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Matthews v the Ministry of Defence [2002] EWHC 13 (QB) (22nd January, 2002)

		Neutral Citation Number: [2002] EWHC 13 (QB)
		Case No: S/01/0219

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

22 January 2002

B e f o r e :

THE HONOURABLE MR JUSTICE KEITH
____________________

ALAN ROBERT MATTHEWS
Claimant

- and -

THE MINISTRY OF DEFENCE
Defendant

____________________

Mr Robert Weir (instructed by Bond Pearce for the Claimant)
Mr Robert Jay QC and Ms Helen Mountfield (instructed by The Treasury Solicitor for the Defendant)
____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Mr Justice Keith

A. Introduction

Until the end of the Second World War, legal proceedings could not be brought against the Crown as of right. As Hale said, “the King can do no wrong”. That changed with the enactment in 1947 of the Crown Proceedings Act (“the 1947 Act”). The Crown’s immunity from action was brought to an end.

But members of the armed forces were treated exceptionally. If they died or were injured in the course of their duties, the Crown could not be sued in tort if the Secretary of State certified that the death or injury would be treated as attributable to service for the purposes of entitlement to a war pension. This exception was removed in 1987, but its removal was not retrospective. So even after 1987, claims in tort by members of the armed forces (or their estates) who had died or been injured while on duty prior to 1987 could not proceed if the Secretary of State issued the appropriate certificate. This immunity from action is now the subject of a sustained legal challenge on the ground that it is incompatible with various Convention rights.

The outcome of a number of large group actions is said to be dependent on the success of this challenge, and the cases of members of the armed forces whose claims have been trumped by the issue by the Secretary of State of the appropriate certificate could well be similarly affected. I therefore approach this case with a keen sense of its importance.

B. The current proceedings

The Claimant was employed by the Ministry of Defence (“the Ministry”) in the Royal Navy as an electrical engineer between 1955 and 1968. He worked on board various ships. He claims that he developed an asbestos-related illness as a result of his exposure to asbestos in the course of his work, though it was not until some time in 1999 that he became aware that his illness was attributable to what he alleges were acts or omissions on the part of the Ministry. Early last year, he issued proceedings against the Ministry, alleging that his illness was caused by its negligence and breach of statutory duty.

The Ministry proposes to defend the Claimant’s claim on its merits. However, it also relies on the immunity from action in respect of claims brought against it by members of the armed forces conferred by the 1947 Act. It is common ground that the Claimant’s claim must be dismissed if the Ministry’s immunity from action survives this challenge to its compatibility with Convention rights. Those rights are the rights set out in Arts. 6(1) and 2(1) of the Convention. Accordingly, the parties agreed that the Court should be asked to determine a number of preliminary issues, which the parties have identified as follows:

(1) whether the Claimant, as a member of the armed forces at the time of the matters complained of, is entitled to rely upon Art. 6(1) of the Convention;

(2) whether section 10 of the 1947 Act prima facie infringes the Claimant’s rights under Art. 6(1);

(3) whether section 10 of the 1947 Act prima facie infringes the Claimant’s rights under Art. 2(1) of the Convention;

(4) if the answer to (2) and/or (3) be “yes”, whether it is possible to read and give effect to section 10 in a way which is compatible with the Claimant’s rights under the Convention; and

(5) if the answer to (4) is “no”, whether a declaration of incompatibility within the terms of section 4(2) of the Human Rights Act 1998 should be made.

In the course of the hearing, I directed that these issues be treated as preliminary issues. In the course of this judgment, I shall endeavour to address each of these issues, as well as a number of subsidiary issues which they raise, though only to the extent which is necessary in order to deal with the Claimant’s claim. But before turning to Arts. 6(1) and 2(1) of the Convention, it is necessary to consider the relevant provision in the 1947 Act.

C. The 1947 Act

The exceptional treatment of members of the armed forces who wish to sue the Crown in tort for causing death or personal injuries was provided for by section 10 of the 1947 Act. It provided (save for inconsequential amendments or repeals) as follows:

“(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 to 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 purposes of this section, be conclusive as to the fact which it certifies.”

The effect of this provision was to substitute, in those cases in which the Secretary of State issued the appropriate certificate, a scheme of compensation for the right to sue for damages. Members of the armed forces to whom the scheme applied did not need to prove fault to obtain such compensation. I shall return a little later to particular features of the scheme currently in place, but the benefits under the scheme are modest when compared with modern levels of awards of damages.

Two points should be made in connection with the application of section 10 to the current claim. First, because the Claimant is complaining about the condition of the ships on which he worked, it is section 10(2) which prevents him from pursuing his current claim against the Ministry. Section 10(2) imposes a blanket immunity from action in the circumstances to which it applies. But since the Claimant is contending that fellow service personnel must have been responsible for the condition of the ships on which he worked, section 10(1), which imposes a blanket immunity from liability in the circumstances to which it applies, prevents him from obtaining judgment against the Ministry on that aspect of his claim. Secondly, the relevant Secretary of State is now the Secretary of State for Defence. By the date of the hearing, he had not issued a certificate relating to the Claimant’s condition in the terms of section 10(1)(b), but Mr Robert Jay QC for the Ministry gave the Court an undertaking on the Secretary of State’s behalf that the certificate would be issued as soon as reasonably practicable.

