Last Updated on November 22, 2019 by LawEuro
Communicated on 17 September 2019
FIRST SECTION
Applications nos. 12917/19 and 26857/19
Nicolas BUTTET against the United Kingdom
and Mahamoud Mohamed AHMED against the United Kingdom
lodged on 4 March 2019 and 16 May 2019 respectively
STATEMENT OF FACTS
The applicant in the first case, Mr Nicolas Buttet, is a French national who was born in 1978 and lives in Tolosane. He is represented before the Court by Ms S. Chahal of Bindmans LLP, a lawyer practising in London.
The applicant in the second case, Mr Mahamoud Mohamed Ahmed, is a British national who was born in 1940 and lives in London. He is represented before the Court by Ms R. Lester of Axiom Stone Ltd., a lawyer practising in London.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicants in these two cases, like the applicants in the related cases of Benkharbouche v. the United Kingdom and Janah v. the United Kingdom (applications nos. 19059/18 and 19725/18), had worked as domestic staff at sovereign embassies in the United Kingdom. When they brought claims against their employers, a question arose concerning the operation of the State Immunity Act 1978 (“the 1978 Act”). The 1978 Act renders a foreign state immune from the jurisdiction of a United Kingdom court in a claim based on the foreign state’s employment of the claimant, where the claimant either, at the time of the contract, was neither a United Kingdom national nor habitually resident in the United Kingdom (section 4(2)(b) of the 1978 Act); or works for the foreign state’s diplomatic mission (section 16(1)(a) of the 1978 Act).
The claims brought by the applicants in the present case were stayed by the Employment Tribunal pending the conclusion of the domestic proceedings in Benkharbouche v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Foreign and Commonwealth Affairs and Libya v. Janah. Those proceedings concluded on 18 October 2017, with a judgment of the Supreme Court (see section on Domestic law and practice, below). In that judgment, the Supreme Court held that there was no basis in customary international law for the application of state immunity in an employment context to acts of a private law character (such as the employment of purely domestic staff in a diplomatic mission). It therefore held that neither section 4(2)(b) nor section 16(1) could be justified by any principle of international law and, accordingly, they were incompatible with Article 6 of the Convention. In reaching this conclusion, it upheld a declaration of incompatibility which had been made by the Court of Appeal under section 4 of the Human Rights Act 1998.
The Supreme Court further found section 4(2)(b) and section 16(1) of the 1978 Act to be incompatible with Article 47 of the Charter of Fundamental Rights of the European Union, which meant that those provisions could be disapplied in respect of any employment claims which fell within the scope of European Union law.
According to the Ministry of Justice’s Report to the Joint Committee on Human Rights on the Government’s response to Human Rights judgments 2017–2018, dated November 2018, the Government is still considering its response to the declaration of incompatibility made by the Court of Appeal in Benkharbouche and Janah.
1. The applicant in the first case
The applicant in the first case was employed as a security guard at the French Embassy in London between 1 September 2008 and 12 October 2012, when he was dismissed without notice. He brought a claim against his employer for unfair dismissal and breach of contract. In response, his employer relied on section 16(1) and section 4(2)(b) of the 1978 Act.
On 17 September 2018 the Employment Tribunal dismissed the applicant’s claims on the basis that it did not have jurisdiction to hear them by reason of the 1978 Act.
2. The applicant in the second case
On 1 April 2004 the applicant in the second case began working for the Embassy of the State of Qatar in London as a driver and night security officer. He appears to have primarily worked at the embassy’s medical centre. His employment ended on 8 August 2013. He subsequently brought a claim against the Qatari Embassy and the Medical Attaché to the diplomatic mission in the United Kingdom for race discrimination, race‑related harassment, direct age discrimination, unfair dismissal and wrongful dismissal. In response, it was asserted that the embassy was entitled to state immunity under section 16(1) of the 1978 Act, and that the Medical Attaché was entitled to diplomatic immunity under section 2(1) of the Diplomatic Privileges Act 1964 and Articles 1(b) and 31(1) of the Vienna Convention on Diplomatic Relations.
On 3 December 2018 the Employment Tribunal dismissed the applicant’s claims for unfair dismissal and wrongful dismissal on the basis that it had no jurisdiction to hear them.
As the remaining claims fell within the scope of European Union law, section 16(1) of the 1978 Act could be disapplied. The Employment Tribunal held a hearing in March 2019. On 28 March 2019 it dismissed the claims brought against the Medical Attaché because he was diplomatically immune. However, it found that the applicant had been racially abused on one occasion and that he was in part dismissed on account of his race. It awarded him GBP 8,000 against the embassy for injury to feelings.
B. Relevant domestic law and practice
1. The State Immunity Act 1978
The relevant provisions provide as follows:
“1(1) 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.
