wong’s allegations that some of what she claims is exaggerated and that, for example, she was never made to wear a door-bell round her neck, that she was provided with meals every day and allowed to speak to her family using Mr Basfar’s phone once a month. Would Mr Basfar’s conduct still be such as to lift his immunity from suit? The majority judgment does not assist because there is no indication which of the vulnerable characteristics and identifying factors listed in paras 45 to 51, singly or in combination, need to be present before the employment relationship amounts to “commercial activity”. The majority judgment refers throughout to Ms Wong as a “migrant” domestic worker. It is not clear - but it needs to be clear if this test is to be applied by employment tribunals - whether the exception is limited to “migrants”. If so then the serious mistreatment of domestic workers engaged by the diplomat but who are resident in this country cannot amount to “commercial activity” even if they, like a typical migrant worker, have no network of supporters in this country to whom they can turn for help.

(b)The intrusive nature of the exercise in which employment tribunals will need to engage

1. The judgment in the Ajayi v Abu case illustrates the exercise on which tribunal judges will need to embark in deciding whether the “commercial activity” exception applies. The issues covered in the judgment include: the claimant’s conduct during periods of prayer within the family home; the claimant’s attendance at the family’s church; what percentage of the family’s ironing was carried out by the claimant; to what extent Ms Ajayi did the school run to collect the children. There was a dispute between the parties as to whether Ms Ajayi had ever been paid and, if so, how much. This required an analysis of Mr Abu’s bank statements. We cannot accept that the signatories of the Diplomatic Convention envisaged that such an exercise was an appropriate one for courts and tribunals to undertake in order to decide whether the exception in article 31(1)(c) applies.

1. It is no answer, in our judgment, to say that Mr and Mrs Basfar can rely on article 31(2) of the Diplomatic Convention which prevents them from being compelled to give evidence. It cannot be the case that the exception is recognised only because it is likely that future defendants will consider themselves unable to defend the proceedings because of the intrusive examination of their home life that would be required to refute the allegations.

(c)The wider definition of exploitation

1. The majority’s judgment extends the meaning of “commercial activity” to employment relationships other than those which fall within the definition of trafficking set out in the Palermo Protocol. The judgment refers to the international concepts of servitude and forced labour as marking the dividing line between on the one hand the consensual employment of a housekeeper or other domestic worker which is not to be treated as a commercial activity and “a form of modern slavery” which is. Underlying the majority’s judgment is the assumption that there is a boundary with servitude or forced labour on one side of it and voluntary employment on the other side. In our view there is, rather, a broad spectrum between those who are in the fortunate position of working in congenial conditions and being free to leave their jobs when they please on the one hand and victims of trafficking, servitude and forced labour on the other. Many people in the UK and elsewhere work long, anti-social hours in unpleasant conditions doing menial work for low pay and having to put up with rude, bullying employers. They cannot afford to leave their jobs; they have families to feed and bills to pay and the alternatives open to them are very limited and unlikely to be much better. But they are not generally regarded as “slaves” or as working in “forced servitude”.

1. We accept that the phrase “commercial activity” chosen by the drafters of the 1961 Convention is vague. The state parties must have expected there to be disputes about what was excepted and what was not. However, here the uncertainty arises because the factors considered relevant are not in any other context regarded as indicia of whether an activity is “commercial” or not, such as the degree of psychological abuse by one counterparty to the other or restrictions on a counterparty’s liberty.

1. The one aspect of the employment relationship which clearly is “commercial” is the pay. Ms Wong accepts that she was paid something although it was a small fraction of her contractual entitlement. But we accept that trafficking and exploitation are not limited to situations where there is no payment at all. The majority refer to the element of profit on the part of the employer that arises when he obtains the worker’s services for less than he should pay. This, the majority say, is an indicator of the commercial nature of the activity of employing an exploited domestic worker although it does not appear that they regard it as a necessary element. They do not identify what degree of disparity between the pay given to the claimant and an acceptable rate of pay is essential before the employer is regarded as profiting unfairly thereby turning the relationship into the exercise of “commercial activity” for the purposes of article 31(1)(c).

1. In so far as lower than normal pay is relevant to the issue, it raises another area of uncertainty as to the correct comparator for normal pay. The majority propose a comparison between the worker’s actual pay and the amount for which the worker would “willingly” have provided the services or for which equivalent services could have been purchased in the labour market. Such a test raises serious issues, for example whether the labour market under consideration is the labour market in central London or the labour market in the sending state where Ms Wong was initially employed and where the cost of living is substantially lower.

(d)Reciprocity and risks of retaliation

1. Professor Denza says in the Introduction to her Commentary:

1. The risks to which an expansive or unusual interpretation of the exception in article 31(1)(c) may expose the United Kingdom’s diplomats abroad has been commented on in various decisions. It was a point made in the evidence lodged by the Foreign, Commonwealth and Development Office in Barnet. The court in that case was provided with a witness statement of Ms MacMillan MVO, Deputy Director of the Protocol Directorate and Assistant Marshal of the Diplomatic Corps. She referred to article 47(2) of the Diplomatic Convention. Article 47 provides that in the application of its provisions, the receiving state shall not discriminate as between States. But there is an exception in article 47(2) that discrimination shall not be regarded as taking place where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its mission in the sending State. Ms McMillan’s evidence was that the failure of a state to respect the immunities of diplomatic staff in its own territories might expose its own diplomats to “harsher treatment abroad, by way of reprisal”(para 51).

1. A restrictive application of the immunity granted by article 31 by this court may well be met by a restriction on the immunity granted to UK diplomats in Saudi Arabia. No doubt, as Mr Otty QC submitted, it is most unlikely that UK diplomats are involved in human trafficking or in treating their domestic staff in the way that Ms Wong alleges that she has been treated. But the retaliation does not have to be limited to such a specific tit for tat. The court in Barnet quoted from Ms MacMillan’s evidence making this point:

1. We, like the majority in this appeal, have every sympathy with the plight of trafficked domestic workers. We share the dismay of Lord Wilson at the apparent proliferation of serious cases of domestic servitude here in the UK, particularly in the homes of diplomats: see paras 59 and 68 of Reyes. But there are larger issues of international comity at stake here. We were told during the hearing that Ms Reyes has been unable to enforce the judgment she obtained against Mr Al-Malki after her appeal was allowed by the Supreme Court. The majority in the present appeal accept, as they must, that even if Ms Wong succeeds in her tribunal claim, there will be nothing she can do to enforce the judgment against Mr Basfar. The outcome of Barnet shows that Ms Wong and those wishing to support her have alternative routes to achieve as much as they can hope to achieve from this litigation. The Divisional Court in Barnet records that after the Secretary of State had invited the sending state to waive the diplomatic immunity of the father and family, the sending state refused but recalled the father with immediate effect. Shortly after, the Secretary of State informed the sending state that the father and the rest of the family were personae non gratae and were required to leave the UK at the first opportunity.

1. All these steps can and should be taken within the parameters of the established international order and without taking the unprecedented step that the majority judgment takes in this appeal.

1. We would therefore dismiss the appeal.