Diplomatic immunity and the London congestion charge
The controversial Mayor of London, Ken Livingstone, has scored a popular bull’s-eye with his congestion charge (a form of road toll) for using a car in central London, a scheme which has significantly improved traffic flow, encouraged use of public transport, and raised handy additional income for investment in London transport. But when in July Transport for London (TfL) raised the charge from five to eight pounds a day, the American embassy joined a few others, including the Germans, in declaring that they would no longer pay the charge, on the grounds that they considered it a form of tax from which diplomats are exempt under the Vienna Convention of 1961. This has prompted the predictable rash of tabloid, blog, forum and other media comment on the allegedly anachronistic concept of diplomatic privileges and immunities under which rich and pampered foreign diplomats can drink champagne, avoid car parking charges, and molest children without any comeback on the part of the affronted citizenry, all at the affronted citizenry’s expense.
< Fi Glover
As a former diplomat, and supposedly a past slurper on the diplomatic privilege and immunity gravy train, I found myself being questioned on the BBC Radio 4 weekly politics programme ‘Broadcasting House’ on 23 October 2005 by the sparky Fi (pron. Fee) Glover, the programme’s presenter, about these weighty matters. The event, if such a brief radio item can be so described, is commemorated in a signal act of filial piety in Owen Barder’s blog, which even includes a link to Owen’s recording of the relevant interview, enabling anyone sufficiently interested to listen to my three or four minutes of fame by clicking here. (I am further indebted to Owen for almost all the chapter and verse cited below for the exact status of the congestion charge.)
As I had to share the last five or six minutes of the programme with the weather forecast, there wasn’t time to get into the intricacies of the precise status of the congestion charge, still less of the rationale for diplomatic privileges and immunities. So here goes.
The congestion charge: are diplomats immune from paying it? The short answer is No. (It’s also the long answer, actually.) It all hinges on whether the congestion charge is a tax – in which case diplomats are immune from any obligation to pay it – or whether it’s in the category of “charges levied for specific services rendered”, the precise words of Article 34(e) of the Vienna Convention:
34. A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except: …
(e) charges levied for specific services rendered…
So what is this congestion charge? It’s levied by Transport for London, which has the formal status of a public corporation, as confirmed by the British Treasury’s Classification of Expenditure – Public and Private Sectors:
Public corporations: Post Office; Transport for London; British Nuclear Fuels; National Health Service Trust hospitals; Trading Funds; Royal Mint; Companies House; Land Registry; Manchester Airport; Forest Enterprise; Tote; Patent Office
Revenues from congestion charges are not part of central or local government revenues: any surplus from the charges is ploughed back into London transport costs, not available for local or national government expenditure. ‘Transport for London’ is in the same category as the post office, as the preceding quotation shows, and even impoverished American diplomats wouldn't claim exemption from the obligation to pay for their postage stamps.
A paper for the OECD National Accounts Experts Meeting of the OECD Statistics Directorate confirms the formal position:
One example is the London congestion charge … This could have been seen as a source of tax revenue if the money had gone in to a general fund for spending on the full range of services. However the legislation specifies that the income from the congestion charge can only be spent on a limited range of transport related items in London. Transport in London is organised as a number of real and quasi public corporations owned by local government in London. These provide market services to users of London's transport including underground trains and buses. We see the road charge scheme as an additional market service provided by them. There is cross subsidy between different categories of user but this is common in the provision of services in the private sector. The congestion charge is … a service charge not a tax because of the ring fenced accounting inherent in the scheme. This is also consistent with the national accounts manuals where the Eurostat Manual on Government Deficit and Debt, which is consistent with ESA95, cites road and bridge tolls as examples which should be treated as payments for the provision of services.
Thus the UK Office of National Statistics, applying international guidelines agreed by the European Union and the OECD, has concluded that it is a charge and not a tax.
The position is made additionally clear by the fact that the UK tax authority, the Inland Revenue, does not allow expenditure on congestion charges as a tax-deductible business expense, as it would if the charge could be regarded as a tax:
…motorists will not be able to claim the money [paid in congestion charges] back as a tax-deductible expense. The Revenue said that it would treat such charges in the same way as it looks at Underground and rail fares and parking fees, which are not seen as allowable business expenses.
But that’s not all. The congestion charge is self-evidently a form of road toll, as the previous quotation confirms. Not only do diplomats in (probably) all countries, certainly including the USA, pay road tolls without attempting to claim diplomatic immunity from them (partly no doubt because a diplomat trying to refuse to pay a road toll wouldn’t get to travel very far): the US Federal Department of Transport itself defines road tolls as user fees (as opposed to taxes):
a toll for the use of highway is considered a user fee since it is related to the specific use of a particular section of highway
US Embassy, please note.
The Americans’ and Germans’ assertion that the congestion charge is a tax, and not a charge levied for a specific service rendered (i.e. permission to use certain defined roads at specified times on a specified date), is simply unsustainable. The diplomats should grit their teeth and pay up (as they did, apparently, until the charge was increased!).
However, that’s not quite the end of the story. Failure to pay the basic charge results, after a certain length of time, in an increased penalty charge, eventually mounting to as much as £150:
Following a final check at midnight, the computer will keep the registration numbers of vehicles that should have paid but not done so. We will then manually check each recorded image and issue a Penalty Charge Notice of £100 to the registered keeper or hirer of all those vehicles. As with parking penalties, this will be reduced to £50 for prompt payment within 14 days. Failure to pay the penalty charge within 28 days will result in the penalty being increased to £150.
