The death of the teenager Harry Dunn in a Northamptonshire road traffic collision in August involving Anne Sacoolas, the wife of a US diplomat, has focused attention on the peculiar legal status of diplomatic immunity.
What is diplomatic immunity?
It is the protection given under international and UK law to foreign diplomats and their families. It was formalised through the 1961 Vienna convention on diplomatic relations (VCDR), which was incorporated into domestic law by the 1964 Diplomatic Privileges Act. The reciprocal global agreements also protect UK diplomats working abroad.
How far does it extend?
As well as covering diplomats and their families anywhere in the UK, the same convention and legislation prevents UK officials from entering diplomatic premises. That inviolability enabled Julian Assange to stay in the Ecuadorian embassy in London for seven years. (His embassy stay was not the longest: a Hungarian archbishop spent 15 years sheltering inside the US embassy in Budapest.)
Can it be cancelled?
Without a foreign state agreeing to lift immunity, diplomats and their dependent families can only be detained “as a last resort” if, for example, they are deemed to be a danger to others or themselves. The only other sanction available to the Foreign Office would be to order their expulsion.
Does it apply to diplomats outside London?
According to the Crown Prosecution Service, the immunity does not apply to dependants of consular officials based outside London. However, it is understood that some diplomatic staff and their spouses located outside the capital can get that immunity.
What is a waiver?
When a foreign state agrees to remove that legal protection, it is known as a “waiver of immunity”. Individual diplomats cannot do so; the embassy of the foreign state has to make a formal request.
Do resident diplomats have to obey the law?
Diplomats are supposed to behave responsibly. The Vienna convention states: “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving state. They also have a duty not to interfere in the internal affairs of that state.”
What is the US’s approach to lifting immunity?
A US embassy spokesperson has said: “Immunity is rarely waived.” A parliamentary question in 2016 revealed a table of embassies that had incurred the largest debts through ignoring the London congestion charge. US diplomats were the No 1 offenders by a long distance, with 89,308 unpaid fines totalling £10,626,970. Japan came second with 59,533 unpaid fines amounting to a denied liability of £7,072,020.
The barrister Ben Emmerson QC, who took a case to the European court of human rights in 2002 over the US embassy reimposing diplomatic immunity when it lost an employment tribunal case, said road traffic collisions would not be considered by many to fall within the scope of diplomatic immunity.
“The general structure of diplomatic and state immunity,” he said, “is that those activities which touch on the core functions of an overseas mission are usually subject to absolute immunity, whereas peripheral activities – like purely commercial investments or employment contracts with domestic staff – are not.”
