England and Wales Court of Appeal (Civil Division) Decisions

Matthews v Ministry of Defence [2002] EWCA Civ 773 (29th May, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
The Hon. Mr Justice Keith

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th May 2002

Lord Phillips MR

This is the judgment of the Court

Introduction

1. This is an appeal from the judgment of Keith J given on 22 January 2002 [2002] EWHC 13 (QB). It raises the issue of whether s.10 of the Crown Proceedings Act 1947 (‘the 1947 Act’) is compatible with the European Convention on Human Rights. That is an issue of importance to any serviceman or ex-serviceman, such as Mr Matthews the claimant, who seeks to claim damages against the Ministry of Defence in respect of injuries resulting from events that occurred prior to 1987.

The claim

2. Mr Matthews served in the Royal Navy as an electrical mechanic between 1955 and 1968. During this time he served in a total of seven vessels. He alleges that during maintenance at sea and periods of refit in port he had to work in boiler rooms where boilers and pipes were lagged with asbestos, from which asbestos fibres and dust dissipated into the air. He claims that, by reason of his exposure to these fibres and dust, he has developed asbestos related injuries, namely pleural plaques and bilateral diffuse pleural fibrosis. These conditions do not carry with them significant disability, but they can lead to more serious, and indeed life-threatening, illnesses.
3. Mr Matthews alleges that his injury was caused by the negligence and breach of statutory duty of the Ministry of Defence and of fellow servicemen for whose negligence and breach of duty the Ministry is vicariously liable. Mr Matthews learned of the nature of his injury in September 1999 when Dr Halpin, a consultant physician, diagnosed pleural plaques.
4. The Ministry intends, if necessary, to defend Mr Matthews’ claim on the merits. It has, however, taken the preliminary point that it is immune from liability by reason of the provisions of s.10 of the 1947 Act. Mr Matthews contends that it is both possible and necessary to give s.10 an interpretation which leaves his claim unscathed. Alternatively, if this is not possible, he contends that s.10 is incompatible with the Convention. Keith J. rejected the former contention, but upheld the latter. Before describing the issues raised in more detail, it will be helpful to refer to the statutory regime.

The statutory regime

5. Until the 1947 Act the Crown was neither directly nor vicariously liable in tort. If a servant of the Crown was held liable in negligence for an act or omission in the course of his employment, the Crown would normally indemnify that servant, but was not legally bound to do so. This state of affairs was pithily summarised by the statement ‘the King can do no wrong’ – Mulcahy v Minister of Defence [1996] QB 732 at p.740.
6. Away from the field of war there was, prior to 1947, no bar upon one serviceman suing another for negligence in respect of events occurring while on duty. While engaged in warfare, however, no duty of care arose between servicemen – see Mulcahy v Minister of Defence.
7. The 1947 Act brought an end to the Crown’s immunity from liability in tort. Under the general heading ‘Substantive Law’ s.2 provided:

“2. Liability of the Crown in tort

(1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:-

(a) in respect of torts committed by its servants or agents;

(b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer;

and

(c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property;

Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate.”

8. S.10 of the 1947 Act made special provision in relation to members of the armed forces:

“(1) Nothing done or omitted to be done by a member of the armed forces of the Crown while on duty as such shall subject either him or the Crown to liability in tort for causing the death of another person, or for causing personal injury to another person, in so far as the death or personal injury is due to anything suffered by that other person while he is a member of the armed forces of the Crown if-

(a) at the time when that thing is suffered by that other person, he is either on duty as a member of the armed forces of the Crown or is, though not on duty as such, on any land, premises, ship, aircraft or vehicle for the time being used for the purposes of the armed forces of the crown, and

(b) the [Secretary of State] certifies that his suffering that thing has been or will be treated as attributable or service for the purposes of entitlement to an award under the royal Warrant, Order in Council or Order of His Majesty relating to the disablement or death of members of the force of which he is a member:

Provided that this subsection shall not exempt a member of the said forces from liability in tort in any case in which the court is satisfied that the act or omission was not connected with the execution of his duties as a member of those forces.

(2) No proceedings in tort shall lie against the Crown for death or personal injury due to anything suffered by a member of the armed forces of the Crown if-

(a) that thing is suffered by him in consequence of the nature or condition of any such land, premises, ship, aircraft or vehicle as aforesaid, or in consequence of the nature or condition of any equipment or supplies used for the purposes of those forces; and

(b) [the Secretary of State] certifies as mentioned in the preceding subsection:

nor shall any act or omission of an officer of the Crown subject him to liability in tort for death or personal injury, in so far as the death or personal injury is due to anything suffered by a member of the armed forces of the Crown being a thing as to which the conditions aforesaid are satisfied.

(3) ……a Secretary of State, if satisfied that it is the fact:-

(a) that a person was or was not on any particular occasion on duty as a member of the armed forces of the Crown; or

(b) that at any particular time any land, premises, ship, aircraft, vehicle, equipment or supplies was or was not, or were or were not, used for the purposes of the said forces;

may issue a certificate certifying that to be the fact; and any such certificate shall, for the purpose of this section, be conclusive as to the fact which it certifies.”

9. S.10 of the 1947 Act was repealed by the Crown Proceedings (Armed Forces) Act 1987 (the 1987 Act), but only prospectively. Thus, s.1 provided:

“Subject to section 2 below, section 10 of the Crown Proceedings Act 1947 (exclusions from liability in tort in cases involving the armed forces) shall cease to have effect except in relation to anything suffered by a person in consequence of an act or omission committed before the date on which this Act is passed.”

10. S.2 of the 1987 Act gave the Secretary of State power to revive the effect of s.10 of the 1947 Act, but only where necessary or expedient:

“(a) by reason of any imminent national danger or of any great emergency that has arisen; or

(b) for the purposes of any warlike operations in any part of the world outside the United Kingdom or of any other operations which are or are to be carried out in connection with the warlike activity of any persons in any such part of the world.”

