Matthews (Appellant) v. Ministry of Defence (Respondents)
116. It will be necessary to come back to sections 2 and 10 which are considered in detail in the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Hope of Craighead. But it is important to note at once that the sections as a whole have the effect of removing, to a large extent but not to an unlimited extent, a general pre-existing immunity expressed in the ancient maxim that the King can do no wrong. The 1947 Act did not (in any way that is now material) spell out the content of the Crown's duties in the field of tort law. In particular, it left untouched the principle that in battlefield conditions (and because of the exigencies of battle) the common law does not impose on any soldier a duty of care towards his fellow soldiers: see Mulcahy v Ministry of Defence  QB 732. That principle had ancient origins (partly shared with the origins of the doctrine of common employment) but was largely overshadowed, until the 1987 Act, by the wider protection which the Crown enjoyed, first under the common law immunity and then under section 10 of the 1947 Act.117.
Mulcahy v Ministry of Defence concerned a claim arising out of injuries suffered in 1991 during the Gulf Conflict (that is, after the repeal of section 10 of the 1947 Act by the 1987 Act) by a gunner manning a heavy howitzer at a location in Saudi Arabia. The case shows that the practical effect of section 10 (in terms of how far it protected the Crown from claims by injured servicemen which might otherwise have been permitted by section 2) was in relation to events occurring otherwise than in battle conditions. It has been suggested (by Chadwick LJ in Derry v Ministry of Defence  PIQR P204, P213) that the legislative aim of section 10 was to be found in the need for servicemen to be exposed, even in peacetime, to stressful and sometimes dangerous training in order to prepare them for the demands of active service. But plainly section 10 is expressed in much wider terms than those.
118. In practice, the Secretary of State issues a certificate under section 10 in any case in which he is satisfied that the statutory conditions are met, and in which a certificate would serve a useful purpose. By that last expression I do not mean to suggest that the Secretary of State has any wide discretion. In some cases a certificate is not issued, although the conditions are obviously met, simply because there is no need to. That will be the case where an injured serviceman is not seeking to make a claim for damages, and his entitlement to a pension is not in dispute.
119. The 1987 Act repealed section 10 of the 1947 Act except in relation to anything suffered by a person in consequence of an act or omission before the passing of the 1987 Act (which was on 15 May 1987). The exception (that is, the non-retrospective nature of the repeal) is of crucial importance to Mr Matthews since his exposure to asbestos ended in 1968 at the latest. Section 2 of the 1987 Act empowers the Secretary of State by order to revive the effect of section 10 of the 1947 Act (either generally or for specified purposes) but only in the circumstances described in section 2(2) (that is if it is necessary or expedient because of imminent national danger, any great emergency, or for the purposes of warlike operations overseas).
The judgments below
120. The issues between the parties have progressively narrowed in the course of the litigation. Before Keith J there was an issue on retrospectivity of the Human Rights Act 1998 which the Ministry conceded. There was an issue on article 2 of the Convention (the right to life) on which Keith J found it unnecessary to rule, and which Mr Matthews did not pursue before the Court of Appeal. He did in the Court of Appeal raise a point on article 1 of the First Protocol (protection of property) but that has not been pursued in your Lordships' House. In both lower courts there was an issue (referred to as the state service issue, and involving consideration of the decision of the European Court of Human Rights in Pellegrin v France (1999) 31 EHRR 651) but that too has not been pursued in your Lordships' House. That leaves the only issue argued before your Lordships, which has been referred to as the procedural bar issue. It is common ground that if Mr Matthews succeeds on that issue, section 3 of the Human Rights Act 1998 cannot assist the Ministry and a declaration of incompatibility must follow.
121. The procedural bar issue is most easily identified by referring to two very well-known principles of the Strasbourg jurisprudence on article 6 (1), the relevant part of which is in the following terms:
On the one hand the composite rights conferred by article 6(1) necessarily involve a right of access to a court. The right of access to a court is not however absolute. It may be made subject to procedural restrictions, but these must not so restrict or reduce the litigant's right of access as to impair the essence of the right (in other words, the restrictions must satisfy the test of proportionality): Golder v United Kingdom (1975) 1 EHRR 524, 535 - 537, paras 35-38; Stubbings v United Kingdom (1996) 23 EHRR 213, 233, para 48. On the other hand a litigant's right of access to the court for the determination of his civil rights does not guarantee any particular content of those rights: James v United Kingdom (1986) 8 EHRR 123, 157 -158, para 81; Powell and Rayner v United Kingdom (1990) 12 EHRR 355, 366, para 36. These citations could be multiplied but it is unnecessary to do so.