Section 10 of the 1947 Act was repealed by section 1 of the Crown Proceedings (Armed Forces) Act 1987 (“the 1987 Act”) which provides:

“Subject to section 2 below [which gives the Secretary of State the power to revise section 10 in very limited circumstances], section 10 of the Crown Proceedings Act 1947 (exclusion 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.” (Emphasis supplied)

This section repealed section 10 of the 1947 Act, but the effect of the emphasised words was to limit the repeal to claims which were based on acts done or omissions occurring after the enactment of the 1987 Act. Claims based on acts done or omissions occurring prior to its enactment were not affected by the repeal. The practical effect of that on the Claimant’s claim (which is based on acts done or omissions occurring prior to 1987) is that section 10 of the 1947 Act still prevents him from pursuing his claim against the Ministry (subject, of course, to its compatibility with Convention rights).

D. Art. 6(1) of the Convention

Art. 6(1) of the Convention provides (so far as is material for present purposes):

“In the determination of his civil rights ... , everyone is entitled to a fair ... hearing ... ”

The Claimant’s inability to sue the Ministry for damages for its negligence and breach of statutory duty in allegedly exposing him to asbestos is said to infringe his right to a fair hearing for his right to damages in tort to be determined. This argument requires four separate issues to be addressed, and I shall refer to them as the retrospectivity issue, the procedural bar issue, the state service issue and the proportionality issue for convenience.

(1) The retrospectivity issue

The Claimant’s ability to sue the Ministry is entirely dependent on the enforceability of his Convention rights. But until the Human Rights Act 1998 (“the HRA”) came into force on 2 October 2000, those rights were not enforceable by him in the English courts. The question which the present case raises is whether the Claimant can rely on the HRA to enforce his Convention rights under Art. 6(1) in an English court in respect of a cause of action which arose before the HRA came into force.

A similar question was addressed by the Court of Appeal in Wilson v. First County Trust Ltd. (No.2) [2001] EWCA Civ 633. A loan agreement dated 22 January 1999 between the Claimant and the Defendant (who were pawnbrokers) was held by the Court of Appeal to have failed to comply with regulations made under the Consumer Credit Act 1974 (“the 1974 Act”). Accordingly, section 127(3) of the 1974 Act barred the Court of Appeal from enforcing the agreement. The issue which the Court then had to decide was whether that bar on enforcement might be an infringement, inter alia, of the right to a fair trial guaranteed by Art. 6(1) of the Convention. It was argued on behalf of the Secretary of State for Trade and Industry that the Court was prevented from declaring section 127(3) of the 1974 Act to be incompatible with Art. 6(1) since the parties had entered the loan agreement before the HRA came into force.

In handing down the judgment of the Court, Morritt V-C noted at [17] that section 6(1) of the HRA, when read in conjunction with section 6(3)(a), requires a court to refrain from acting in a way which is incompatible with a Convention right. Morritt V-C continued at [17-18]:

“If the court is to comply with that requirement it must ask itself - in any case which comes before it after 2 October 2000 - whether the order which it is about to make is or is not compatible with Convention rights. The relevant event, in the present case, is not the making of the agreement on 22 January 1999; the relevant event is the making of an order on this appeal.

To put the point in another way, the relevant question, in the present case, is not whether some Convention right of [the Defendant] was infringed when it made a loan to [the Claimant] upon the terms of the agreement dated 22 January 1999; nor whether, before 2 October 2000, there was any domestic remedy in respect of any such infringement. The relevant question is whether ... , in making an order after 2 October 2000 which gives effect to a decision to allow the appeal ... , this court would be acting in a way which is incompatible with an existing Convention right. That is a question which has to be answered on the basis of the facts as they are at the time when the order is made in this court.”

The only argument which was said to militate against this view was based on the terms of section 22(4) of the HRA which both extended and limited the retrospective effect of section 7(1) of the HRA. It is unnecessary to spell out the argument here. All that needs to be said is that the Court’s conclusion at [22] was as follows:

“Section 22(4) is directed to the particular problems raised by the decision to give a domestic remedy, under section 7(1) of the [HRA], against public authorities who act, or have acted, in a way made unlawful by section 6(1). It has no relevance to the quite separate question whether the court, which is now required by section 6(1) to act in a way which is compatible with Convention rights, must have regard to the facts as they are at the time when it makes its order. As we have said, that question requires an affirmative answer.”

This view of the effect of section 22(4) was approved by the majority of the House of Lords in R. v. Lambert [2001] UKHL 37.

