Matthews (Appellant) v. Ministry of Defence (Respondents)
83. The first step was to grant industrial injury benefit to civilian employees who were injured by the negligence of their fellow employees and war pensions to servicemen who were injured while on war service. Proof of fault was not required. Service pensions were later made available for disability attributable to military service whether or not it was war service. At the end of the Second World War, however, it was still the case that no action in tort lay against the Crown or for the negligence of a fellow employee; the law recognised no legal liability.
84. These were substantive rules of law. They were rules of general application and marked the limits of tortious liability in English law. The Committee on Ministers' Powers, which reported in 1932, (Cmd 4060), described three defects in the subject's remedies against the Government. The first two were procedural. They were:
But the third was unmistakably expressed in terms of substantive law:
85. The Act introduced a radical change in the law. It was the subject of a monograph by Professor Glanville Williams in 1948, Crown Proceedings: An Account of Civil Proceedings by and against the Crown as affected by the Crown Proceedings Act 1947. He wrote:
In relation to tort, however, and by way of justification for his discussion of the pre-Act law, which he was anxious should not be considered as antiquarianism, he wrote:
86. Since the Crown was beyond the reach of the English law of tort, a change in the substantive law was necessary to render the Crown liable. This was effected by section 2(1) of the Act, which provided:
87. For the first time in our history, the Crown was now liable in tort. But its liability was not unlimited. The proviso to section 2(1) preserved the common employment doctrine, though this limitation was short-lived, for the doctrine was abolished by the Law Reform (Personal Injuries) Act 1948. More significantly for present purposes section 2(1) was expressed to be "subject to the provisions of this Act". This looked forward to sections 9 (postal packets) and 10 (the armed forces). These constituted exceptions to the Crown's new found tortious liability and thus, so far as they extended, operated to preserve the pre-existing law.
88. The opening words of section 10(1) were:
This was the language of substantive law; it prevented any liability from arising in the circumstances mentioned. Section 10(2) was differently expressed, but was to the same effect:
in the circumstances prescribed.
89. Neither subsection applied unless the Secretary of State certified that the claimant's suffering the thing which is alleged to have caused the death or personal injury:
to a war pension.
90. This brings me to the function served by the certificate. As Glanville Williams explained (op cit pp 81 - 82) the underlying principle was that the Crown should continue to be immune from liability in tort to members of the armed forces who were injured or killed while on duty or while in any land, premises, ship, aircraft or vehicle used for forces purposes, in such circumstances that they qualified for a war pension.
91. Glanville Williams was opposed to the Crown's continued immunity from civil liability, but in Pinder v United Kingdom the European Commission recognised, at p 466, para 8, that it was
92. As the concluding words of that passage show, the Commission did not regard section 10 as a procedural bar, but as a rule which regulated civil liability, a matter of substantive law. It also observed, at p 466, para 9, that the substitution of a no-fault pension scheme for tortious liability was by no means unfavourable to the serviceman:
93. Of course there is a trade off between the advantages and disadvantages of a statutory pension scheme, particularly if the entitlement is not particularly generous. Those who believed that they would have no difficulty in establishing negligence might well prefer to dispense with the pension and have a right to damages in tort instead; others would take the opposite view. Glanville Williams believed that they should have both. But this was a matter for Parliament; and Parliament decided otherwise.
94. A serviceman was not to be entitled to both a pension and damages in tort. He was to be entitled to a pension if he satisfied the statutory criteria. These did not include proof of fault but did include a requirement that his injury was due to something suffered by him which was attributable to service in the armed forces of the Crown. If its attribution was disputed, the issue was to be determined by a Tribunal. The serviceman was given the benefit of a presumption in his favour; the burden was on the Crown to show that the subject-matter of the serviceman's complaint was not attributable to service.
95. If the serviceman brought proceedings against the Crown for damages, the question at once arose whether his injury was sustained in circumstances which qualified him for a pension, for if it was the Crown was not liable in damages. Sometimes the Secretary of State had already conceded, or the Tribunal had already found, that whatever the serviceman claimed to be the cause of his injury was attributable to service in the armed forces of the Crown. If so he would grant a certificate to that effect and the action would be struck out on the ground that it disclosed no cause of action.
96. In such circumstances the Secretary of State had no discretion whether to grant or withhold a certificate. He was called on to certify an existing state of facts which prevented the proceedings from having any chance of success. It was his duty as a public servant to ascertain the facts and certify or not accordingly.
97. The position was much the same where the question was still an open one. The Secretary of State had to decide whether he was content to treat whatever the serviceman claimed to be cause of his injury as attributable to service. If the serviceman made a claim to a pension, the Secretary of State had to make up his mind whether to accept the burden of challenging the attribution to service or concede it. He had to make the same decision if the serviceman chose instead to bring proceedings for damages. It was his duty to ascertain the facts and decide, on departmental advice, whether he could properly dispute the attribution to service. If not, he was bound to certify the fact. He had no discretion to withhold a certificate unless, of course, the circumstances made it unnecessary to issue one.
