Matthews (Appellant) v. Ministry of Defence (Respondents)
20. The difficulties inherent in Mr Gordon's argument are in my opinion highlighted by consideration of section 9 of the 1947 Act, which has since been repealed and to which no reference was made in argument. It read that subject as provided in the section, no proceedings in tort should lie against the Crown for anything done or omitted to be done in relation to a postal packet by any person while employed as a servant or agent of the Crown or in relation to a telephonic communication by any person while so employed. So the section preserved the general exemption from liability of those acting in the service of the Post Office, then treated as Crown servants. But the section went on to prescribe, in some considerable detail, the circumstances in which and the conditions subject to which common law claims might, as exceptions to the general prohibition, lie. It would in my opinion be a misreading of the section to interpret these provisions as procedural bars: in truth, they define the limits of the substantive right. But section 9 is clearly one of the provisions referred to in the opening words of section 2(1) of the Act. So there is a general rule of inclusion (section 2(1)), followed by a specific rule of exclusion (section 9(1)), followed by exceptions to this exclusionary rule. In the case of sections 2 and 10 the legislative technique is simpler: a general rule of inclusion followed by a rule of exclusion applying to the exempted claims. In section 9 there is, it is true, no equivalent to the certificate procedure under section 10(1)(b), but to treat that procedure, adopted for a quite different purpose, as leading to a different result for purposes of article 6 would be to elevate form over substance.
21. For all these reasons, which closely reflect the reasoning of the Court of Appeal, as well as those given by Lord Walker, I would answer the first question adversely to Mr Matthews. That must lead to the dismissal of the appeal. This conclusion obviates the need to consider whether, if section 10(1)(b) were a procedural bar, it could be justified. Although this aspect was fully canvassed in argument before the House, I think it preferable to express no opinion on an issue which does not fall for decision.
22. I have had the advantage of reading in draft the speech to be made by my noble and learned friend Lord Walker of Gestingthorpe. I agree with it and for the reasons which he will give I would dismiss the appeal. I also add some observations of my own.
23. The question before the House is whether the present application of section 10 of the Crown Proceedings Act 1947 to acts or omissions committed before 15 May 1987, when the Crown Proceedings (Armed Forces) Act 1987 was passed, is compatible with article 6 of the Convention. The effect of the section is, subject to the issue by the Secretary of State of a certificate under subsections (1)(b) or (2)(b), to prevent a serviceman who has suffered personal injury in the circumstances described in subsections (1)(a) or (2)(a), from suing the Crown in tort. The argument for incompatibility is that the effect of the section is to prevent a serviceman from having his civil rights determined by an independent and impartial tribunal.
24. The appellant accepts that in consequence of section 10, he has no claim in English law. It might therefore be said the law gives him no civil right which needs to be determined by a court. If there had been any dispute about whether he had such a right or not, it could easily have been resolved by Keith J, before whom these proceedings were brought. He would certainly have been an independent and impartial tribunal. But his services were not called upon for this purpose because the appellant conceded that he has no such right. His argument was that it was incompatible with article 6 that he did not have one.
25. That would seem at first sight to be a large proposition. Article 6 is concerned with standards of justice, the separation of powers and the rule of law. It would seem to have little to do with whether or not one should have an action in tort. That is a matter of national policy. Some countries, like New Zealand, do not believe in actions in tort for personal injuries. The Accident Insurance Act 1998 provides a no-fault compensation scheme instead. Some have more restricted no-fault schemes; New York, for example, has one for certain types of personal injuries arising out of the use or operation of a motor vehicle (see New York State Consolidated Laws, chapter 28, article 51). The question of whether a common law action for damages is the most sensible way of providing compensation for accident victims is controversial and Professor Atiyah's The Damages Lottery (1997, Hart) demonstrates that the existing system is expensive and in many respects unfair.