Mr Jay felt unable to advance any argument to the effect that the reasoning in Wilson should not apply to the present case. He reserved the right to argue elsewhere that Wilson may have been wrongly decided, but he accepted that once the reasoning in Wilson should be regarded as applying to the present case, the court had no alternative but to give effect to that reasoning. He therefore conceded that I should conclude - and I do so conclude - that, on the retrospectivity issue, the Claimant can rely on the HRA to enforce his rights under Art. 6(1) of the Convention to have his claim determined, even though that claim arose before the HRA came into force.

(2) The procedural bar issue

The right to a fair hearing guaranteed by Art. 6(1) relates (so far as is relevant to the present case) to the determination of the Claimant’s “civil rights”. If his claim for damages for negligence and breach of statutory duty is to be permitted to proceed to a hearing on its merits, it is therefore necessary for the claim to be classified as one which involves the determination of his civil rights. Mr Jay contended that the effect of section 10 of the 1947 Act was to prevent the Claimant from having any civil right at all to damages. In that sense, section 10 constituted a substantive bar to his claim. Accordingly, since the Claimant has no civil rights to be determined, Art. 6(1) does not come into play.

For his part, Mr Robert Weir for the Claimant argued that the Claimant’s civil right not to have been exposed to asbestos in circumstances amounting to negligence or breach of statutory duty was unaffected by section 10. The effect of section 10 was to prevent him from pursuing the remedy of damages for the breach of that right. In that sense, section 10 constituted only a procedural bar to his claim. Since the Claimant has civil rights to be determined, Art. 6(1) provided him with the right of access to the courts to enable those rights to be determined.

There is one preliminary point which I should address. It was argued on behalf of the Claimant that section 10 of the 1947 Act had the effect of putting the Claimant into the position in which he would have been prior to the coming into force of the 1947 Act. Following on from that, it was said that Crown immunity at common law did not mean that the Crown was permitted to ignore the duties which it owed. Crown immunity simply meant that the Crown could not be sued for any alleged breach of those duties. Thus, even prior to the 1947 Act, the Claimant would have had the civil right not to be exposed to asbestos in circumstances amounting to negligence or breach of statutory duty, even though he could not pursue a remedy for the breach of that right.

I cannot go along with this argument at all. It is unnecessary to consider the constitutional reach of Crown immunity prior to 1947, because the fallacy in the argument is that it assumes that section 10 simply had the effect of disapplying to members of the armed forces the reforms effected by the 1947 Act. Those reforms were set out in sections 1 and 2 of the 1947 Act which, in short, enabled claims to be brought against the Crown and rendered the Crown liable in tort. Section 10 did not seek to perpetuate the old law (whatever it may have been) in relation to members of the armed forces. It created a wholly new system of immunity in respect of claims by members of the armed forces. If the intention of the legislature had been otherwise, section 10 need only to have provided that sections 1 and 2 were not to apply to claims against the Crown by members of the armed forces.

In any event, at least one substantive change to the previous law was effected by section 10. Section 10 removed the right which had previously existed for one member of the armed forces to sue another in a case of death or injury caused by negligence. Moreover, section 10 did not provide the Crown with immunity from all claims which members of the armed forces may have in tort. It immunised the Crown only for those claims in tort in which death or personal injury had resulted, and even then only in the circumstances to which sections 10(1)(a) and 10(2)(a) applied.

I turn, therefore, to the substantive argument on the procedural bar issue. Mr Weir had a number of arguments, but the argument which comes first analytically went like this. The Crown’s immunity from action or liability under section 10 in respect of claims by members of the armed forces only arises if the Secretary of State issues the appropriate certificate under sections 10(1)(b) or 10(2)(b). Until he does so, members of the armed forces have the substantive right to sue the Crown in tort. So if the Secretary of State elects not to issue a certificate, there is no bar at all on the claim proceeding to a hearing and judgment. It was argued on behalf of the Claimant that that conclusively demonstrates that section 10 constituted only a procedural bar to the claim.

The counter-argument is that the issue by the Secretary of State of the appropriate certificate is simply the mechanism by which the immunity from action or liability provided for by section 10 is activated. Once that immunity has been activated by the issue of the appropriate certificate, such rights as the would-be claimant has are extinguished. I see the force of that argument, but the critical question relates to the extent of those rights. 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.