…
3(1) A State is not immune as respects proceedings relating to –
(a) a commercial transaction entered into by the State;
(b) an obligation of the State which by virtue of a contract (whether a commercial transaction or not) falls to be performed wholly or partly in the United Kingdom.
…
(3) In this section “commercial transaction” means –
(a) any contract for the supply of goods or services;
(b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and
(c) any other transaction or activity (whether of a commercial industrial, financial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority;
but neither paragraph of subsection (1) above applies to a contract of employment between a State and an individual.
4(1) 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.
(2) Subject to subsections (3) and (4) below, this section does not apply if –
(a) at the time when the proceedings are brought the individual is a national of the State concerned; or
(b) at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or
(c) the parties to the contract have otherwise agreed in writing.
…
16(1) 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.”
The Convention scheduled to the Diplomatic Privileges Act of 1964 is the Vienna Convention on Diplomatic Relations (1961). Article 1 of that Convention defines “members of a mission” as including the “staff of the mission in the domestic service of the mission”.
2. The Human Rights Act 1998
The Human Rights Act provides, insofar as relevant:
“3 Interpretation of legislation
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
4 Declaration of incompatibility
(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4) If the court is satisfied—
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility.”
3. Ghaidan v. Godin-Mendoza [2004] 2 AC 557
In Ghaidanthe House of Lords addressed the question of the way in which the word “possible” in the expression “[s]o far as it is possible to do so” in section 3 of the Human Rights Act 1998 was to be interpreted. Lord Nicholls of Birkenhead stated that:
“[T]he conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is ‘possible’, a court can modify the meaning, and hence the effect, of primary and secondary legislation.
Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, ‘go with the grain of the legislation’. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation.”
4. Benkharbouche v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Foreign and Commonwealth Affairs and Libya v. Janah [2017] UKSC 62
The applicants in these cases were domestic workers in embassies in London who had brought claims against their former employers. Their claims which were dismissed by different judges in the Employment Tribunal on the ground that the employers were immune by operation of the State Immunity Act 1978. The applicants appealed against that decision, arguing that sections 4(2)(b) and 16(1) of the 1978 Act were incompatible with Article 6 of the Convention and Article 47 of the EU Charter.
The Supreme Court considered the relevant test to be whether or not sections 4(2)(b) and 16(1) of the 1978 Act were consistent with a rule of customary international law that denied the English court jurisdiction in such cases. However, the court considered that the only consensus to be found in customary international law was in favour of a “restrictive doctrine”, whereby immunity was limited to acts by a state in the exercise of sovereign authority and not to acts of a private law nature. As such, there was no basis in customary international law for the application of state immunity in an employment context to acts of a private law character (such as the employment of purely domestic staff in a diplomatic mission). It followed that neither section 4(2)(b) nor section 16(1) could be justified by any principle of international law and, accordingly, they were incompatible with Article 6 of the Convention and Article 47 of the Charter.
Lord Sumption JSC, with whom Baroness Hale of Richmond PSC, Lord Wilson, Lord Neuberger of Abbotsbury and Lord Clarke of Stone‑cum-Ebony agreed) held:
“64. Under the terms of the [1978] Act, contracts of employment are excluded from the ambit of section 3, which applies the distinction between sovereign acts and acts of a private law character to other contracts for the supply of services. Section 4 by comparison identifies those contracts of employment which attract immunity by reference to the respective connections between the contract or the employee and the two states concerned. In principle, immunity does not attach to employment in the local labour market, ie where the contract was made in the United Kingdom or the work fell to be performed there: see section 4(1). However, this is subject to sections 4(2)(a) and (b), which are concerned with the employee’s connections by nationality or residence with the foreign state (section 4(2)(a)) or the forum state (section 4(2)(b)). Section 4(2)(a) extends the immunity to claims against the employing state by its own nationals. As I have said, this may have a sound basis in customary international law, but does not arise here. Section 4(2)(b) extends it to claims brought by nationals or habitual residents of third countries. Both subsections apply irrespective of the sovereign character of the relevant act of the foreign state.
65. Sections 4(2)(a) and (b) are derived from article 5.2(a) and (b) of the European Convention on State Immunity. Like section 4 of the Act, article 5 of the Convention deals with contracts of employment without reference to the distinction between acts jure imperii and jure gestionis which are the basis of the restrictive doctrine of immunity. Contractual submission apart, the availability of state immunity in answer to employment claims is made to depend entirely on the location of the work and the respective territorial connections between the employee on the one hand and the foreign state or the forum state on the other. The explanatory report submitted to the Committee of Ministers of the Council of Europe justified this on the ground that ‘the links between the employee and the employing State (in whose courts the employee may always bring proceedings), are generally closer than those between the employee and the State of the forum.’