98. If the Secretary of State issued a certificate, he concluded the question of attribution against himself before the Tribunal. The civil proceedings brought by the serviceman also became unsustainable; but this was the result of the facts certified, not of the exercise of any discretion on the part of the Secretary of State. The certificate did not deprive the serviceman of a pre-existing legal right. He had none, save in the narrow sense that he could issue a writ and formulate a claim; but the claim would be sustainable only by suppressing a relevant fact. If the cause of his injuries was something suffered by him which was attributable to service in the armed forces of the Crown, the Secretary of State was duty bound to certify the fact. In those circumstances, as any competent lawyer would have to advise, the Crown was not liable.
99. The function of the certificate was the same in both cases. It avoided the waste of time and money involved in pursuing civil proceedings against the Crown where the Crown was not liable; and it protected the serviceman from the risk that the Secretary of State might adopt one stance to defeat his claim to damages and another to defeat his claim to a pension. Once the function of the certificate is understood, it is plain that it did not operate as a procedural bar to prevent the serviceman from having his civil right judicially determined. The Secretary of State merely certified that he would treat whatever the serviceman claimed was the cause of his injury as attributable to service for the purpose of a pension, and the Act provided that, if he did so, the Crown was to retain its immunity from civil liability.
100. Section 10 of the Act has since been repealed by the Crown Proceedings (Armed Forces) Act 1987, but for understandable and legitimate reasons the relevant provisions are not retrospective. The civil liability of the Crown in tort has thus been progressively enlarged, but not to such an extent that Mr Matthews has a civil right to damages.
101. This is sufficient to decide the case without reference to other case law of the Strasbourg court. I do, however, wish to refer briefly to the decision of the court in Fogarty v United Kingdom (2001) 34 EHRR 302, because the judge saw no relevant distinction between that case and the present.
102. The case concerned proceedings brought by a private individual against the United States. The plaintiff was advised that the United States was entitled to state immunity, and that once it was properly asserted there was no means by which the courts of the United Kingdom could accept jurisdiction to entertain her claim. The United States declined to waive its immunity. The Strasbourg court held that the immunity of the United States was a procedural bar, largely it seems because the plaintiff was entitled to issue a writ, and the proceedings could only be struck out if the United States subsequently confirmed, as it did, that it did not consent to the jurisdiction. Accordingly article 6(1) applied; but it was not infringed because the limitation on the plaintiff's access to the court was in accordance with customary international law and accordingly had a legitimate aim.
103. I do not, with respect, find that reasoning convincing. It was obviously necessary for the Strasbourg court to satisfy itself that the immunity accorded to the United States was in conformity with international law; contracting states cannot be permitted to circumvent the requirements of article 6(1) by adopting idiosyncratic rules of state immunity. But once the court accepted that the immunity claimed by the United States was in conformity with generally accepted norms of international law, I consider that the better course would have been to hold that the case fell outside article 6(1) altogether.
104. This was the approach adopted by the House in Holland v Lampen-Wolfe  1 WLR 1573. In that case I explained that article 6(1) requires contracting states to maintain fair and public judicial processes and forbids them to deny individuals access for the determination of their civil rights. It presupposes that the contracting states have the powers of adjudication necessary to determine the issues in dispute. But it does not confer on contracting states adjudicative powers which they do not possess. State immunity is a creature of customary international law; its existence was confirmed by the European Convention on State Immunity (1972) (Cmnd 5081). It is not a self-imposed restriction on the jurisdiction of its courts which the United Kingdom has chosen to adopt. It is a limitation imposed from without upon the sovereignty of the United Kingdom itself. It derives from the equality of sovereign states, and from the fact that the adjudication of disputes is an exercise of sovereign power: par in parem non habet imperium.
105. The immunity in that case belonged to the United States, which had not waived it. The United States is not a party to the European Convention on Human Rights, which derives its binding force from the consent of the contracting states. The United Kingdom could not, by its own act of acceding to the European Convention, obtain a power of adjudication over the United States without its consent which international law denies it.
106. Although that case was cited to the Strasbourg court in Fogarty, and the United Kingdom presented an argument on these lines, there is no reference to it in the judgment of the Strasbourg court. It contented itself by rejected the contention that state immunity is a rule of substantive law and not a procedural bar or exclusionary rule. For my part I do not think that this distinction is helpful or even relevant when what falls to be decided is a prior question: whether the individual's inability to pursue his claim in the national courts derives from an absence of sovereign adjudicative power in the state itself.