The Claimant’s line of argument is supported by two judgments in the European Court of Human Rights in cases in which the defendants claimed to be immunised from legal proceedings. First, in Tinnelly & Sons Ltd. v. The United Kingdom (1999) 27 EHRR 249, two contractors in Northern Ireland complained to the Fair Employment Agency under the Fair Employment (Northern Ireland) Act 1976 (“the 1976 Act”) that their tenders had been refused because of what were thought to be the religious beliefs or political opinions of their employees. They were unable to advance their complaints because certificates had been issued under section 42(2) of the 1976 Act to the effect that the tenders had been refused for the purpose set out in section 42(1), namely “for the purpose of safeguarding national security or of protecting safety or public order”. The court held at [62]:

“The Court does not accept the Government’s plea that the applicants did not enjoy a substantive right under the domestic legislation having regard to the terms of section 42(1) of the 1976 Act. Whether or not the act of refusing the contracts and the security clearance necessary for obtaining them was an act done for the purposes of protecting, inter alia, national security is a matter which can properly be submitted for examination by a court or tribunal. To allow section 42(1) to operate so as to oust automatically the jurisdiction of the bodies set up under the 1976 and 1989 Acts would limit considerably the scheme of protection contained in the legislation and, as noted by the Commission, render private or public bodies immune from liability in respect of complaints that they had committed acts of unlawful discrimination. For these reasons, the Court considers that section 42(1) does not define the scope of the substantive right in limine but provides a respondent with a defence to a complaint of unlawful discrimination.”

The Court reached this conclusion even though the actual language of section 42(1) was:

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

Moreover, the Secretary of State was not required to balance conflicting policy considerations in deciding whether to issue the certificate. All he had to decide was whether the act complained of had been done on security grounds.

Secondly, an even stronger case in support of the Claimant’s argument is Fogarty v. The United Kingdom (Application no. 37112/97). The Government of the United States relied on the State Immunity Act 1978 to resist a claim brought against it in an industrial tribunal by a former employee who alleged that she had been refused two posts as a result of having successfully brought a previous complaint of sex discrimination. The Court held at [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 (see, mutatis mutandis, Tinnelly and Sons Ltd. v. The United Kingdom, nos. 20390/92 and 21322/93, para. 62, ECHR 1998-IV).”

The point about this case is that immunity from legal process had to be claimed. In the absence of such a claim, the proceedings which Ms Fogarty had initiated would have proceeded to their natural conclusion in the absence of compromise or withdrawal. The Government of the United States was not obliged to claim immunity. It could have decided to let the industrial tribunal decide the case on its merits (as it had done with Ms Fogarty’s previous claim).

I see no relevant distinction between the Fogarty case and the present one. It is open to the Secretary of State to permit claims in tort by members of the armed forces in respect of pre-1987 acts or omissions to proceed to trial if he wants to. Mr Jay told me that the policy of the Secretary of State is to issue the appropriate certificate under sections 10(1)(b) or 10(2)(b) in every case in which he is satisfied that there is a connection between the serviceman’s injuries and his service in the armed forces. I am prepared to assume in the Secretary of State’s favour, though I was not told, that this has been the policy of successive Secretaries of State since 1947, but that does not mean that the Secretary of State does not have an absolute discretion in the matter. The fact that, as a matter of policy, he has decided to exercise his discretion in a particular way in all cases does not mean that he cannot depart from this policy if he wants to. In any event, the fact that his policy is limited only to the circumstances in which he is satisfied that there is a connection between the serviceman’s injuries and his service in the armed forces speaks volumes. If the serviceman maintains, despite the Secretary of State’s belief to the contrary, that his injuries are attributable to his service, his right of action will not be trumped by the issue of the appropriate certificate.

I have not overlooked the trilogy of cases decided in favour of the Ministry by the European Commission of Human Rights in the early years of its jurisprudence: Ketterick v. The United Kingdom (1983) 5 EHRR 465, Pinder v. The United Kingdom (1985) 7 EHRR 464 and Dyer v. The United Kingdom (1985) 7 EHRR 469. The Secretary of State’s reliance on section 10 in these cases was upheld on the basis that the replacement of the civil right to sue in tort by a less valuable scheme for compensation did not “in principle give rise to an issue under Art. 6(1)”, and was not “an arbitrary limitation” on the applicants’ substantive civil claims. What the Commission did not address in those cases was whether the extinguishment in section 10 of the secondary right to sue in tort for death or personal injury had extinguished the primary right in section 2 not to be treated in a way which amounted to tortious conduct. Nor did the Commission address the critical point that the secondary right to sue in tort for death or personal injury was only extinguished in those cases in which the Secretary of State had decided to issue the appropriate certificate. It therefore did not address the very issues which are said to militate against section 10 constituting only a procedural bar to the Claimant’s claim.

For these reasons, I have concluded that the Claimant’s civil right not to have been exposed to asbestos in circumstances amounting to negligence or breach of statutory duty was unaffected by section 10. The effect of section 10 was to prevent him from pursuing the remedy of damages for the breach of that civil right. Since his claim involves the determination of that civil right, Art. 6(1) is engaged. In these circumstances, it is unnecessary for me to address a number of other arguments based on the language of sections 1, 2 and 10 of the 1947 Act relied upon by Mr Weir in support of his contention that section 10 only constituted a procedural bar to the Claimant’s claim, or arguments relied upon by him in support of an alternative contention that, even if section 10 constituted a substantive bar to the Claimant’s claim, Art. 6(1) continued to be engaged.