The certificate

11. At the time of the hearing before Keith J. the Secretary of State had not issued a certificate under s.10(1)(b) of the 1947 Act. On 11 March 2002 he did so, in the following terms:

“In so far as the personal injury of former Leading Ordnance Electrical Mechanic Alan Robert Matthews (service number D/M947091) is due to anything suffered by him as a result of exposure to asbestos during his service in the Royal Navy between 29 March 1955 to 15 March 1968, I hereby certify that his suffering that thing will be treated as attributable to service for the purposes of entitlement to an award under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 relating to the disablement or death of members of the service of which he was a member.”

12. Mr Matthews has not yet applied for a pension under the 1983 Order. We understand that his medical condition would not be considered to constitute sufficient ‘disablement’ to entitle him to a pension.

The impact of the Convention

Article 2

13. Before the Judge, Mr Robert Weir for Mr Matthews, advanced an argument based on Article 2 of the Convention. The Judge recorded this argument at paragraph [47] of his judgment as follows:

“Art 2(1) of the Convention provides:

“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

In brief, the argument developed on behalf of the Claimant was as follows. Exposure to asbestos can result in the onset of diseases, such as mesothelioma, which can prove fatal. Art. 2(1) imposes a positive duty on the State to take appropriate steps to safeguard life. As an organ of the State, the Ministry was therefore obliged to take appropriate steps to protect the Claimant from losing his life as a result of exposure to asbestos while he worked on naval ships in circumstances where the failure to take those steps amounted to negligence or breach of statutory duty. As a result of the operation of section 10 and the proposed issue by the Secretary of State of the appropriate certificate, the Claimant’s conventional remedy for this alleged infringement of his right to life under Art. 2(1) has been removed and replaced by one which (for the reasons given earlier) is wholly inadequate.”

14. The Judge did not find it necessary to deal with this argument. Mr Gordon did not revive it before us. We are inclined to think that he was right not to. We cannot see how s.10 of the 1947 Act could infringe Mr Matthews’ right to life under Article 2. If the events of which he complains infringed Article 2, then the effect of s.10 might be to deny him an adequate remedy. In that event, however, it seems to us that it is Article 13 of the Convention which would be infringed as a result of s.10, not Article 2.

Article 6

15. Article 6(1) of the Convention provides:

“In the determination of his civil rights and obligations …everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

16. Mr Gordon has made the following submissions in relation to Article 6. Mr Matthews asserts a civil right in the form of his entitlement to compensation for the injury caused by the Ministry. If s.10 of the 1947 Act prevents him from putting forward his claim it thereby infringes Article 6 and is incompatible with it. In that event he is entitled to a declaration of incompatibility. His preferred submission is, however, that, as s.3 of the Human Rights Act 1998 (‘HRA’) requires, it is possible to interpret s.10 of the 1947 Act in a manner that is compatible with the Convention. Such interpretation will enable Mr Matthews to pursue his claim.
17. For the Secretary of State Mr Pannick QC has submitted that the Judge was right to rule that it was impossible to interpret s.10 of the 1947 Act in such a way as to permit Mr Matthews to pursue his claim. He has further submitted that there is no incompatibility between s.10 and Article 6 for the following reasons:

i) Article 6 does not apply to claims by servicemen. This gives rise to what the Judge has described as ‘the State service issue’.

ii) Mr Matthews has no ‘civil right’ which entitles him to a Court hearing under Article 6. This gives rise to what the Judge has described as ‘the procedural bar issue’.

iii) Mr Matthews is seeking to use the HRA to create a cause of action based on events that occurred before the Act came into force. This is not legitimate. This gives rise to what the Judge has described as ‘the retrospectivity issue’.

iv) If s.10 restricts rights under Article 6, it does so in a manner which serves a legitimate aim and is proportional. This gives rise to what the Judge has described as ‘the proportionality issue’.

We propose to consider these issues in a different order from that adopted by the Judge.

The State service issue

18. Strasbourg jurisprudence has long recognised that certain claims by servants of the State are not properly to be considered as claims asserting ‘civil rights’ and that, in consequence, Article 6 does not apply to them. This jurisprudence reflects law and procedures of Member States which are not familiar to common law jurisdictions. Certainly we have found ourselves in unfamiliar territory when considering this issue.
19. Mr Pannick’s submissions have been founded on two decisions of the Strasbourg Court, Pellegrin v France (2001) 31 EHRR at p.26 and R v Belgium (27 February 2001) (Application no. 33919/96). He submitted that these cases established that a claim against the State for personal injuries in tort, if brought by a serving member of the armed forces, was not a claim in respect of a civil right to which Article 6 applied.
20. In Pellegrin the applicant was a senior technical adviser employed by the French Ministry of Co-operation and Development. His name was removed from the list of the establishment on psychiatric grounds. He challenged this decision in the Administrative Court system. This deals with disputes of public law and is to be distinguished from the French court system which deals with private law disputes. These proceedings were so dilatory that he complained to the Strasbourg Court that his rights under Article 6 were infringed. The Government contended that Article 6 did not apply because ‘the dispute manifestly concerned termination of the applicant’s employment in the civil service’.
21. The Court observed [59] that:

“….in the law of many Member States of the Council of Europe there is a basic distinction between civil servants and employees governed by private law. This has led the Court to hold that ‘disputes relating to the recruitment, careers and termination of service of civil servants are as a general rule outside the scope of Article 6(1)’.”

22. The Court went on to describe a number of cases in which there had been difficulty in deciding whether, on the facts, the application fell within the category of cases to which Article 6 did not apply. The test appears to have been whether the decision complained of fell within the discretionary powers of the State or was one that related to an essentially economic right that was contractual in nature. The Court commented that the case law gave rise to uncertainty [60]:

“The criterion relating to the economic nature of a dispute, for its part, leaves scope for a degree of arbitrariness, since a decision concerning the ‘recruitment’, ‘career’ or ‘termination of service’ of a civil servant nearly always has pecuniary consequences. This being so, it is difficult to draw a distinction between proceedings of ‘purely’ or ‘essentially’ economic interest and other kinds of proceedings.”