26. I start, therefore, with a predisposition to think that whether the appellant should have an action in tort or a no-fault entitlement under a pension scheme has nothing to do with human rights. Whether the pre-1987 no-fault scheme was fair is another matter; it depended upon the generosity of the pension entitlement. In 1987 Parliament took the view that it was not fair and that servicemen should be put on the same footing as everyone else. But human rights are not about fairness in this sense. Human rights are the rights essential to the life and dignity of the individual in a democratic society. The exact limits of such rights are debatable and, although there is not much trace of economic rights in the 50-year-old Convention, I think it is well arguable that human rights include the right to a minimum standard of living, without which many of the other rights would be a mockery. But they certainly do not include the right to a fair distribution of resources or fair treatment in economic terms - in other words, distributive justice. Of course distributive justice is a good thing. But it is not a fundamental human right. No one looking at the legal systems of the member States of the Council of Europe could plausibly say that they treated distributive justice as a fundamental principle to which other considerations of policy or expediency should be subordinated.
27. Mr Gordon does not argue for the existence of a human right to sue in tort. He concedes that if Parliament had simply said that servicemen should have no right of action, it would not have infringed article 6 or any other provision in the Convention. What makes it objectionable is the provision that the Crown's immunity from suit depends upon the issue of a certificate by the Secretary of State. That means that until the certificate was issued, the appellant had a civil right, a cause of action in tort. If no certificate had been issued, he would have been able to prosecute his action before the courts. So the section gives the Secretary of State a power at his discretion to cut off the appellant's action and prevent him from bringing it before the court. He is denied access to the court to enforce his civil right. And this, says Mr Gordon, is incompatible with article 6.
28. If the purpose of section 10(1)(b) and (2)(b) had been to give the Secretary of State a discretionary power to swoop down and prevent people with claims against the Crown from bringing them before the courts, I would agree. That proposition is in my opinion well supported by authority. In the great case of Golder v United Kingdom (1975) 1 EHRR 524 the Strasbourg court decided that the right to an independent and impartial tribunal for the determination of one's civil rights did not mean only that if you could get yourself before a court, it had to be independent and impartial. It meant that if you claimed on arguable grounds to have a civil right, you had a right to have that question determined by a court. A right to the independence and impartiality of the judicial branch of government would not be worth much if the executive branch could stop you from getting to the court in the first place. The executive would in effect be deciding the case against you. That would contravene the rule of law and the principle of the separation of powers.
29. These principles require not only that you should be able to get to the court room door. The rule of law and separation of powers would be equally at risk if the executive government was entitled, as a matter of arbitrary discretion, to instruct the court to dismiss your action. There are different ways in which one could draft a law to give the executive such a power. It might say that the cause of action was not complete without the government's consent. That would look like a rule of substantive law. Or it could provide that the government could issue a certificate saying that the action was not to proceed. That looks like a procedural bar. But provided one holds onto the underlying principle, which is to maintain the rule of law and the separation of powers, it should not matter how the law is framed. What matters is whether the effect is to give the executive a power to make decisions about people's rights which under the rule of law should be made by the judicial branch of government.
30. Mr Gordon's argument was however much more formalistic. He relies upon the distinction, used in several branches of the law, between substance and procedure. The first step, he says, is to ask whether the certificate negates the substantive right of action or whether it is a procedural bar to its enforcement. If there is no substantive right, article 6 is not engaged and that is an end of the matter. If it is a procedural bar, then article 6 is infringed unless the existence of such a bar can be justified at the time when it was sought to be enforced, that is, when the certificate was given in 2002. For that purpose, it must satisfy the standard requirements of proportionality. It must pursue a legitimate aim, it must be necessary and suitable for the attainment of that aim and must not restrict the right of access to the court disproportionately in relation to the importance of the aim it pursues.
31. Applying these principles, Mr Gordon says, first, that the certificate was plainly procedural. Until it was issued, the appellant had a cause of action. The certificate prevented him from enforcing it. On the second issue, proportionality, he says that enforcing section 10 in 2002 could not have a legitimate aim because Parliament had acknowledged in 1987 that the section was unfair.
32. I shall say something in a moment about the distinction between substance and procedure, but I shall for the moment take it at face value. Even on that basis, I think that the certificate extinguishes the substantive cause of action and does not merely operate as a procedural bar to its enforcement. It is clear from the researches of my noble and learned friend Lord Bingham of Cornhill, and would I think be clear from the provisions of section 10 itself, that the certificate is no more than a binding acknowledgement by the Secretary of State that the serviceman satisfies the "attributable to service" requirement to qualify for the pension award which is the quid pro quo for his inability to sue in tort. In order to resist a claim in tort, the Secretary of State must be willing to acknowledge that the serviceman will (subject to the other requirements such as disability) qualify for a pension. But in my opinion that is no more a procedural bar than the requirement that a purchaser who sues for delivery of goods must aver that he is ready willing and able to pay the price.