(3) The state service issue

The European Court has for some time held that certain claims should not be characterised as involving the determination of civil rights. In particular, some claims made by persons employed by the State have not been treated as involving the determination of civil rights. Mr Jay contended that a claim for damages by a member of the armed forces for ill-health arising from harmful conditions of work can properly be characterised as one which does not involve the determination of a claimant’s civil rights. Mr Weir contended otherwise.

The extent of the exclusion of claims by persons employed by the State (“the state service exclusion”) from the right to a fair hearing guaranteed by Art. 6(1) has been considered in a number of European judgments. Until recently, it had been difficult to discern the principles on which some claims were classified as involving the determination of the claimant’s civil rights and others were not. Accordingly, in Pellegrin v. France (2001) 31 EHRR 26, the European Court of Human Rights laid down a new criterion for determining whether claims came within the state service exclusion or not. That new criterion requires attention to be focused on the employee’s duties and responsibilities. Only when his duties and responsibilities “typif[ied] the specific activities of the public service in so far as the [employee] is acting as the depository of public authority responsible for protecting the general interests of the State or other public authorities” [66], so that the employee “wield[s] a portion of the State’s sovereign power” [65], will the employee’s claim be classified as not involving the determination of his civil rights. The classic examples of employees who wielded such power were said to be police officers and members of the armed forces.

The new criterion in Pellegrin was applied by the European Court of Human Rights to a reserve officer in the Belgian armed forces in R v. Belgium (Application no. 33919/96). The Petitioner had been the Chief of Staff of the National Union of Reserve Officers, and he had claimed a military pension in reparation for injuries sustained by him while on military exercises. Not surprisingly, the Court found that no valid distinction could be drawn between reserve and active military service, and following Pellegrin it held that the Petitioner’s claim for a military pension was not one which involved the determination of his civil rights. That was because, in his position as a reserve officer discharging the duties and responsibilities assigned to him, he had been “holding public power charged with protecting the general interests of the State” [44].

However, 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 of 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.

The argument on behalf of the Secretary of State is that the replacement of a fault-based common law system of damages by a non-fault-based scheme of compensation for the same injuries amounted to a condition of service for members of the armed forces. I cannot go along with that argument. As the Court noted in Pellegrin, the state service exclusion was developed because the law of many member states differentiated between the conditions of service of employees in the public sector and the conditions of service of employees in the private sector. This had led the Court to hold in the past that “disputes relating to the recruitment, careers and termination of service of civil servants are as a general rule outside the scope of Art. 6(1)” [59].

I have to say that I have some difficulty understanding why such disputes should not be regarded as disputes involving “civil rights”. Having said that, I am prepared to assume, in favour of the Secretary of State’s argument, but without deciding, that disputes relating in addition to the terms on which civil servants are employed are outside the scope of Art. 6(1) (subject, of course, to the new functional test established by Pellegrin). But it is, I think, stretching modern notions of the incidents of the contract of employment much too far if one characterises an employee’s statutory right to compensation under a non-fault-based scheme for injuries caused at work (which is itself dependent on the exercise of a discretion by the Secretary of State to issue the appropriate certificate) to the exclusion of claims in tort in accordance with a fault-based compensatory scheme otherwise applicable to all employees as a condition of his service. On the contrary: it is not a term on which the employee is employed. It is merely the statutory substitution for one remedy which he might have for injuries sustained at work by another which, though relieving him of the need to prove fault, is likely to be far less beneficial financially.

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. That is what distinguishes the Claimant’s claim from that of the Petitioner in the Belgium case. Although the Court’s judgment does not state the basis of the latter’s claim for a military pension, it presumably was on the basis of his conditions of service: if it had been otherwise, the Court would undoubtedly have said so. It follows that the Claimant’s claim is not one to which the state service exclusion applies.

(4) The proportionality issue

Jurisprudence on the Convention shows that a restriction on the right of access to the courts has to be proportionate to the legitimate aim which the restriction pursues. Thus, in Ashingdane v. The United Kingdom (1985) 7 EHRR 528, the European Court of Human Rights said at [57] that “a limitation will not be compatible with Art. 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.” Such a statutory restriction on a Convention right will only satisfy the test of proportionality if three conditions are satisfied:

(a) the legislative objective must be sufficiently important to justify limiting a fundamental right;

(b) the measures designed to meet the legislative objective must be rationally connected to that objective; and

So said Lord Clyde in de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing [1999] 1 AC 69 at p.80, and his analysis was cited with approval by Lord Steyn in R. (Daly) v. Secretary of State for the Home Department [2001] UKHL 26 at [27]. The first of these three conditions reflects the need for the legislative objective at which the restriction on the Convention right is aimed to be a legitimate one.

