A transformative Supreme Court judgment holding a diplomat accountable for modern slavery
On 6 July 2022, the United Kingdom Supreme Court issued its judgment in Basfar v Wong [2022] UKSC 20. It is the first case in the world in which a leading court has concluded that the alleged exploitation of a domestic worker in circumstances of modern slavery falls within the “commercial activity” exception to diplomatic immunity in Article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961.
Ishaani Shrivastava, led by Timothy Otty QC of Blackstone Chambers and alongside Paul Luckhurst (also of Blackstone) and Professor Philippa Webb of Twenty Essex Chambers represented the claimant.
The claimant was a domestic worker from the Philippines, who alleged that she worked in the London residence of a current Saudi diplomat in conditions of modern slavery. The case came to the Supreme Court via a leapfrog appeal from the Employment Appeal Tribunal, being the first EAT case to be granted a leapfrog certificate.
Lord Briggs and Lord Leggatt (with whom Lord Stephens agreed) rejected the diplomat’s argument that that if the ordinary employment of a domestic worker does not constitute a “commercial activity” then the same must be true when the worker is trafficked and exploited. They stated that:
“Employment is a voluntary relationship, freely entered into and governed by the terms of a contract. … By contrast, the essence of modern slavery is that it is not freely undertaken. Rather, the work is extracted by coercion and the exercise of control over the victim. This usually involves exploiting circumstances of the victim which make her specially vulnerable to abuse. Those constraints generally make it impossible or very difficult for the worker to leave. That is why, on the assumed facts, we describe Ms Wong’s departure from service with Mr Basfar as an “escape”.” (para. 43).
They noted that “the extent of the control over Ms Wong’s person and dominion over her labour exercised by Mr Basfar on the assumed facts of this case was so extensive and despotic as to place her in a position of domestic servitude” (para. 51).
The Court accepted the claimant’s argument that the diplomat made a profit even if no money changed hands. The forced labour of the claimant gave the diplomat “a substantial financial gain… albeit not in cash but in money’s worth” and was “accurately described as a commercial activity practised for personal profit” (para. 56).
This judgment marks a milestone in the fight against modern slavery. It has the potential to unlock accountability for the exploitation of migrant domestic workers by foreign diplomats, which, as the Court noted, is a “significant problem” (para. 5).
Ishaani Shrivastava was junior counsel to Professor Philippa Webb in the Employment Appeal Tribunal. In the Supreme Court, she was led by Timothy Otty QC and appeared alongside Paul Luckhurst and Professor Philippa Webb. She was instructed by Nusrat Uddin of Wilson Solicitors LLP.
To read the full judgment, please click here.
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