23. After observing that the basis on which civil servants provided their services varied in different Member States, the Court continued:

“3. New criterion to be applied

64. To that end, in order to determine the applicability of Article 6(1) to public servants, whether established or employed under contract, the court considers that it should adopt a functional criterion based on the nature of the employee’s duties and responsibilities. In so doing, it must adopt a restrictive interpretation, in accordance with the object and purpose of the convention, of the exceptions to the safeguards afforded by Article 6(1).

65. The Court notes that in each country’s public service certain posts involve responsibilities in the general interest or participation in the exercise of powers conferred by public law. The holders of such posts thus wield a portion of the State’s sovereign power. The State therefore has a legitimate interest in requiring of these servants a special bond of trust and loyalty. On the other hand, in respect of other posts which do not have this “public administration” aspect, there is no such interest.

66. The Court therefore rules that the only disputes excluded from the scope of Article 6(1) of the Convention are those which are raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depository of public authority responsible for protecting the general interests of the State or other public authorities. A manifest example of such activities is provided by the armed forces and the police. In practice, the Court will ascertain, in each case, whether the applicant’s post entails – in the light of the nature of the duties and responsibilities appertaining to it- direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. In so doing, the Court will have regard, for guidance, to the categories of activities and posts listed by the European Commission in its Communication of 18 March 1988 and by the Court of Justice of the European Communities.

67. Accordingly, no disputes between administrative authorities and employees who occupy posts involving participation in the exercise of powers conferred by public law attract the application of Article 6(1) since the Court intends to establish a functional criterion. Disputes concerning pensions all come within the ambit of Article 6(1) because on retirement employees break the special bond between themselves and the authorities; they, and a fortiori those entitled through them, then find themselves in a situation exactly comparable to that of employees under private law in that the special relationship of trust and loyalty binding them to the State has ceased to exist and the employee can no longer wield a portion of the State’s sovereign power.”

24. Pellegrin was a decision of the Grand Chamber, and in a concurring opinion [O-12] one member of the Court described it as a ‘landmark judgment’. We have, however, had some difficulty in distinguishing the precise nature of the landmark.
25. Keith J. observed [31]:

“…before the application of the new criterion in Pellegrin is engaged, the claim still has to be one to which the state service exclusion is capable of applying. The state service exclusion was said in Pellegrin to apply “to disputes raised by servants or the State over their conditions of service” [58]. Accordingly, the preliminary question which arises is whether a claim for damages for ill-health arising from harmful conditions at work can be classified as a claim relating to the employee’s conditions of service.”

26. Thus, on the Judge’s reading, Pellegrin was concerned solely with the test of who constituted ‘servants of the State’. The decision left untouched the requirement, if Article 6 were not to apply, that the claim in question should relate to conditions of service. He went on to hold that Mr Matthews’ claim did not ‘relate to his conditions of service’. He observed [34]:

“To put it bluntly, the Claimant’s claim is a claim in tort. It does not become a claim relating to the terms on which he is employed simply because the terms on which he is employed excludes his claim in tort.”

27. The argument advanced below on behalf of the Secretary of State appears to have accepted that the Pellegrin test applied only to disputes relating to the claimant’s conditions of service. Before us, Mr Pannick’s submissions went wider. He submitted that the exception to the application of Article 6 applied to any claim against the State by a person whose functions fell within the Pellegrin criterion. The armed forces were expressly identified in Pellegrin as an example of those who fell within that criterion. Thus the exclusion of Article 6 applied to claims in tort.
28. In support of this submission Mr Pannick referred us to the decision of the Strasbourg Court in R v Belgium. In that case the Court reached its conclusion without the need for an oral hearing. The applicant complained of the fact that it had taken 22 years for him to establish his entitlement to a pension in respect of injuries sustained in the course of military exercises in which he was taking part as a reserve officer. He contended that his rights under Article 6 had been infringed. The Court held that the applicant fell within the Pellegrin criterion in that there was no valid distinction between a soldier serving as a regular and a soldier serving as a reservist. The Court described the claim as one ‘for the payment of a pension in reparation for the lesions suffered during the accomplishment of military obligation’. There was no discussion as to whether this claim was one relating to the claimant’s ‘conditions of service’ or as to whether this was any longer a relevant question, having regard to the decision in Pellegrin.
29. Before us Mr Pannick argued that Keith J’s observation that Mr Matthew’s underlying claim was in tort was irrelevant. Provided that Mr Matthews fell within the Pellegrin criterion any claim that he brought arising from his service fell outside the application of Article 6.
30. In considering this issue it is essential to bear in mind the nature of the claim that Mr Matthews contends he is entitled, pursuant to Article 6, to have decided by a Court. It is not a claim to a service pension. Nor is it a claim that, on true interpretation of s.10 of the 1947 Act, he is entitled to assert a claim in tort. The nature and effect of s.10 of the 1947 Act is the subject of the present proceedings, and there is no suggestion that the present proceedings infringe Article 6. Mr Matthews complains that he has a civil right to recover damages from the Ministry in tort and that, to the extent that s.10 of the 1947 Act precludes him from asserting that right in legal proceedings, Article 6 is infringed.
31. The issue is whether a Member State can preclude servicemen, or any other public servants, from asserting claims against the State in tort, or, if we correctly understand the effect of Mr Pannick’s submissions, any other civil claims arising from events during their period of service, without infringing Article 6. For reasons which will become apparent, it is not necessary for us to resolve this question. Our firm opinion is, however, that the Judge was right in restricting the effect of the decision in Pellegrin to disputes relating to conditions of service. We observe that the Court introduced its explanation of the new criterion with the statement that it was necessary to adopt a restrictive interpretation to exceptions to the safeguards afforded by Article 6. In a supplement to their work on The Law of Human Rights, which covers decisions up to October 2001, Clayton and Tomlinson identify, at pp.76 to 77, seven decisions of the Strasbourg Court in which the criterion in Pellegrin has been applied so as to exclude the application of Article 6. All appear to have related to conditions of employment. The same is true of two further decisions to which we were referred – Frydlender v France (Application No 33221/96 26 June 2001 and Devlin v United Kingdom (Application No 29545/95 30 October 2001). If the test in Pellegrin is of general application, then it is surprising that there is no example of its application in relation to a claim in delict.
32. We were referred to Fogarty v United Kingdom (2002) 34 EHRR 12 in the context of the procedural bar issue. We have noted, however, that the following observation of the Court [28] bears on the present issue:

“The Court recalls that in the above mentioned Pellegrin judgment, it adopted a functional test for the purposes of determining the applicability of Article 6(1) to employment disputes involving public servants, based on the nature of the employee’s duties and responsibilities. An employment dispute is excluded from the scope of Article 6(1) if it concerns a public servant whose duties typify the specific activities of the public service in so far as he or she acts as the depository of public authority responsible for protecting the general interests of the State.”

33. This suggests that the Court consider that the decision in Pellegrin applies only to ‘employment disputes’. We do not believe that the Strasbourg Court intended the Pellegrin criterion to exclude claims in tort from the application of Article 6.

The procedural bar issue

34. This issue is the most critical of the four identified by the Judge. Article 6(1) is essentially concerned with judicial process. Its effects include an entitlement to a fair, public and reasonably prompt hearing in respect of any assertion of an infringement of a civil right. A claim that a civil right has been infringed may involve a seminal question of law of whether the civil right, which the claimant asserts has been infringed, exists at all. English civil procedure is accustomed to resolving such seminal issues as preliminary points of law, before the facts that are alleged to give rise to the infringement of the right are investigated by the Court. Whether a civil right exists is a matter of the substantive law of the Contracting States. If a preliminary issue as to the existence of a civil right is decided against a claimant, there will be a procedural bar to his exploring the facts before the Court. The nature of this procedure does not appear to have been fully appreciated by the Strasbourg Court in Osman v United Kingdom (1999) 29 EHRR 245. The Court has, however, since recognised that this procedure does not infringe Article 6 – Z v United Kingdom (2001) 34 EHRR 3; Reid v UK (Application No 30979 – 27 June 2000).
35. Some statutory rules and regulations are clearly designed to regulate Court procedure. Examples are rules relating to admissibility of evidence, burden of proof and manner of proof. The provision in s.10(3) of the 1947 Act as to the conclusiveness of a certificate issued by the Secretary of State under that sub-section is a further example of such a rule. Such procedural rules are subject to the requirements of Article 6.
36. Other statutory rules, which may preclude a successful claim for infringement of a civil right, do so because they delimit the rights and liabilities that arise under civil law. They are not procedural rules, but rules of substantive law. The Strasbourg Court recognises that Article 6 has no impact on such rules. In James v United Kingdom the provisions of the Leasehold Reform Act 1967, which allowed tenants to buy their freeholds, were attacked before the Strasbourg Court on the ground that they infringed Article 1 of the First Protocol to the Convention. That challenge failed. It was also alleged that Article 6 was infringed because, once the statutory criteria were satisfied, there was no court before which a landlord could challenge a tenant’s right of enfranchisement on the basis of the merits of the individual case. The Court observed [81]:

“Article 6(1) extends only to ‘contestations’ (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; it does not in itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States.

Confirmation of this analysis is to be found in the fact that Article 6(1) does not require that there be a national court with competence to invalidate or override national law.”

37. In some circumstances it is less easy to differentiate between procedural and substantive rules. Rules providing for limitation of actions are procedural and subject to Article 6 – see Stubbings & Others v United Kingdom (1996) 23 EHRR 213. Rules limiting the liability of shipowners under the Merchant Shipping Acts have always been treated as substantive. In Fayed v United Kingdom, a decision to which we shall return, the Court observed [67]:

“It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy.”

38. In the present case Mr Gordon’s primary submission is that s.10 of the 1947 Act is procedural in character. Alternatively he submits that, if it is to be characterised as substantive, it is still subject to the application of Article 6. This, he says, is because the Strasbourg jurisprudence shows that Article 6 will be infringed if the State confers immunity from a civil liability which exists generally on a particular category of persons.
39. Section 10 is not an easy provision to analyse. It is of an unusual, if not unique, character. Before undertaking that exercise, we propose to consider the Strasbourg jurisprudence that bears on this issue.
40. In Ketterick v United Kingdom (1983) 5 EHRR 465 the applicant had been seriously injured while taking part in military training. The Secretary of State issued a certificate under s.10 of the 1947 Act. The applicant complained that this infringed his rights under Article 6. The Commission held that the complaint was ‘manifestly ill founded’. Its reasoning included the following passage:

“The applicant complains that as a consequence of the issue of the Certificate under Section 10 of the Crown Proceedings Act 1947, he is effectively barred from pursuing civil proceedings against the Ministry of Defence for negligence. It is clear from Section 10 of the 1947 Act that the legislature sought to confer on the Crown immunity from liability in tort in respect of members of the armed forces who suffer injuries in the course of their service. However, such immunity only arises if inter alia the Minister of Pensions certifies that his injuries are attributable to service for the purposes of entitlement to an award under the Royal Warrant…. The effect of this provision is that the applicant’s right to sue in tort is effectively extinguished once such a certificate is issued and replaced by a pension entitlement. In the Commission’s view the substitution of a pension entitlement for an action in tort does not in principle give rise to an issue under Art 6(1) of the Convention. Such a system, for example, in the field of workman’s compensation for personal injuries may be found in the legal system of many State Parties to the Convention. These rules are commonly based on the principle that compensation should be independent of the frequently difficult proof of negligence. The Commission notes that the applicant does not allege a violation of Art 6 in so far as access to the courts in respect of his pension rights is concerned. It may therefore be left open whether these rights replacing the eventual tort claims are to be considered as “civil rights” in the sense of Art. 6(1).”