Mr Weir contended that it was for the Court to assess the balance which the legislature had struck, and he relied on a comment which Lord Steyn made a little later in his speech in the Daly case, also at [27]:

“... the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions.” (Emphasis supplied)

However, it is important that this comment should be kept in its proper context. Issues of proportionality touch upon areas of modern life in which “difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society” (per Lord Hope of Craighead in R. v. Director of Public Prosecutions ex p. Kebilene [2000] 2 AC 326 at p.381). What deference should the court which has to determine whether a statutory restriction on a Convention right satisfies the test of proportionality give to the view of the legislature which enacted the restriction? Lord Hope addressed that issue in Kebilene at p.381 as follows:

“In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. This point is well made at p.74, para. 3.21 of Human Rights Law and Practice (1999), of which Lord Lester of Herne Hill and Mr Pannick are the general editors, where the area in which these choices may arise is conveniently and appropriately described as the ‘discretionary area of judgment.’ It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.”

There is, therefore, a sliding scale on which the views of the legislature should be taken into account, and it was the wide range of circumstances which decisions in the public arena involve which, I think, Lord Steyn had in mind in Daly (in which the discussion related to the intensity of the court’s review on an application for judicial review) when he made the comment relied upon by Mr Weir. Having said that, the right of access to the courts guaranteed by Art. 6(1) is stated in unqualified terms, and the issues of proportionality which the present case raise do not give rise to questions of social or economic policy on which special expertise is called for. On the contrary: the issues raised are of a kind where the courts are well placed to assess the need for protection.

I turn to the first of the three conditions which the test of proportionality involves. Mr Jay had no principled objection to the use of Parliamentary materials to ascertain what the legislative objective was. They show that there was something less than enthusiasm for the measure. In the course of moving the Second Reading in the House of Lords of the Bill which was subsequently enacted as the 1947 Act, the Lord Chancellor (Viscount Jowitt) disclosed that the clause which eventually became section 10 was “one of the clauses that I have been pressed and indeed compelled by the Service Departments to insert in order to overcome the misgiving or, if you like, the reluctance which they feel, and have traditionally felt, about the introduction of this Bill” (Official Reports, House of Lords, 4 March 1947, vol.146, col.69). And in Committee, he said: “The long and short of it is that I am under an obligation, either to get this clause as it is or to withdraw my Bill” (Official Reports, House of Lords, 13 March 1947, vol.146, col.382). So it was left to the Attorney-General (Sir Hartley Shawcross) to provide the justification for not giving members of the armed forces the right of action against the Crown. He said:

“... 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. ...Members will appreciate from the kind of example I have given, that it would be impossible to risk prejudicing the efficiency and discipline of the Forces by doing less than we propose to do, or that any officer or soldier ought to be placed in the position of feeling that if he makes a mistake, and personal injury results to another soldier, or man under his command, he may be liable to pay damages and the Crown will not be obliged to stand behind him.” (Official Reports, House of Commons, 4 July 1947, vol.439, cols.1681, 1682).

Summarising it, the stated objective which section 10 was seeking to achieve was the efficiency and discipline of the armed forces which it was thought could be undermined if, in the course of training manoeuvres, which are necessarily high-risk activities, and in which the task of determining the precise scope of the duty of care might be especially difficult, service personnel might not give of their best if they thought that they might be liable, or that the Ministry of Defence might be vicariously liable on their behalf, for the death of or injury to other members of the armed forces as a result of their negligence or breach of statutory duty. That pre-supposed, of course, that in every case the Secretary of State would issue the appropriate certificate. If he did not, the peace of mind which service personnel who would otherwise have been potential defendants will not have been preserved. No such concern arose in real operations when members of the armed forces engaged the enemy in battle conditions in the course of hostilities, because a serviceman did not owe a fellow serviceman a duty of care in tort in such circumstances: see Mulcahy v. Ministry of Defence [1996] QB 732.

I cannot say that the aim which section 10 pursued was not a legitimate one at the time. Nor can I say that the objective which section 10 was enacted to achieve was not sufficiently important at the time to justify placing limitations on the right of access to the courts which service personnel would otherwise have enjoyed. But however persuasive that objective may have been thought to be in 1947 in the aftermath of war, the repeal of section 10 in 1987 shows that it was no longer thought that this objective had to be met after many years of peace.

What cannot be denied is that, subject to the issue by the Secretary of State of the appropriate certificate, section 10 imposes a blanket ban on all claims in tort by members of the armed forces for death or personal injury, even if the death or injury occurred outside training manoeuvres (provided, of course, in a case to which section 10(1) applied, that the act or omission complained of occurred in the course of the execution of the tortfeasor’s duties). To take a few examples, section 10 prevents service personnel from suing if they slip on a spillage and are injured while queuing for food in a NAAFI canteen; it prevents them from suing if they are knocked down on military land and injured by a military driver while he is on duty; and it prevents them from suing if they are negligently treated by a military doctor while undergoing surgery. If the justification for the restriction on the right of action was the need to preserve the efficiency of training manoeuvres, there was no need for the restriction to be drafted in such a way that it caught those aspects of military life which were indistinguishable from life outside the services. The all-embracing nature of section 10 means that it is not rationally connected to the limited objective it was intended to achieve, and the limitation placed on the right of access to the courts was more than reasonably necessary to accomplish that objective.