66. The United Kingdom is not unique in applying this principle. Seven other European countries are party to the European Convention on State Immunity and six other countries have enacted legislation containing provisions similar to section 4(2) of the United Kingdom Act. But this is hardly a sufficient basis on which to identify a widespread, representative and consistent practice of states, let alone to establish that such a practice is accepted on the footing that it is an international obligation. The considerable body of comparative law material before us suggests that unless constrained by a statutory rule the general practice of states is to apply the classic distinction between acts jure imperii and jure gestionis, irrespective of the nationality or residence of the claimant. Indeed, the courts of a significant number of jurisdictions have refused to apply the immunity as between states which are not both party to the Convention, unless they performed functions directly related to the exercise of the state’s sovereign authority, on the ground that the requirements of general international law differed on this point from those of the Convention …
67. I conclude that section 4(2)(b) of the State Immunity Act 1978 is not justified by any binding principle of international law.
…
69. Since section 16(1)(a) extends state immunity to the claims of any employee of a diplomatic mission, irrespective of the sovereign character of the employment or the acts of the state complained of, it is plain that it cannot be justified by reference to any general principle of immunity based on the restrictive doctrine. It could be justified only if there were a special rule, in effect an absolute immunity, applicable to embassy staff. I have already pointed out, in the context of section 4(2)(b), that in jurisdictions where the courts determine claims to immunity by reference to customary international law, the test is whether the relevant acts of the state were exercises of sovereign authority. The analysis need not be repeated here. It is inconsistent with any suggestion that immunity can attach to all embassy staff as such.”
In disposing of the case, the Supreme Court did not consider it necessary to decide whether a decision of a domestic court that a state is entitled to immunity engaged Article 6 of the Convention at all. Lord Sumption acknowledged that this was an area where the House of Lords and the Strasbourg Court had disagreed in Jones and Othersv. the United Kingdom, nos. 34356/06 and 40528/06, ECHR 2014, but in his view:
“there may well come a time when this court has to choose between the view of the House of Lords and that of the European Court of Human Rights on this fundamental question. But the premise on which the question arises is that there is a rule of international law which denies the English court jurisdiction in the instant case. In both Jones and Lampen-Wolfe, the Appellate Committee had satisfied itself that there was. I would not be willing to decide which of the competing views about the implications of a want of jurisdiction is correct, unless the question actually arose.”
C. Relevant international law
1. The United Nations
(a) United Nations International Law Commission Draft Articles on Jurisdictional Immunities of States and Their Property 1991
The relevant part of the text reads as follows:
Article 11 – Contracts of employment
“1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.
2. Paragraph 1 does not apply if:
(a) the employee has been recruited to perform functions closely related to the exercise of governmental authority;
(b) the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;
(c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded;
(d) the employee is a national of the employer State at the time when the proceeding is instituted; or
(e) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject matter of the proceeding.”
In the commentary on the ILC’s Draft Articles, it was stated that the rules formulated in Article 11 appeared to be consistent with the trend in the legislative and treaty practice of a growing number of States (ILC Yearbook, 1991, Vol. II, Part 2, p. 44, paragraph 14).
(b) The United Nations Convention on Jurisdictional Immunities of States and their Property 2004
In December 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property. The Draft Articles were used as the basis for the text. The final version of Article 11, as set out in the Convention, reads as follows:
“I. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.
2. Paragraph I does not apply if:
(a) the employee has been recruited to perform particular functions in the exercise of governmental authority;
(b) the employee is:
(i) a diplomatic agent, as defined In the Vienna Convention on Diplomatic Relations of 1961;
(ii) a consular officer, as defined In the Vienna Convention on Consular Relations of 1963;
(iii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or
(iv) any other person enjoying diplomatic immunity;
(c) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;
(d) the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State;
(e) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or
(f) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.”
To date, twenty-eight states have signed the Convention, including the United Kingdom, and twenty-one have ratified it, not including the United Kingdom. Libya and Sudan have neither signed nor ratified it. It will not come into force until it has been ratified by thirty states.
(c) The Vienna Convention on Diplomatic Relations 1961
Article 7 of the Vienna Convention provides that:
“Subject to the provisions of articles 5, 8, 9 and 11, the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attachés, the receiving State may require their names to be submitted beforehand, for its approval.”
2. The Council of Europe
The European Convention on State Immunity, which entered into force on 11 June 1976 (on 4 October 1979 in the United Kingdom), provides as follows:
“Article 5
1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum.
2. Paragraph 1 shall not apply where:
(a) the individual is a national of the employing State at the time when the proceedings are brought;
(b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State; or
(c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject-matter.
3. Where the work is done for an office, agency or other establishment referred to in Article 7, paragraphs 2.a and b of the present article apply only if, at the time the contract was entered into, the individual had his habitual residence in the Contracting State which employs him.