41. It seems to us that the Commission ruled the complaint inadmissible because the effect of s.10 and the issue of the certificate was to alter the applicant’s substantive legal rights, rather than to pose an impediment to his access to the courts to enforce those rights. This decision was considered by the Commission in two similar applications which were determined in identical terms – Pinder v UK (1985) 7 EHRR 464 and Dyer v UK (1985) 7 EHRR 469. It is necessary to quote at length from these decisions.
42. At the outset the Commission posed the following question:

“It is not in dispute between the parties that, in general, the right to compensation for negligence constitutes a ‘civil right’ and therefore the right to bring a civil action for negligence is guaranteed by Art. 6(1). The question, however, arises whether there can be said to be a ‘civil right’ where such a right i.e. a right to compensation for negligence, has been expressly removed by a statutory immunity such as that conferred by s. 10 of the 1947 Act.”

43. After reference to the decision in Ketterick, the Commission continued:

“5. The Commission reaffirms the above view that, the substitution of a pension entitlement for a right to compensation in tort removes the ‘civil right’ to sue for purposes of this provision. It recalls that the concept of ‘civil rights’ is autonomous. Thus, irrespective of whether a right is in domestic law labelled ‘public’, ‘private’, ‘civil’ or something else, it is ultimately for the Convention organs to decide whether it is a ‘civil’ right within the meaning of Art 6(1). However, in the Commission’s view, Art 6(1) does not impose requirements in respect of the nature and scope of the relevant national law governing the ‘right’ in question. Nor does the Commission consider that it is, in principle, competent to determine or review the substantive content of the civil law which ought to obtain in the State Party any more than it could in respect of substantive criminal law. As it has stated in App. No 7151/75: SPORRONG AND LÖNNROTH v SWEDEN Series B:

Whether a right is at all at issue in a particular case depends primarily on the legal system of the State concerned. It is true that the concept of a ‘right’ is itself autonomous to some degree. Thus it is not decisive for the purposes of Art 6(1) that a given privilege or interest which exists in a domestic legal system is not classified or described as a ‘right’ by that system. However, it is clear that the Convention organs could not create by way of interpretation of Art. 6(1) a substantive right which has no legal basis whatsoever in the State concerned. (Commission’s Report, para. 150: see also App. No 8282/78, 21 D&R 109; App No 7598/76 KAPLAN v UNITED KINGDOM 4 E.H.R.R. 64 para 134).

It follows, therefore, that the State does not bear the burden of justifying an immunity from liability which forms part of its civil law with reference to a ‘pressing social need’ as contended by the applicant.

6. On the other hand, the Commission recognises that Art. 6(1) must be read in the light of the rule of law referred to in the preamble, of which the principle whereby a civil claim must be capable of being submitted to a judge, is an integral part (see GOLDER v UNITED KINGDOM 1 EHRR 524 para 35). Were Art 6(1) to be interpreted as enabling a State Party 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, without any possibility of control by the Convention organs, there would exist no protection against the danger of arbitrary power (see mutatis mutandis GOLDER judgment, para 35).

7. In recognition of these principles the Commission has indicated that the jurisdiction of the courts cannot be removed altogether or limited beyond a certain point (KAPLAN v UNITED KINGDOM, para 162). Similarly, the Commission has emphasised that ‘a real threat to the rule of law could emerge if a state were arbitrarily to remove the jurisdiction of civil courts to determine certain classes of civil action App. No 8225/78 ASHINGDANE v UNITED KINGDOM (1984) 6 E.H.R.R. 69, para 93). These principles apply not only in respect of procedural limitations such as the removal of the jurisdiction of the court, as in the ASHINGDANE case, but also in respect of a substantive immunity from liability as in the present case. The question, therefore, arises in the present context, whether s.10 of the 1947 Act constitutes an arbitrary limitation of the applicant’s substantive civil claims.”

44. The Commission went on to hold that the substitution of a right to a pension, irrespective of fault, for a right to claim in negligence was legitimate. It then considered a related complaint that Article 14, in conjunction with Article 6, was infringed because s.10 discriminated against servicemen. This complaint was also held to be manifestly ill-founded because the differentiation between servicemen and others had an objective and reasonable justification and was proportional.
45. The observations of the Commission, if correct, indicate that s.10 of the 1947 Act is a substantive, rather than procedural, provision but that the provision would nonetheless have infringed Article 6 if it constituted an arbitrary limitation on the applicant’s civil law rights. Mr Pannick submitted that the latter proposition was wrong and that we should so find. In order to consider that submission it is necessary to consider a number of further decisions relied upon by Mr Gordon.
46. In Fayed v United Kingdom Mr Fayed complained of the defence of qualified privilege against liability in defamation of Inspectors appointed by the Government to investigate the take-over of Harrods. This prevented him from challenging in Court the accuracy of their Report. He contended that this infringed his right of access to a Court under Article 6 and his right to an effective remedy under Article 13 for the breach of his right to respect for family life under Article 8. The Government contended that there was no infringement of Article 6 because qualified privilege was a defence under the substantive law of defamation. The Court held that it was unnecessary to resolve this question because the same issues arose in respect of the alleged breach of Article 6 and of Article 8. It nonetheless repeated, with approval, the statement of the Commission in Pinder and Dyer that it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6(1) if a State could ‘confer immunities from civil liability on large groups or categories of persons’.
47. With the exception of Osman, as to which see our comments at paragraph 34 above, we have not been referred to any decision where the Strasbourg Court has held that a rule of substantive law conferring immunity from liability on a category of persons infringes Article 6(1). In so saying we distinguish between immunity from liability, which is substantive, and immunity from suit, which is procedural, although sometimes it is not easy to distinguish between the two – see, for instance, Ashingdane v United Kingdom (1985) 7 EHRR 528 at paragraph 54.
48. In Waite and Kennedy v Germany (1999) 30 EHRR the Commission and the Court held that a complaint about the immunity of the European Space Agency from suit in the German Courts engaged Article 6(1). In so concluding the Commission observed that the immunity asserted was procedural, not substantive:

“…the rules on immunity from jurisdiction of, inter alia, international organisations prevent claims concerning substantive rights, which exist as such under German law, from being raised and enforced against the privileged persons in German court proceedings, unless they waive their immunity. In these circumstances, it is merely a procedural bar preventing the possibilities of bringing potential claims to court.”