Once a penalty has increased to £150, a charge certificate will be sent to the registered keeper or hirer of the vehicle advising them of the increase and that action to recover the outstanding penalty will now be taken. As with parking penalties, failure to pay the outstanding charge can result in further action, including registration of the debt with the County Court and finally bailiffs being appointed to recover the debt.
The diplomat who has failed (or refused) to pay the initial charge is probably just as much under a legal obligation to pay the consequent penalty charge as he was to pay the basic charge in the first place, the penalty charge having the same legal character as the basic congestion charge. But enforcing it may be another matter:
Vehicles with three or more outstanding congestion charging penalty charges may be clamped or removed by staff operating across the whole of Greater London, not just in the congestion charging zone. The current clamp fee is £65 and the removal fee is £150. Storage in the car pound also costs £25 a day. If a vehicle is clamped or removed, then all of the outstanding penalty charges and the appropriate clamp/removal and storage fees must be paid before the release of the vehicle is authorised. If the release fee is not paid, then the vehicle may be disposed at auction or by scrapping. The registered keeper will remain liable for all outstanding charges, including a £60 disposal fee.
Here the question of the inviolability of the diplomat, and his immunity from the jurisdiction of the courts in the country where he is serving, comes into play. Under Articles 29-31 of the Convention, the diplomat cannot be arrested or detained, and his papers and (in almost all circumstances) his property enjoy similar inviolability. Article 22 also specifies that –
The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
The combined effect of these provisions seems to be that Transport for London would have no way of forcing an accredited diplomat to pay either the basic charge or accumulated penalty charges. Clamping or towing away the offending owner’s vehicle, scrapping or selling it, attempts to recover the debt through the County Court, or action by bailiffs to extract the money owed, would all contravene Britain’s obligations under the Vienna Convention. So is the free-loading diplomat sitting pretty as he ignores his obligation to pay charges which, under the same Convention, he is legally obliged to pay?
Once again, the short and long answers are both No. Under Article 41 of the Convention, —
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.
Transport for London, the London Mayor, and in particular the Foreign & Commonwealth Office in London have a genuine cause for complaint against an embassy or high commission (the title of the equivalent of an embassy of another Commonwealth country) if its diplomatic staff are consistently failing to respect British laws and regulations from whose operation they have no immunity under the Convention, as is undoubtedly the case with regard to non-payment of the congestion charge. The embassy’s administration officer, or some other member of its staff, perhaps the deputy Head of Mission, could expect to be summoned by the head of the relevant department in the FCO to receive a friendly but stern rebuke, with a formal request to ensure that his or her embassy’s staff are reminded of their obligations and instructed to pay whatever debts they have incurred. If this has no effect, in due course the ambassador or high commissioner himself would no doubt be summoned to the FCO to see a minister or, more likely, the permanent under-secretary of state, to receive a similar message, accompanied by an expression of regret that the earlier interview at lower level has not been acted upon.
Still no remedial action by the offending embassy? The FCO has three more weapons in its armoury, one a pea-shooter, the other two potential Weapons of Mass Destruction. The pea-shooter is a briefing of the UK media about the issue, including the naming and shaming of the offending embassies and high commissions for publication, accompanied by suitably scathing editorial comment, perhaps with a formal complaint to the embassy’s own government via a formal démarche to the country’s Foreign Ministry. The WMDs are, first, a formal request to the relevant ambassador to waive the immunity of the offenders in his mission from legal process so that court action may be taken against them to recover the debts due: and, secondly, if even that fails, the FCO may issue a warning to all embassies and high commissions that the FCO will henceforth keep a record of the personal identities of all individual diplomats who persistently fail to pay their congestion charges: and that any diplomat found to have committed this offence, say, three times will be required to leave. Three hits and you’re out.
Article 9 of the Convention contains the host country’s ultimate deterrent to bad behaviour:
The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission.
It will be surprising if this final sanction fails to work. Most foreign diplomats like being posted to London and are deeply reluctant to leave. On past occasions when there have been similar arguments over diplomats in London refusing to pay their parking fines, all stages of the escalating counter-measures described above have proved generally ineffective except the last. We may be pretty sure that this will do the trick.
One final postscript. Both the Foreign & Commonwealth Office and most of the heads of mission in London will want to avoid if possible allowing this issue to escalate into a full-blown row that might even sour otherwise good relations between friendly governments. Their instinct will be to search for a mutually face-saving compromise. One such might be a provision that embassies and high commissions should henceforth pay a reasonably modest annual charge, the exact amount varying according to the numbers of their diplomats involved, that would entitle their diplomatic staff to use their cars in the congestion charge zone without individually having to pay. Diplomats do, after all, have to move around in central London in the course of their duties, for example to visit the Foreign & Commonwealth Office and other embassies, and there may be security problems about their use of public transport, problems of a kind that would not apply to most other Londoners. I offer this possible solution, entirely free of charge, to the warring parties, à toutes fins utiles (as diplomatic toffs of the old school used to say). Pax vobiscum.
Well, not quite final. This disquisition has gone on, you may think, quite long enough. For some thoughts about the more general question of diplomatic privileges and immunities, their rationale and justification, if any, Watch This Space.
 But now see the Customs & Revenue document cited by Matt in his comment below.