33. The distinction between substance and procedure is a slippery one: in Fayed v United Kingdom (1994) 18 EHRR 393, 430, para 67, the court remarked:
34. The distinction is used in a number of areas of the law, of which the conflict of laws is one. In similar vein to the Strasbourg court in Fayed, the editors of Dicey and Morris on the Conflict of Laws, 13th ed (2000), say, at pp 157-158, para 7-004:
35. The purpose for which the distinction is being used in applying article 6 is that stated with force and clarity by the Strasbourg court in Golder and subsequent cases, namely to prevent contracting states from imposing restrictions on the right to bring one's dispute before the judicial branch of government in a way which threatens the rule of law and the separation of powers. But the requirement of the certificate in section 10 is not to give the government an arbitrary power to stop the proceedings. The circumstances in which Parliament intended that no action should be brought are fully defined in subsections (1)(a) and (2)(a). The certificate of the Secretary of State cannot prevent the bringing of an action which does not fall within the terms of those subsections. Its purpose is to protect the serviceman by ensuring that he will not fall between two stools and be denied both damages and a pension.
36. My Lords, I turn to the two cases upon which Mr Gordon particularly relied. The first was Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249. The applicants, demolition contractors in Northern Ireland, complained that their tenders for contracts had been rejected because of the perceived religious opinions or political beliefs of their employees, contrary to the Fair Employment (Northern Ireland) Act 1976. They wanted to bring proceedings under the Act. But section 42 of the Act provided:
37. The Secretary of State gave such a certificate in respect of the refusal of the applicants' tender. The Strasbourg court found that they had been denied access to a court. The total ban on the right to complain of discrimination was disproportionate.
38. Was the effect of section 42 substantive or procedural? For some purposes it might be regarded as substantive. "This Act shall not apply " suggests that there is to be no substantive right. But if one looks at the purpose for which the distinction is being applied, namely to give effect to the policy of article 6, the Strasbourg court was in my respectful opinion right to regard section 42 as giving the Secretary of State power to say that for raison d'état the applicants should be denied the right to complain of discrimination. Section 42 is not to create an exception for cases in which Parliament thought that discrimination on political or religious grounds would be justified. It is to allow the Secretary of State to stop proceedings which would otherwise be justified in order to protect a different interest, namely state security. This is something on which the court rightly looks with suspicion and demands justification.
39. But the case is very different from the present, in which Parliament has said that the appellant should not be entitled to sue because, given the existence of the pension scheme, it is not in the public interest that he (or any other serviceman in a like position) should be able to sue. That does not involve any executive power to encroach upon the functions of the judicial branch of government. It is a general provision which goes to the substance of the right.
40. The other case relied upon was Fogarty v United Kingdom (2001) 34 EHRR 302, in which the state immunity accorded by section 16(1)(a) of the State Immunity Act 1978 in respect of proceedings concerning the employment of members of a mission was held to be a "procedural bar" which required to be justified. Mr Gordon says that the only reason given by the court (at pp 310 - 311, para 26) was that "an action against a state is not barred in limine: if the defendant state does not choose to claim immunity, the action will proceed to a hearing and judgment " If that is the ground for the decision, the parallel with this case is exact; if the Secretary of State had not chosen to give his certificate, the action could have proceeded to judgment.
41. I do not accept that one can take in isolation the fact that, absent the assertion of state immunity, the action would have been able to proceed. The 1978 Act conceded to the foreign state, in accordance with international law, that unless it voluntarily submitted to the jurisdiction of the courts of the United Kingdom, they would not adjudicate upon employment relations in its mission. It can be said that this in effect gave the foreign state an option to stop proceedings or submit to them. In that sense there is a resemblance to what the Secretary of State could do in Tinnelly. If, therefore, one equates the discretion of a foreign government to stop the proceedings with the executive discretion in Tinnelly, there is a parallel between the two cases. But the grounds upon which the discretion was conferred were in both cases different from the present. The reason for granting state immunity was not because Parliament thought that employees in missions merited different treatment from other people. It was to protect a different value, namely our international relations. In the present case, the reason why the appellant cannot sue is because Parliament considered that servicemen should not be able to sue for injuries suffered in the specified circumstances.