49. The same point was made by the Court in Fogarty v United Kingdom (2001) 34 EHRR 302. In that case the applicant had attempted to bring proceedings against the United States Government before an Industrial Tribunal, claiming discrimination contrary to the Sex Discrimination Act 1975. The United States Government claimed State Immunity under the State Immunity Act 1978 which precluded the Tribunal from entertaining her claim. She complained to the Strasbourg Court that this infringed her rights under Article 6(1). The United Kingdom Government contended that Article 6(1) was not engaged because the applicant had no actionable domestic claim. The Court rejected this contention. It held [26]:

“……the proceedings which the applicant intended to pursue were for damages for a cause of action well known to English law. The Court does not accept the Government’s plea that because of the operation of State immunity she did not have a substantive right under domestic law. It notes 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, as occurred with the first discrimination action brought by the applicant.

The Court is, therefore, satisfied that the grant of immunity is to be seen not as qualifying a substantive right but as a procedural bar, preventing the applicant from bringing her claim before the Industrial Tribunal.”

50. These decisions support the observations of the Commission in Pinder and Dyer insofar as they extend to the conferring of procedural immunities from liability on certain groups. We have concluded that the Commission was wrong to suggest that Article 6(1) could be engaged by a provision of the substantive law of a Member State which provides that certain groups will be under no civil liability in circumstances where others would be under such liability. To conclude otherwise would be to hold that the Convention is capable of rendering unlawful substantive laws of a Member State on the ground that they are discriminatory, notwithstanding that no fundamental right under the Convention is in play. Such a radical conclusion cannot properly be founded on what were no more than observations of the Commission which were not necessary for its decision. It is significant that Article 14 of the Convention, which prohibits discrimination, does so only to the extent that this impacts on ‘the enjoyment of the rights and freedoms set forth in this Convention’.
51. We derive support for this conclusion from the decision of the Strasbourg Court in Powell and Rayner v United Kingdom (1990) 12 EHRR p.355. The applicants lived in the vicinity of Heathrow and were consequently subject to aircraft noise. They could not bring an action in nuisance against the operators of the aircraft by reason of immunities from liability conferred by s.76(1) of the Civil Aviation Act 1982. This section thus conferred on a particular group an immunity from the general law of nuisance. The Commission held the complaint that Article 6(1) was infringed as inadmissible. The Court agreed, observing [36]:

“The applicants’ grievance under Article 6(1) is in essence directed against the limitation of liability set out in section 76(1) of the Civil Aviation Act 1982. Framed in this way their grievance does not bring into play Article 6 or Article 13. As the Commission pointed out in its admissibility decisions, the effect of section 76(1) is to exclude liability in nuisance with regard to the flight of aircraft in certain circumstances, with the result that the applicants cannot claim to have a substantive right under English law to obtain relief for exposure to aircraft noise in those circumstances. To this extent there is no ‘civil right’ recognised under domestic law to attract the application of Article 6(1).”

52. For these reasons we have concluded that the question of whether s.10 of the 1947 Act is procedural or substantive is all important when considering whether it infringes Article 6(1).

Is S.10 of the 1947 Act procedural or substantive?

53. Mr Gordon argued that s.10 was procedural. His argument turned largely on the provision of s.10(1)(b) and 10(2)(b). He submitted that a serviceman in the position of Mr Matthews had a vested cause of action in negligence unless and until the Secretary of State issued a certificate under these sub-sections. The issue of a certificate was a procedural step which precluded the claimant from pursuing the cause of action. Mr Gordon argued that the Secretary of State had an unfettered option as to whether or not to issue a certificate. His case did not, however, turn upon that point.
54. Mr Pannick argued that the effect of s.10 was that a serviceman had no claim against the Crown for injuries sustained in service. In substitute for a claim in negligence, in which fault would have to be proved, a pension was provided without any need to prove fault. It was, and had always been, the practice to issue a certificate whenever a claim fell within the terms of s.10. The issue of the certificate was the mechanism by which the right to claim in negligence was replaced by pension rights. The scheme was not procedural, it was one whereby the substantive right of service claimants to sue in negligence for personal injuries was removed.
55. On this issue Keith J. found in favour of Mr Matthews. He considered that his case was supported by two decisions of the Strasbourg Court and by an analysis of the effect of s.10, which we shall have to consider. We turn first to the two decisions.
56. In Tinnelly & Sons Ltd v United Kingdom (1999) 27 EHRR 249 two contractors in Northern Ireland complained to the Fair Employment Agency that their tenders had been rejected because of what were believed to be the religious belief and political opinions of their employees, thereby infringing the Fair Employment (Northern Ireland) Act 1976. S.42 of that Act provided, however:

“(1) This Act shall not apply to an act done for the purpose of safeguarding national security or of protecting public safety or public order,

(2) A certificate signed by or on behalf of the Secretary of State and certifying that an act specified in the certificate was done for a purpose mentioned in subsection (1) shall be conclusive evidence that it was done for that purpose.”

