The Kingdom of Spain v Lydia Lorenzo

A court may make a declaration of incompatibility where legislation is incompatible with a Convention right, but the declaration should be confined to the incompatibility established by the court’s reasoning. The court need not decide additional Convention grounds where doing so would serve no purpose. When making a declaration of incompatibility, the court should not advise on the legislative changes required to achieve Convention compliance. Where a respondent’s legal team acts pro bono, the court may make a pro bono costs order under the Legal Services Act 2007.

The Court of Appeal had previously determined an appeal from the Employment Appeal Tribunal and invited further submissions on whether section 4(2)(a) of the State Immunity Act 1978 was incompatible with the European Convention on Human Rights. The respondent sought a declaration relying on Article 6, Article 14 and Article 1 of the First Protocol. Spain was neutral. The Secretary of State accepted that the earlier judgment established incompatibility with Article 6, but submitted that it did not support a declaration concerning Article 14 or A1P1. The court also had to determine costs.

1. Declaration of incompatibility. The court accepted the Secretary of State’s submissions and declared that section 4(2)(a) of the State Immunity Act 1978 is incompatible with Article 6 of the European Convention on Human Rights. The declaration was confined to Article 6.
2. The court declined to determine whether Article 14 or Article 1 of the First Protocol added anything. Once incompatibility with Article 6 had been established, those questions were regarded as somewhat theoretical, and determining them would serve no purpose.
3. In making a declaration of incompatibility, the court should not advise on what legislative action is required to bring the legislation into conformity with the Convention. The court accepted the Secretary of State’s reliance on the observation of Baroness Hale of Richmond in R(Wright) v Secretary of State for Health [2009] UKHL 3; [2009] AC 739.
4. Costs. The respondent’s legal team had acted pro bono, but section 194 of the Legal Services Act 2007 permitted a pro bono costs order. The appellant was ordered to reimburse the respondent’s court fee of £626 and to pay £27,500 in pro bono costs to the prescribed charity, summarily assessed at that sum.

• Court of Appeal (Civil Division): In the earlier judgment, [2024 EWCA Civ 1602], the court invited further submissions on whether a declaration of incompatibility should be made.
• Court of Appeal (Civil Division): In this supplementary judgment, the court made the declaration limited to Article 6 and made the specified costs orders.
• Employment Appeal Tribunal: The appeal originated from decision EA-2021-000659-NLD. The judgment does not state the EAT’s substantive outcome.