I turn to the scheme of compensation which was intended to replace the right of action in those cases in which the Secretary of State issued the appropriate certificate. Mr Jay argued that it was the justifiability of replacing one scheme of compensation for another which has to be addressed, and not the advantages or disadvantages of the two systems or their impact on individual cases. That, Mr Jay argued, was supported by what the Commission stated in Pinder at [8-9]:

“The Commission finds it legitimate for State authorities to consider that servicemen are, as a group, exposed to risks of death and injury by the very nature of their work and training and to be more at risk than other professional groups in society. Moreover, the close relationship that exists between members of the armed forces, often taking the form of a special dependence and solidarity between the ranks, may operate in particular situations to reduce the choice of action or behaviour open to them. This element distinguishes them from civilians and represents a factor which can be legitimately taken into account by the State in regulating civil liability with respect to the armed forces. The creation of a pension entitlement to provide certain coverage of the needs of injured servicemen without enquiry as to fault, in recognition of these professional risks, cannot be regarded as either arbitrary or unreasonable.”

I cannot go along with this argument. I accept entirely that what the Commission said in Pinder may well be a sufficient basis for having a suitable alternative scheme of compensation in those cases where death or injury arises in situations which are peculiar to military life. But as I have said, the restriction on the right of access to the courts contained in section 10 applies to all aspects of military life, not simply those in which members of the armed forces are exposed to greater risks than civilians. In any event, contrary to Mr Jay’s submission, the Commission in Pinder did indeed compare the advantages and disadvantages of the two systems. It said in [9]:

“Its principal advantage to the injured serviceman within the scheme is that he is relieved of the frequently difficult burden of establishing negligence and made the beneficiary of a pension right linked to the extent of disablement. The traditional action in negligence is frequently characterised as time-consuming, costly and uncertain. The pension scheme, on the other hand, provides immediate payment which can be adjusted to take account of inflation and changes in the degree of disablement.”

I accept, of course, that one of the objectives of the scheme of compensation which section 10 put in place if the Secretary of State issued the appropriate certificate was to replace the vagaries and heavy litigation costs of a fault-based-system for compensating service personnel with the certainty and relative efficiency of a non-fault-based scheme of compensation. But the current scheme, as I have already said, provides for the payment of very modest benefits when compared with the amounts which a severely injured claimant can expect to recover by litigation. Indeed, where the injury is a minor one, the claimant cannot expect to recover any benefits at all under the scheme currently in place, even though, in the absence of the procedural bar, he would be entitled to an award of at least some damages. Moreover, benefits are only payable under the current scheme when the claimant retires from service. Accordingly, if the claimant remains in the service, he may have to wait for many years before he receives any compensation for his injury. All this is an exceptionally, indeed an unacceptably, high price to pay for the advantage of not having to prove fault, an advantage which would only apply to those cases in which the question of fault on the part of the other party is in doubt. In any event, the question of the claimant’s fault is still relevant. Under the current scheme, the Secretary of State may withhold, cancel or reduce the benefits payable on the basis that the injury was caused or contributed to by the serious negligence or misconduct of the claimant.

Finally, I should add that it is common ground that the proportionality issues which have had to be addressed did not need to be focused on why the repeal of section 10 was not made retrospective in 1987, but on whether section 10, to the extent that it is currently applicable, is a justifiable restriction on the right of access to the courts. In other words, the question has been whether the continuing application of section 10, albeit only to pre-1987 acts or omissions, satisfies the test of proportionality. But I propose to address briefly the supposed justification for not making the repeal of section 10 in 1987 retrospective.

The Bill which was enacted as the 1987 Act was a private member’s Bill. Its promoter (Mr Winston Churchill) was at pains to explain on the Second Reading of the Bill why the Bill would not apply retrospectively. He said:

“Successive Governments have resisted retrospective legislation as a basic concept, especially where such legislation imposes a retrospective liability on others. Secondly, it would clearly be wrong to impose retrospective liability on a service man for past actions, even if the Crown, his employer, were to stand behind him. That would involve individuals who are alleged to be guilty of negligence over the years being brought to book in a court of law for actions which, at the time they were committed, they were not liable under the law. That is a strong argument against retrospective legislation. Thirdly, the questions have to be asked, where should the line be drawn in dealing with past claims so as to be fair and just towards all claimants? How could there be a logical cut-off point for considering claims either by the Ministry of Defence or by the courts? How could those whose claims fell on the wrong side of an arbitrary line be satisfied? How could the Ministry of Defence, and ultimately the courts, be expected to assess old cases where the necessary documentary evidence or witnesses are no longer available?