57. The Secretary of State issued such a certificate. The applicants complained that the effect of this was to prevent their access to the Court to determine whether their rights under the 1976 Act had been infringed. The Government argued that the effect of s.42 was that they had no such rights.
58. The Court rejected this submission, holding that s.42 merely provided a defence to a claim under the 1976 Act. Furthermore, the provision that the certificate of the Secretary of State should be conclusive had the effect of preventing a judicial determination of the merits of the applicants’ complaints that they were the victims of unlawful discrimination. The right guaranteed to an applicant to submit a dispute to a Court or tribunal in order to have a determination of questions of both fact and law could not be displaced by the ipse dixit of the executive [77].
59. We do not find that this decision has much bearing on the question of whether the effect of the provisions of s.10(1) and 10(2) of the 1947 Act are procedural or substantive. Nor is the certificate for which provision is made under s.10(1)(b) and 10(2)(b) to be equated with the certificate for which provision was made by s.42(2) of the 1976 Act. The true comparison is between the latter certificate and the certificate for which s.10(3) of the 1947 Act makes provision. Tinnelly demonstrates that the provision for the s.10(3) certificate to be conclusive is potentially incompatible with Article 6(1). That is not, however, in issue in the present appeal.
60. The decision which Keith J found weighed more strongly in favour of Mr Matthews, indeed he found it indistinguishable from the present case, was Fogarty. The Judge considered that the claim to immunity in Fogarty was identical in effect to the issue of a certificate by the Secretary of State under s.10(1)(b) and 10(2)(b). In either case, absent the claim or the certificate, the substantive proceedings would go ahead. The Strasbourg Court had held that the claim to immunity merely imposed a procedural bar; it followed that the same was true of the issue of a certificate by the Secretary of State in the present case.
61. In our judgment the analogy drawn by the Judge is a false one. The requirement in s.10 for a certificate from the Secretary of State as a precondition to defeating a claimant’s cause of action is an unusual one and not easily analysed, and it cannot be treated simply as an option to impose a procedural bar on the claim.
62. In this case Mr Gordon has had resort to Hansard, without objection from the Secretary of State or the Judge below, in order to identify the purpose of the s.10 exception from the provisions of the 1947 Act. Having looked at Hansard for this purpose, it is not easy to ignore the reason why provision came to be made for the s.10(1) and (2) certificate – the more so because Mr Conor Gearty, whom the Court permitted to intervene briefly on behalf of the PTSD Group Action claimants, drew attention to this. Indeed, it seems to us that reference to Hansard for the latter purpose comes much closer to satisfying the requirements of Pepper v Hart, for s.10 leaves one in some doubt as to the nature and purpose of the Secretary of State’s certificate.
63. The Bill which became the 1947 Act was introduced into the House of Lords by the Lord Chancellor. The debate there shows that the Bill was always subject to the s.10 exception, which was not initially qualified by the requirement for a certificate. Provision was made for the ‘conclusive’ certificates under s.10(3) and there was considerable discussion about these. The requirement for the s.10(1) and (2) certificate was introduced in the Committee stage by the Attorney General. In moving these amendments the Lord Chancellor explained (Hansard 31 July 1947 p.849):

“The substance of these Amendments is this, and I think that it is valuable. It is quite plain that a soldier does not lose his right of action against a fellow soldier through whom he has been injured, unless the Minister of Pensions certifies that the injury he has sustained is attributable to war service, or that he can get a pension. In other words, we must see that before we deprive a man of his right of action we give him a co-relative right, by way of pension.”

64. It is thus apparent that it was never intended that the question of whether or not a serviceman should enjoy a right of action against a fellow serviceman or the Crown for personal injuries sustained in service should be at the option of the Secretary of State. The requirement for a certificate was introduced as a pre-requisite to the loss of the cause of action in order to establish conclusively that the circumstances which had deprived the serviceman of a cause of action had entitled him, provided other relevant criteria were satisfied, to a pension. While reference to Hansard makes this quite clear, it is the conclusion to which we would have come without that assistance. The observations of Sir John Donaldson MR in Bell v Defence Secretary [1986] 1QB 322 at 328 are to like effect.
65. The essence of the Judge’s reasoning on this issue appears in the following section of his judgment. Dealing at paragraph 21 with the effect of the issue of a certificate, he said:

“Plainly his right to sue, i.e. the Claimant’s right to claim his preferred remedy of damages for exposure to asbestos in circumstances amounting to negligence or breach of statutory duty, has been extinguished. But does the extinguishment of that right mean that he did not thereafter have the right not to have been exposed to asbestos in circumstances amounting to negligence or breach of statutory duty? If, after the passing of the 1947 Act, he had the primary right not to be exposed to asbestos in circumstances amounting to negligence or breach of statutory duty, section 10 merely extinguished his secondary right to claim damages for its breach, and that would amount merely to a procedural bar on his secondary right to claim his preferred remedy for breach of his primary right.

The structure of the 1947 Act shows that after its enactment the Claimant did indeed have the primary right not to be treated in a way which amounted to tortious conduct. The Crown’s previous immunity from liability in tort (whatever its extent may have been) was removed by section 2 of the 1947 Act. Thereafter the Crown could be liable in tort. Not merely did the Crown then owe, for example, a duty of care in appropriate circumstances, but if it broke that duty it could be sued. What section 10 did was simply to prevent the Crown being sued if it broke that duty in respect of members of the armed forces. Otherwise, section 10 would simply have provided that section 2 was not to apply to claims in tort brought by members of the armed forces against the Crown or against other members of the armed forces.”

66. We have difficulty with this reasoning, which appears to be founded on the premise that the substitution of potential entitlement to a pension for a cause of action in negligence is necessarily a matter of procedure. It seems to us that it is a matter of substantive law. A cause of action in negligence, as a matter of substantive law, requires duty, breach of duty and entitlement to a remedy. That last element is essential to the cause of action. The entitlement to a pension is some consolation for the loss of the cause of action, but it cannot properly be described as a remedy for breach of duty when it is not dependent upon proof of fault.
67. We conclude that the effect of s.10 is substantive and not procedural. The reality is that, if the circumstances set out in s.10(1)(a) or 10(2)(a) apply, the serviceman has no effective cause of action in negligence. Any claim that he brings will, in the normal course of events, be defeated by the issue by the Secretary of State of a certificate under s.10(1)(b) or 10(2)(b). The issue of that certificate is a procedural step required by the Secretary of State in order to assert the defence to the claim which is always latent. That defence exists as a matter of substantive law and not procedure.
68. In these circumstances, Article 6 is not engaged. If there is an issue as to whether the criteria in s.10(1)(a) or 10(2)(a) are satisfied, that issue is justiciable in the courts. If there is no such issue, and the Secretary of State has issued the necessary certificate, the serviceman has no civil right which engages the provisions of Article 6(1) of the Convention.
69. It follows from this conclusion that there is no incompatibility between s.10 of the 1947 Act and Article 6 of the Convention.