122. It is the tension between these two general principles (and apparently conflicting views expressed at Strasbourg as to how the tension should be resolved) which have shaped the arguments presented to the lower courts and to your Lordships' House. Should section 10 be classified as a substantive element of the national law of tort, and so beyond the reach of article 6(1)? Or should it be classified as a procedural bar, which if it is to be upheld must satisfy the test of proportionality (as explained by Lord Clyde in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69, 80, and Lord Steyn in R (Daly) v Secretary of State for the Home Department  2 AC 532, 547, para 27)?
123. At first instance Keith J saw the issue as turning on whether the section 10 certificate when issued had the effect of extinguishing, not only the claimant's right to sue for damages, but also what the judge called the claimant's primary right arising from the Crown's duty of care. Keith J said (para 21):
124. Keith J held that that was the correct analysis. He relied particularly on two judgments of the European Court of Human Rights, in Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249 and Fogarty v United Kingdom (2001) 34 EHRR 302. The former case was concerned with contractors in Northern Ireland who complained that their tenders had been rejected on discriminatory grounds, in breach of the Fair Employment (Northern Ireland) Act 1976. Section 42 of that Act disapplied the Act in relation to anything done for the purpose of safeguarding national security or protecting public safety or public order, and it provided for a certificate of the Secretary of State to be conclusive as to that matter. The latter case concerned a claim under the Sex Discrimination Act 1975 made by an employee at the United States embassy in London, in respect of which the United States government successfully claimed state immunity. In each case the European Court of Human Rights held that article 6(1) was engaged. In Fogarty, but not in Tinnelly, the procedural bar was held to meet the requirements of proportionality and to be justified. The judge saw no relevant distinction between Fogarty and the present case.
125. Keith J also referred to three earlier cases directly concerned with section 10 of the 1947 Act, in which the European Commission of Human Rights had held that claims were inadmissible. These are Ketterick v United Kingdom (1982) 5 EHRR 465, Pinder v United Kingdom (1984) 7 EHRR 464 and Dyer v United Kingdom (1984) 39 D & R 246. He found those cases unhelpful since the Commission had not addressed what he saw as the essential distinction between the claimant's primary (substantive) right arising from the Crown's duty of care, and his secondary (procedural) disability as to bringing an action ("disability" here being used as the jural correlative of the Ministry's immunity from suit).
126. The Court of Appeal did not accept the judge's reasoning in the passage quoted above. It concluded that the effect of section 10 was substantive and not procedural. It regarded the judge's reliance on Fogarty as mistaken, stating (in the judgment of the court handed down by the Master of the Rolls, at p 2639, para 61):
Mr Gordon QC (for Mr Matthews) has vigorously criticised this conclusion as ignoring a clear principle established by Fogarty and applicable to this case.
Substantive and Procedural Bars
127. The distinction between substantive and procedural bars to a judicial remedy has often been referred to in the Strasbourg jurisprudence on article 6(1), but the cases do not speak with a single clear voice. That is hardly surprising. The distinction, although easy to grasp in extreme cases, becomes much more debatable close to the borderline, especially as different legal systems draw the line in different places (see Dicey and Morris, The Conflict of Laws, 13th ed (2000), pp 157-158, paras 7-002 to 7-004).
128. The most obvious examples of purely procedural bars are those which have no connection with the substance of a would-be litigant's claim (in other words, his cause of action). Exceptionally a claimant may have to provide security for costs (even at first instance) in order to be able to pursue his claim. Still more exceptionally he may have to obtain the court's permission to commence or continue proceedings, because he is a vexatious litigant, or is in contempt of court through disobedience to an earlier order, or is subject to some comparable disability. Such restrictions on the prosecution of a claim have nothing to do with the material facts which together constitute the claimant's cause of action. Bars arising from statutes of limitation are also generally regarded as procedural, especially as they have to be pleaded, but there are many exceptions and qualifications to that general principle (see Dicey and Morris, p 172, para 7-040). Bars arising from a defendant's right to invoke state or diplomatic immunity are procedural in the sense that the immunity may be waived (and is sometimes waived inadvertently). But a claimant such as the ex-employee in Fogarty must be taken to be aware from the outset that she is making a claim against a sovereign state which may decide not to waive its immunity. Unless her cause of action is described at a high level of abstraction the material facts will include the fact that her claim for victimisation is brought against a former employer which is (absent a waiver) entitled to state immunity.