107. For these reasons, and also for the reasons given by each of your Lordships, which I have had the advantage of reading in draft and with which I agree, I would dismiss the appeal.LORD WALKER OF GESTINGTHORPE
108. The claimant, Mr Alan Matthews, was born in 1938. He served in the Royal Navy between 1955 and 1968. By the end of his service he held the rank of Leading Ordnance Electrical Mechanic. He served aboard several warships and his duties required him to carry out electrical maintenance and repairs throughout the ships, including their boiler rooms. He claims that in carrying out this work (both at sea and during refits in dock) he often came into contact with asbestos lagging of boilers and pipes, and he was exposed to asbestos fibres and dust in the air. He claims that he has, as a result of his exposure to asbestos, developed pleural plaques and bilateral diffuse pleural fibrosis. These conditions are troublesome but not in themselves life-threatening. They probably do not at present entitle Mr Matthews to a disability pension. Mr Matthews is apprehensive that he may in the future develop some much more serious condition. Although the armed forces of the Crown were involved, at different times between 1955 and 1968, in various conflicts and counter-insurgency operations, neither side has suggested that Mr Matthews' disabilities are in any way attributable to warlike operations.
109. Mr Matthews commenced proceedings against the Ministry of Defence on 22 March 2001. In his claim form he claimed damages not exceeding £50,000, but indicated that the claim should be dealt with in the High Court because it raised human rights issues. In its defence the Ministry of Defence stated that it had had only three days' notice of the claim, which related to matters going back more than 40 years, and had not yet been investigated. The defence contended that there were no reasonable grounds for bringing the claim and referred specifically to section 10 of the Crown Proceedings Act 1947 ("the 1947 Act") and the Ministry's intention to apply for a certificate from the Secretary of State.
110. On 11 March 2002 the Parliamentary Under-Secretary of State at the Ministry of Defence, on behalf of the Secretary of State, signed a certificate in the following form:
111. The certificate was given after some preliminary issues had been heard and decided by Keith J. The most important issue was whether section 10 of the 1947 Act prima facie infringed Mr Matthews' rights under article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). On 22 January 2002 Keith J held that article 6(1) was infringed. On 29 May 2002 the Court of Appeal (Lord Phillips of Worth Matravers MR, Mummery and Hale LJJ) allowed the Ministry's appeal from Keith J, with the result that Mr Matthews' action was dismissed. Mr Matthews appeals to your Lordships' House, with the permission of the Court of Appeal, on a single issue which was one of several issues before the courts below.
The 1947 Act and the 1987 Act
112. In order to explain the way in which the issue has arisen it is necessary to summarise the historical background to the 1947 Act, the relevant provisions of the 1947 Act, and the effect of the Crown Proceedings (Armed Forces) Act 1987 ("the 1987 Act"). Before the coming into force of the 1947 Act it was not possible to sue the Crown in tort, nor could a senior official or officer be sued for wrongs committed by his subordinates. The actual wrongdoer (if identifiable) could be sued, and if an individual Crown servant was sued the Crown would in practice satisfy any judgment awarded against him. Indeed if the wrongdoer could not be identified the Treasury Solicitor would supply the name of a nominal defendant to be sued. But your Lordships' House disapproved of that practice in Adams v Naylor  AC 543, and it was discontinued with the enactment of the 1947 Act (which Lord Simonds referred to in Adams v Naylor, at p 553, as long overdue). My noble and learned friend Lord Bingham of Cornhill, whose speech I have had the advantage of reading in draft, has given a full and illuminating account of the legislative history of the 1947 Act.
113. From 1919 a serviceman injured in the course of war service was entitled to a disability pension, and the widows of servicemen killed on war service were also entitled to pensions. Later the scope of these entitlements was widened to include disability or death caused by injury attributable to any service in the armed forces (whether or not it was war service). Very detailed provisions were made in a series of Royal Warrants and, later, Orders in Council. The instrument in force at the time when Mr Matthews' disability manifested itself was the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983 ("the 1983 Order") referred to in the official certificate. A general feature of the successive schemes was that entitlement to a pension did not depend on proof of fault against the Crown or any Crown servant, nor did a disabled serviceman or widow generally have to discharge any onus of proving the requisite causal connection with service (or war service). The apparent benevolence of this provision was no doubt called for because of the very different view which was formerly taken as to public interest immunity (then called Crown privilege) and the resulting difficulty in obtaining documentary evidence to support any claim against the Crown.
114. The 1947 Act made far-reaching changes, both substantive and procedural, in the Crown's liability to be sued. Part I (headed "Substantive Law") contained 12 sections (of which sections 5 to 9 inclusive have since been repealed). Section 1 provides for the Crown to be sued as of right (rather than by a petition of right sanctioned by Royal fiat). Section 2(1) and (2) provides:
Section 2(5) excludes Crown liability for the acts or omissions of any person discharging responsibilities of a judicial nature. Section 4 applies to the Crown the general statutory provisions as to indemnity, contribution and contributory negligence. Section 9 (repealed and replaced by the Post Office Act 1969) made special provision for postal and telephone services, consisting of a general exclusion of liability in tort subject to a limited and conditional liability in respect of registered inland post.
115. Section 10 of the 1947 Act (as amended by orders made in 1953, 1964 and 1968 as to transfers of ministerial functions) must be set out in full:
(a) that a person was or was not on any particular