Article 1 of the First Protocol to the Convention

70. We now turn to the other way in which Mr Gordon contended that s.10 was incompatible with the Convention. The relevant part of Article 1 of Protocol No. 1 to the Convention reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest.”

71. Mr Gordon submitted that, up to the moment that the Secretary of State issued his certificate, Mr Matthews enjoyed a vested right to bring an action in negligence against the Ministry of Defence. This right constituted a ‘possession’ under Article 1. The issue of the certificate deprived Mr Matthews of this possession. To do so was not ‘in the public interest and subject to the conditions provided for by law and by the general principles of international law’. It followed that s.10, which entitled the Secretary of State to adopt this course, was incompatible with the First Protocol to the Convention.
72. The submission that a vested cause of action in tort constitutes a ‘possession’ for the purposes of the First Protocol receives support from the decision of the Strasbourg Court in Pressos Compania Naviera S.A. and Others v Belgium (1995) 21 EHRR 301 at paragraph 31. However, Mr Matthews’ right to claim in tort under the 1947 Act was always subject to the provisions of s.10. It was defeasible and would, in the normal course of events, be defeated by the issue of a certificate by the Secretary of State should any claim be brought. Thus, we do not consider that the issue of a certificate by the Secretary of State deprived Mr Matthews of a possession. If Mr Matthews’ claim is to be treated as a possession, the issue of the certificate was an incident of that possession which demonstrated that it was of little value. There is no incompatibility between s.10 and the First Protocol.

Section 3 and a purposive interpretation

73. It is convenient now to refer to the argument of construction, which Mr Gordon, with permission from this Court granted on 10 April of this year, advanced as his primary case. It was not advanced before Keith J. It was founded on this explanation for s.10 of the 1947 Act given to the House of Commons by the Attorney General, Sir Hartley Shawcross (Hansard 4 July 1947 p.1681) :

“Clause 10 is another Clause to which the attention of the House ought to be directed, because it contains a special exemption, or exclusion, in the case of claims between members of the Armed Forces in respect of personal injury which they have sustained while on duty as members of the Forces, or on Service premises. Here, again, I think Members will appreciate the special position which exists. For instance, it is necessary in the course of Service training, in order to secure the efficiency of the Forces, to exercise them in the use of live ammunition, in flying in close formation and, in the Navy, in battle conditions, with, perhaps, destroyers dashing about with lights out, and so on. These operations are highly dangerous and, if done by private citizens, would, no doubt, be extremely blameworthy, but it is impossible to apply the ordinary law of tort in regard to them, or make the Crown liable for any injury which, unhappily, results.”

74. Mr Gordon submitted that this explanation for s.10 could not justify conferring immunity on servicemen or the Crown in respect of tortious conduct that occurred in circumstances where warlike conditions did not pertain. S.10 should be given a purposive interpretation in order to make it accord with Parliament’s intention. This should be achieved by implying the following additional sentence at the end of s.10(1)(b):

“Such certificate shall not, however, be issued in any event unless the Secretary of State is satisfied that the circumstances in which the death or personal injury occurred were those of warlike conditions.”

75. Mr Gordon submitted that his proposed interpretation would have the effect that s.10 addressed a legitimate aim in a manner which was proportionate and thus rendered the section compatible with the Convention. It was legitimate, indeed mandatory, to give the section this interpretation because of the obligation imposed on the Court by s.3 of the HRA. The decision of the House of Lords in R v A (No. 2)[2001] 2 WLR 1546 showed that the technique of ‘reading down’ a statutory provision so as to restrict its ambit was legitimate.
76. We can deal with these submissions quite shortly. In the first place, we have concluded that neither Article 6 nor the First Protocol is engaged by the facts of this case. It follows that s.3 has no application. In the second place, we consider that to imply the additional clause suggested by Mr Gordon would be to go beyond the bounds of what s.3 of the HRA permits. The fundamental alteration of the scope of s.10, which would result from the addition of the proposed clause, would amount to legislation by this Court. Such a course is not permissible. Keith J. came to the same conclusion.

The retrospectivity issue

77. Despite Mr Pannick’s eloquence we had difficulty in seeing how questions of retrospectivity provided an answer to Mr Matthews’ case. This was that he was prevented from access to the court by a procedural bar at the moment when the Secretary of State issued the certificate on 11 March of this year. No retrospectivity was involved in this case.
78. Retrospectivity might have been relevant to Mr Gordon’s new submission on interpretation for, had we acceded to this, it would have altered the effect of s.10 so as to confer on Mr Matthews an indefeasible cause of action which he did not enjoy before the HRA, and in particular s.3 of that Act, came into force. We did not, however, understand Mr Pannick’s submissions on retrospectivity to be directed to this issue, for they were advanced in the court below at a time where this issue did not arise. At all events, in view of our finding that the facts of this case engage neither Article 6 nor the First Protocol, no question of retrospectivity arises.

The proportionality issue

79. Because we have found no interference with a Convention right, no issue of proportionality arises. In these circumstances we do not propose to consider the attack made by Mr Pannick on the Judge’s findings that s.10 applied too widely to serve a legitimate aim in a manner that was proportional. We would simply conclude with the observation that it does appear to us to be 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 less favourably than servicemen who have sustained injury in similar circumstances, but as a result of more recent events.
80. For the reasons that we have given, this appeal will be allowed with the result that the action must be dismissed.