Those are practical answers to which, sadly, there are no ready answers. For that reason, I believe that the only reasonable course of action is to legislate for the repeal of section 10 from the date of enactment. I recognise that this will be a bitter disappointment to the families of victims of section 10 who have campaigned so hard to secure a change in the law. Sadly for them, it will only benefit others.” (Official Reports, House of Commons, 13 February 1987, vol. 110, col. 572).

For my part, I do not find these arguments compelling. Mr Jay conceded that the first argument was not persuasive. As for the second, if the Ministry was to stand behind the individual serviceman sued, the mere finding of negligence against him (without the corresponding obligation to pay the damages himself) for conduct for which he could not have been sued at the time of the conduct complained of is far less pernicious than the denial of proper compensation to persons injured as a result of that negligence. As for the third, if the action is brought within the limitation period, the Ministry cannot complain if the claim is a stale one. If the action is brought outside the limitation period, the fact that the relevant documents and witnesses may be unavailable will be highly relevant to whether an application under section 33(1) of the Limitation Act 1980 to disapply the limitation period will be successful.

For all these reasons, therefore, I do not think that the restriction on the right of access to the courts contained in section 10 satisfies the test of proportionality. Indeed, Parliament has already spoken on the issue by its repeal of section 10, albeit in relation to post 1987 acts or omissions.

E. Art. 2(1) of the Convention

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.

It is unnecessary for me to address this argument in the light of my conclusion on the effect of Art. 6(1), but in my opinion the argument adds nothing to the debate on Art. 6(1). If the argument is correct, it merely reinforces the validity of the distinction which I have already sought to draw, when considering the procedural bar issue, between the Claimant’s primary right not to be exposed to asbestos in circumstances amounting to negligence or breach of statutory duty and his secondary right to be able to claim his preferred remedy for the breach of that primary right. Indeed, I am strongly inclined to the view advanced on behalf of the Secretary of State that the mere existence of a positive obligation by the Ministry to protect the Claimant’s life by taking steps not to expose him to asbestos does not mandate either (a) a particular mechanism to determine whether that obligation was broken or (b) a particular scheme of compensation for deaths which are attributable to service in the armed forces. It is Art. 6(1) which mandates a right of action for the breach of the primary right.

In the interests of completeness, I should add that Mr Jay developed an argument of considerable complexity and subtlety on whether the Claimant can rely on the HRA to enforce his Convention rights under Art. 2(1) in an English court in respect of a cause of action which arose before the HRA came into force. In view of my conclusion that Art. 2(1) adds nothing to the debate, I have not felt it necessary to resolve this issue of retrospectivity.

F. The compatibility of section 10 with the Claimant’s Convention rights

It is not possible, under the ordinary canons of construction, to interpret section 10 in such a way that it does not provide the Ministry with an immunity from action or liability in the present case. Can the unique rule of construction contained in section 3(1) of the HRA enable section 10 to be read and given effect to in a way which is compatible with the Claimant’s Convention rights? The only way in which the courts could even begin to interpret section 10 so as to render it compatible with the Claimant’s Convention rights is by reading sections 10(1)(b) and 10(2)(b) as subject to an implication to the effect that the Secretary of State would only issue an appropriate certificate in certain exceptional circumstances, for example when the death or personal injury occurred in circumstances in which the claimant was exposed to a risk which was greater than could be expected of someone in comparable circumstances in civilian life. Even allowing for the court’s duty to strive for an interpretation compatible with Convention rights - not merely to the extent that “it will sometimes be necessary to adopt an interpretation which linguistically may appear strained” but also by implying provisions (per Lord Steyn in R. v. A. (No. 2) [2001] UKHL 25 at [44] - a provision of this kind is not one which can sensibly be read into section 10. Mr Jay did not argue otherwise.

Lord Steyn also said at [44] that “[a] declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise: R. v. Secretary of State for the Home Department ex p. Simms [2000] 2 AC 115, 132 A-B, per Lord Hoffmann.” This is such a case. Although section 4(2) of the HRA merely provides that the Court “may” make a declaration of incompatibility if it is satisfied that the provision is incompatible with a Convention right, there is no reason why such a declaration should not be made in the present case. A notice of the kind required by CPR 19.4A(1) had not been served, but since Mr Jay was in a position to argue fully the issue of the compatibility of section 10 with Convention rights, I made in the course of the hearing an order by consent dispensing with the notice required.

G. Conclusion

For these reasons, my conclusions on the five preliminary issues referred to at the beginning of this judgment are as follows:

(1) The Claimant is entitled to rely upon Art. 6(1) of the Convention.

(2) Section 10 of the Crown Proceedings Act 1947 prima facie infringes the Claimant’s rights under Art. 6(1) of the Convention.

(4) It is not possible to read and give effect to section 10 in a way which is compatible with the Claimant’s rights under Art. 6(1) of the Convention.

(5) It is declared that section 10 of the Crown Proceedings Act 1947 is incompatible with the Claimant’s rights under Art. 6(1) of the Convention.

For the reasons I have given, it is unnecessary for me to reach a conclusion on issue (3).