42. My Lords, I am bound to say that I think that some of the difficulties which have been experienced by the Strasbourg court in applying article 6 to English tort cases have arisen from trying to use the distinction between substantive rights and procedural bars or immunities without sufficient regard to the underlying purpose for which that distinction is being used. For example, in Osman v United Kingdom (1998) 29 EHRR 245 the court decided that the rule that no action lies against the police for alleged negligence in the conduct of a criminal inquiry was an "immunity" conferred upon the police which denied victims of police negligence access to a court. On the other hand, in Z v United Kingdom (2001) 34 EHRR 97, 138, para 100, the court said that it had been misinformed about English law and that the police had no immunity; it was merely that as a matter of substantive law one could not sue them. The minority said (at p 155) that putting the matter in this way made no difference. The fact was that the law gave the police what they called a "blanket immunity".
43. It seems to me, if I may respectfully say so, that instead of arguing over labels, it would be more helpful to go back to the fundamental principles deriving from Golder. A rule that people should not be entitled to compensation out of public funds for loss suffered on account of a failure of the police to take reasonable care in conducting a criminal investigation poses no threat to the rule of law or the separation of powers. It may or may not be fair as between victims of negligent police investigations and victims of road accidents but that, as I said earlier, is not a question of human rights. It gives the police or the executive no arbitrary powers; it is a rule of general application, based on the perception (which may be right or wrong) that the waste of resources in having lawyers and policemen investigate whether a previous investigation was conducted with reasonable care outweighs the potential unfairness to victims who cannot claim damages. Nor does the rule grant the police immunity in the sense of preventing judicial examination of the legality of their conduct. There are appropriate civil remedies against the police for any form of unlawful conduct other than negligence in the conduct of investigations. And even in the case of negligence, there are investigatory and disciplinary measures which can be taken if the public interest so requires. The action in damages, as I said at the start of this speech, has many problems and it is by no means obvious that it needs to exist whenever loss has been caused by negligence. These are questions of policy to be developed by the courts, subject if necessary to correction by democratic decision in Parliament. They raise issues of, among other things, fairness, but not of human rights.
44. As I am of opinion that article 6 has no application, I do not find it necessary to deal with the argument about proportionality. I would only observe that although Mr Gordon's argument on the first point is that what requires section 10 to satisfy the test of proportionality is the existence of the certification procedure, he does not apply that test to the certification procedure. He does not ask whether that pursues a legitimate aim, which it plainly does, since its aim is to ensure that the serviceman will get his pension. Instead, he uses the certification procedure as a lever to prise open the question of whether the whole scheme is fair or not. I think it would reflect no credit on the law if the question of whether a court could examine the fairness of the scheme turned solely on the question of whether it required a procedural step to be taken by the Crown, irrespective of the relevance of that step to the fairness of the scheme.
LORD HOPE OF CRAIGHEAD
45. The law relating to the liability of the Crown in tort for things done by members of the armed services has had a chequered history. The appellant, Alan Robert Matthews, claims to have sustained personal injury due to exposure to asbestos fibres and dust while he was serving as an electrical mechanic in the Royal Navy between 1955 and 1968. But he has the misfortune to have served during a period when the Crown enjoyed a complete immunity under section 10 of the Crown Proceedings Act 1947 from liability in tort for things done by members of the armed forces or the nature or condition of land, premises, ships, aircraft or vehicles used for their purposes.
46. Prior to the decision of your Lordships' House in Adams v Naylor  AC 543 which disapproved of this practice, the rigour of the Crown's immunity at common law was eased by the fact that, acting through the Treasury Solicitor, departments often defended actions which were raised against individuals who were nominated as defendants and the Treasury, as a matter of grace, paid damages if the defendant was found liable. The Crown Proceedings Act 1947 was then enacted to permit the Crown to be sued in tort. But section 10 of that Act maintained the exclusion of liability in the case of members of the armed forces.