129. Conversely there are some substantive rules of law which, because they can be described as conferring immunity on a particular class of potential defendants, may be perceived as objectionable restrictions on a claimant's access to the court, even though they cannot fairly be described as procedural bars. The word "immunity" is by itself enough to suggest some more or less arbitrary limitation on a claimant's rights. That was most strikingly demonstrated by the controversial decision of the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245, from which the Court has significantly withdrawn in Z v United Kingdom (2001) 34 EHRR 97.
The Strasbourg Jurisprudence
130. I have already referred to several of the most important Strasbourg cases, but it is useful to see how two contrasting themes have developed since the seminal Golder decision in 1975. Some cases emphasise the importance of avoiding any arbitrary or disproportionate restriction on a litigant's access to the court, whether or not the restriction should be classified as procedural in nature. Others attach importance to the distinction between substance and procedure.
131. The first case to note is Ashingdane v United Kingdom (1983) 6 EHRR 69 (the Commission) (1985) 7 EHRR 528 (the Court). The applicant complained of his detention in a secure special hospital. His access to court had been restricted by section 141 of the Mental Health Act 1959 (now replaced, with significant amendments, by section 139 of the Mental Health Act 1983). Section 141 (1) imposed substantive restrictions on his rights of action (requiring bad faith or negligence) and subsection (2) imposed a procedural restriction (the need for the Court's permission for the commencement of proceedings). The Commission (at p 74, para 93) agreed with the parties that
But the Commission considered that the restrictions were not arbitrary or unreasonable, being intended to protect hospital staff from ill-founded or vexatious litigation. The Court (at pp 547 - 548, paras 58 and 59) took a similar view.
132. In Pinder v United Kingdom (1984) 7 EHRR 464 (from which Ketterick and Dyer are not significantly different) the Commission took the view (at p 465, para 5) that section 10 of the 1947 Act brought about the substitution of a no-fault system of pension entitlement for the right to sue for damages, and that that removed the claimant's civil right:
However the Commission then (at p 466, para 7) referred to its report in Ashingdane and stated,
133. The Commission held that section 10 was not arbitrary or disproportionate (at p 466, para 9):
The Commission's report also contains, at p 468, paras 18-20, a passage on the 'levelling-down' implications of no-fault schemes which has been relied on by Mr Pannick QC (for the Ministry).134.
Powell and Rayner v United Kingdom (1990) 12 EHRR 355 was concerned with the effect of section 76(1) of the Civil Aviation Act 1982 on persons complaining of noise from aircraft travelling to and from Heathrow Airport. Section 76(1) excludes liability for any action in trespass or nuisance so long as the height of the aircraft was reasonable in all the circumstances, and its flight was not in breach of the provisions of the Act or any order made under it. In unanimously rejecting the claimants' claim under article 6(1) the European Court of Human Rights simply relied on the fact that the applicants had no substantive right to relief under English law. It rejected a subsidiary argument that the claimants' residuary entitlement to sue (in cases not excluded by section 76(1)) was illusory.
135. The Court's approach in Fayed v United Kingdom (1994) 18 EHRR 393 was much less straightforward. The Fayed brothers complained that a report by company inspectors had determined their civil rights to reputation and that they had been denied access to the court. They complained particularly of the defence of qualified privilege in relation to a libel action which they had commenced, but not pursued, against a newspaper. The inspectors themselves were also entitled to (at least) qualified privilege. The Court's discussion of the relevant principles contained (at p 429, para 65) the following passage which has been relied on by Mr Gordon:
136. It is hard to tell how far the last sentence of this passage goes. The Court then referred (at p 430, para 67) to the distinction between substantive and procedural restrictions:
The Court did not go any further in attempting to resolve this problem on the ground that it might in any case have had to consider issues of legitimate aim and proportionality for the purposes of article 8 (respect for private life), even though there was in fact no complaint under article 8.
137. In Stubbings v United Kingdom (1996) 23 EHRR 213 and Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249, the Court considered whether restrictions on access to the court (in section 2 of the Limitation Act 1980 and section 42 of the Fair Employment (Northern Ireland) Act 1976 respectively) were justifiable without adverting expressly to the distinction between substantive and procedural bars. In Waite and Kennedy v Germany (1999) 30 EHRR 261, a case concerned with the immunity of the European Space Agency from an action under German employment law, the Commission (at p 272, para 55) described the immunity as merely a procedural bar, and as such requiring justification. The Court took the same view, regarding (at pp 287 - 288, paras 68 and 69) the claimants' access to some unspecified procedures for alternative dispute resolution as being a material factor.