…
Article 15
A Contracting State shall be entitled to immunity from the jurisdiction of the courts of another Contracting State if the proceedings do not fall within Articles 1 to 14; the court shall decline to entertain such proceedings even if the State does not appear.
…
Article 32
Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.”
In its comments on Article 5, the Explanatory Report indicates that
“This article concerns contracts of employment. A distinction has been drawn between contracts of employment and other contracts (Article 4) because in certain circumstances it may be justifiable to accord immunity to a defendant State under a contract of employment particularly when the employee is a national of the employing State (see paragraph 2, subparagraph (a)). The same is true when the employee is a national neither of the State for whom be works, nor of the State where he works, and where the contract of employment was not concluded on the territory of the latter State namely where the employee is a foreign worker who has not been locally recruited (see paragraph 2, sub-paragraph (b)). In both cases the links between the employee and the employing State (in whose courts the employee may always bring proceedings), are generally closer than those between the employee and the State of the forum.”
D. European Union law
1. The Charter of Fundamental Rights of the European Union
Article 47 of the Charter provides:
“Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”
Article 52(3) provides as follows:
“In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”
2. Åklagaren v. Hans ÅkerbergFransson (Case C-617/10 ECLI:EU:C:2013:105)
In this case the Swedish court had referred the question whether a provision of national law requiring there to be clear support in the Convention or case-law of the Strasbourg Court for disapplying national provisions which might infringe the “no double jeopardy” principle was compatible with EU law. The CJEU confirmed that:
“it is settled case-law that a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of European Union law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such a provision by legislative or other constitutional means. …
Any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of European Union law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent European Union rules from having full force and effect are incompatible with those requirements, which are the very essence of European Union law. …
Furthermore, in accordance with Article 267 TFEU, a national court hearing a case concerning European Union law the meaning or scope of which is not clear to it may or, in certain circumstances, must refer to the Court questions on the interpretation of the provision of European Union law at issue. …48. It follows that European Union law precludes a judicial practice which makes the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the Charter conditional upon that infringement being clear from the text of the Charter or the case‑law relating to it, since it withholds from the national court the power to assess fully, with, as the case may be, the cooperation of the Court of Justice, whether that provision is compatible with the Charter.”
3. Ahmed Mahamdia v. People’s Democratic Republic of Algeria (Case C‑154/11 ECLI:EU:C:2012:491)
Mr. Mahamdia, who had both Algerian and German nationality, was employed as a driver in the Algerian embassy in Berlin. His contract contained a clause conferring exclusive jurisdiction, if there was a dispute, on the Algerian courts. He brought proceedings against Algeria in the Berlin Labour Court for unpaid overtime and dismissal. Algeria contended that the German courts had no jurisdiction, relying on both state immunity and the exclusive jurisdiction clause. The Higher Labour Court referred two questions to the CJEU for a preliminary ruling. One of the questions asked whether the embassy of a non-member state, which was situated in a member state, was a “branch, agency or establishment” for the purposes of Article 18(2) of the Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“the Brussels Regulation”). The other question related to the effect of the exclusive jurisdiction clause. In considering the first question of customary international law on state immunity, the CJEU held that:
“it must be observed that under the generally accepted principles of international law concerning immunity from jurisdiction a State cannot be sued before the court of another State in a dispute such as that in the main proceedings. Such immunity of States from jurisdiction is enshrined in international law and is based on the principle par in parem non habet imperium, as a State cannot be subjected to the jurisdiction of another State.
However, as the Advocate General observes in points 17 to 23 of his Opinion, in the present state of international law, that immunity is not absolute, but is generally recognised where the dispute concerns sovereign acts performed iureimperii. It may be excluded, by contrast, if the legal proceedings relate to acts performed iuregestionis which do not fall within the exercise of public powers.
Consequently, in view of the content of that principle of customary international law concerning the immunity of States from jurisdiction, it must be considered that it does not preclude the application of Regulation No 44/2001 in a dispute, such as that in the main proceedings, in which an employee seeks compensation and contests the termination of a contract of employment concluded by him with a State, where the court seised finds that the functions carried out by that employee do not fall within the exercise of public powers or where the proceedings are not likely to interfere with the security interests of the State. On the basis of that finding, the court seised of a dispute such as that in the main proceedings may also consider that that dispute falls within the material scope of Regulation No 44/2001.”
COMPLAINTS
The applicants complain under Article 6 of the Convention that the State Immunity Act 1978 imposed a disproportionate interference with their right of access to court.
QUESTION TO THE PARTIES
Has there been a breach of the applicants’ rights under Article 6 of the Convention by virtue of the operation of the State Immunity Act 1978?
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