47. The law remained in that state until December 1986 when the Secretary of State for Defence announced that the government accepted that section 10 of the 1947 Act ought to be repealed. It was suspended with effect from 15 May 1987 by section 1 of the Crown Proceedings (Armed Forces) Act 1987. Section 2 of that Act provides that section 10 of the 1947 Act may be revived by the Secretary of State if it appears to him that it is necessary or expedient to do so by reason of any imminent national danger or for the purposes of warlike operations overseas. For the time being therefore the Crown has no immunity from liability in respect of injuries caused by acts or omissions on the part of members of the armed services or by the nature or condition of ships of the kind that the appellant was serving in when he claims to have been exposed to the asbestos dust and particles. But the appellant's period of service pre-dated the 1987 Act, which is not retrospective.
48. As the Court of Appeal observed at the end of its judgment  EWCA Civ 773;  1 WLR 2621, 2643, para 79, it does seem harsh that servicemen who are now discovering that they have sustained injury as a result of tortious conduct prior to 1987 should be treated so much less favourably than servicemen who have sustained injury in similar circumstances but as a result of more recent events. But there is no doubt that this is the effect of the regime which has been created by the statutes unless, as the appellant now claims, section 10 of the 1947 Act is incompatible with his right to a fair trial under article 6(1) of the European Convention.
The Convention issue
49. The question which lies at the heart of this appeal is one of statutory construction. But the context is provided by the jurisprudence of the European Court of Human Rights. It has described the principles which must be applied. Article 6(1) provides that in the determination of his civil rights everyone is entitled to a fair hearing by an independent and impartial tribunal established by law. The Court has held that this provision must be read in the light of the rule of law referred to in the preamble to the Convention, of which the principle whereby a civil claim must be capable of being submitted to a judge is an integral part: Golder v United Kingdom (1975) 1 EHRR 524, 535-536, para 35. In other words, article 6(1) guarantees to each individual a right of access to a court for the determination of his civil rights.
50. As the Court explained in Golder, and the Commission emphasised in Ashingdane v United Kingdom (1983) 6 EHRR 69, 74, para 93 and Pinder v United Kingdom (1984) 7 EHRR 464, there would be no protection against the danger of arbitrary power if a state party were to be permitted to remove the jurisdiction of the courts to determine certain classes of civil claim or to confer immunities from liability on certain groups in respect of their actions. In Ashingdane v United Kingdom (1985) 7 EHRR 528, 546-547, para 57 the Court said that the limitations applied by the state must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.
51. But in order to invoke this principle one must first be able to say that the individual has a claim for the infringement of a civil right. The European Court has made it clear that this is a matter for the domestic law. Article 6(1) does not have anything to say about the content of the individual's civil rights, nor does it impose an obligation on the state party to confer any particular rights in substantive law on the individual: James v United Kingdom (1986) 8 EHRR 123, 157-158, para 81; Z v United Kingdom (2001) 34 EHRR 97, 134-135, 137, 138, paras 87, 98 and 100-101. As it was put in James v United Kingdom, para 81, article 6(1) extends only to "contestations" over civil rights and obligations which can be said, at least on arguable grounds, to be recognised in domestic law. Where limitations on a person's right of action are in issue, therefore, there is a dividing line which must be identified between those which are the product of rules of procedure and those which are the product of substantive law.
52. As the European Court itself has recognised, it is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law: Fayed v United Kingdom (1994) 18 EHRR 393, 430, para 67. It is of course in the nature of exercises of this kind that cases which lie at either extreme are easy to place into the appropriate category. In Powell and Rayner v United Kingdom (1990) 12 EHRR 355 section 76(1) of the Civil Aviation Act 1982 was held to exclude liability for trespass or nuisance as a matter of substantive law, with the result that the applicants had no substantive civil right to relief for which they could claim protection under article 6(1): see p 366, para 36. In Z v United Kingdom (2001) 34 EHRR 97 it was held that the decision of the House of Lords in X v Bedfordshire County Council  2 AC 633 did not remove the arguability of the claims retrospectively but that it was concerned instead with a novel category or area of negligence into which the law was not to be extended: see pp 136-137, para 96. On the other side of the line are Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249, in which the Secretary of State's certificate was held not to define the scope of the substantive right to protection against unlawful discrimination but to provide him with a defence to the complaint: see p 285, para 62; and Fogarty v United Kingdom (2001) 34 EHRR 302 where the grant of state immunity in answer to the applicant's victimisation claim was held to be a procedural bar to a claim for damages for a cause of action well known to English law: see pp 310-311, para 26.