138. The two most recent cases are of particular importance. In Z v United Kingdom (2001) 34 EHRR 97, the Court (by 12 votes to 5) held that there had been no breach of article 6(1) in your Lordships' decision in X v Bedfordshire County Council  2 AC 633 as to the responsibility of a local authority for children who had suffered neglect and abuse over a period of five years while their suffering was known to the local authority (but they were not the subject of any care order). The Court did unanimously find violations of article 3. The whole of the Court's judgment on article 6(1) (at pp132 -139, paras 78 to 104) merits careful study, but its essence appears from the following passages (at pp 136, 137, 138, paras 96, 98 and 100):
In reaching these conclusions the majority of the Court stated in plain terms that its decision in Osman had been based on a misunderstanding of the English law of negligence.
139. Finally there is Fogarty v United Kingdom (2001) 34 EHRR 302. That case was decided about six months after Z and by a constitution of the Court several of whose members had sat (and some of whom had dissented) in Z. In Fogarty the Court repeated verbatim (at p 310, para 25) the passage from Fayed which I have already quoted. It rejected (at pp 310 - 311, para 26) the United Kingdom's argument that because of the operation of state immunity the claimant did not have a substantive right under domestic law. The Court attached importance to the United States' ability to waive (in fact the judgment said "not choose to claim") immunity as indicating that the bar was procedural. Nevertheless the Court concluded (at p 314, para 36) that:
140. In trying to reconcile the inconsistencies in the Strasbourg jurisprudence it might be tempting to suppose that the Court's wide and rather speculative observations in Fayed (which were not its grounds for decision) marked a diversion which proved, in Z, to be a blind alley. But that explanation immediately runs into the difficulty that in Fogarty, six months after Z, the Court (constituted by many of the same judges) chose to repeat, word for word, the observations made in Fayed. The uncertain shadow of Osman still lies over this area of the law.
141. Nevertheless Mr Gordon conceded that in order to succeed on the appeal, he had to satisfy your Lordships that section 10 of the 1947 Act constituted a procedural bar. He equated this task with satisfying your Lordships that Mr Matthews had at the commencement of his proceedings a cause of action against the Ministry of Defence, and that that cause of action was cut off (or defeated) by the Ministry's invocation of the section 10 procedure. He treated this event as indistinguishable from the United States government's invocation, in Fogarty, of the defence of state immunity (to be precise, its decision not to waive state immunity). In each case, Mr Gordon argued, the defendant was relying on a procedural bar to defeat a substantive claim which was valid when proceedings were commenced.
142. In my view Mr Gordon's concession was rightly made. Although there are difficulties in defining the borderline between substance and procedure, the general nature of the distinction is clear in principle, and it is also clear that article 6 is in principle concerned with the procedural fairness and integrity of a state's judicial system, not with the substantive content of its national law. The notion that a state should decide to substitute a no-fault system of compensation for some injuries which might otherwise lead to claims in tort is not inimical to article 6(1), as the Commission said in Dyer (1984) 39 D & R 246 (in a report, specifically dealing with section 10 of the 1947 Act, which has been referred to with approval by the Court in several later cases).
143. In the circumstances the appellant's argument clings ever more closely to the bare fact that Mr Matthews had a cause of action when he issued his claim form, and that his claim could not be struck out as hopeless unless and until the Secretary of State issued a certificate under section 10. But European human rights law is concerned, not with superficial appearances or verbal formulae, but with the realities of the situation (Van Droogenbroeck v Belgium (1982) 4 EHRR 443, 456, para 38; see also R (Anderson) v Secretary of State for the Home Department  3 WLR 1800, 1807, para 13). The appellant's argument does, with respect, ignore the realities of the situation. It is common ground that the Secretary of State does in practice issue a certificate whenever it is (in legal and practical terms) appropriate to do so. He does not have a wide discretion comparable to that of a foreign government in deciding whether or not to waive state immunity (which may be by no means a foregone conclusion, especially in politically sensitive employment cases). The decision whether or not to waive immunity in Fogarty really was a decision about a procedural bar, but I am quite unpersuaded that it provides a parallel with this case. The fact is that section 10 of the 1947 Act did in very many cases before 1987, and still does in cases of latent injury sustained before 1987, substitute a no-fault system of compensation for a claim for damages. This was and is a matter of substantive law and the provision for an official certificate (in order to avoid or at least minimise the risk of inconsistent decisions on causation) does not alter that. Section 10(1)(b), taken on its own, is a provision for the protection of persons with claims against the Ministry. I respectfully agree with Lord Bingham's analysis of the legislative history of the 1947 Act and with the conclusions which he draws from it.