Matthews (Appellant) v. Ministry of Defence (Respondents)
53. The detailed reasoning of the European Court in these cases does not provide us with much by way of guidance as to how the dividing line between these two concepts is to be identified. It is not possible to find a clear ratio in these decisions which will lead to the right result in every case. So it is better to have regard instead to the underlying principles. On this matter I have reached the same conclusion as my noble and learned friend Lord Hoffmann. One can at least say that there is a plain and obvious difference in principle between a procedural bar which impairs or restricts the enjoyment or enforcement of a right on the one hand and a substantive bar which prevents an alleged right from ever coming into existence at all. What article 6(1) seeks to do is to protect the individual against anything which restricts or impairs his access to the courts for the determination of a civil right whose existence is at least arguable. But the precise scope and content of the individual's civil rights is a matter for each state party to determine. These are the broad Convention principles. They are likely to provide the best guide as to the side of the line on which any given case lies.
The 1947 Act
54. There is no doubt that the Crown Proceedings Act 1947 was designed to make new law. Until the coming into force of that Act the Crown had been protected from liability by two rules which were deeply rooted in English law. These were the rule of substantive law that the King could do no wrong, and the procedural rule that the King could not be sued in his own courts. The product of these rules was not only that the Crown could not be sued in respect of wrongs which it had expressly authorised but that it was also immune from liability in respect of wrongs committed by Crown servants in the course of their employment.
55. Increasing concern was expressed in the early years of the last century about this anomaly. In the Scottish case of Macgregor v Lord Advocate 1921 SC 847, for example, a claim for damages by a member of the public who had been knocked down by a motor car driven by a driver in the Royal Army Service Corps in the course of his duty was dismissed as incompetent on the ground that an action of damages did not lie against the Crown in respect of a wrongful act committed by one of its servants. It was accepted, despite the meagre state of the Scottish authorities on this issue, that the English rule which had already been applied in two previous cases in the Court of Session should be accepted as part of Scots law. The position in these matters had to be the same on both sides of the border. But Lord Salvesen expressed his unease about this result at pp 852-853:
56. In 1927 a Committee presided over by Lord Hewart, initially as Attorney General and later as Lord Chief Justice, proposed that the law relating to the privileges of the Crown in litigation and its immunity from liability in tort should be reformed: Crown Proceedings Committee: Report (Cmd 2842). But this proposal was opposed by some government departments, including in particular the Post Office and the departments which were responsible for the armed services and it was not proceeded with: for a detailed account, see Joseph M Jacob, The Debates behind an Act: Crown Proceedings Reform, 1920 - 1947  PL 452. The decision in Adams v Naylor  AC 543, where the court refused to entertain a claim against a nominated army officer arising from injuries which children had sustained in a derelict minefield, gave rise to further debate on this issue. It was not long before the legislation with which your Lordships are concerned in this case was introduced. Its progress through Parliament has been described by my noble and learned friend Lord Bingham of Cornhill. I am in full agreement with him about the conclusions which are to be drawn from this history.
57. Part I of the Crown Proceedings Act 1947 is headed "Substantive Law". Part II deals with jurisdiction and procedure. Section 2, which appears in Part I of the Act, deals with the liability of the Crown in tort. The principle which was adopted in the framing of this section was that the Crown should be under the same liability in tort as if it were a private person of full age and capacity. Three areas of the common law were affected by this reform. They were torts committed by servants or agents of the Crown, duties of care owed to servants or agents by the Crown as their employer and obligations arising from the ownership, possession or control of property: see section 2(1). The same principle was applied to cases where the Crown is bound by a statutory duty which is binding also upon persons other than the Crown and its officers: section 2(2). The generality of these provisions is qualified in various ways by the following subsections. There then follow a number of other sections which are designed to define further the extent of the Crown's liability.
58. Careful attention must of course be paid to the details in order to understand the scope which was given to this new liability. It is not necessary for the purposes of this case to explore every aspect, and many of the original provisions have been removed from the 1947 Act by later legislation. Those in respect of Crown ships, Crown docks and harbours, salvage claims against the Crown and Crown rights to salvage, for example, were all repealed by the Merchant Shipping Act 1995. But the nature of the reform cannot be fully understood without observing what Parliament was enacting in Part I of the 1947 Act. As the long title of the Act indicates, this was a complete package of law relating to the civil liabilities and rights of the Crown. The area in which it was operating is one which is regarded by the European Court for the purposes of article 6(1) as the exclusive responsibility of domestic law.
59. The main exceptions that ought to be noted, as well as that relating to the armed forces, are those relating to the discharge of judicial functions and to the Post Office. Section 2(5) provides that no proceedings shall lie against the Crown in respect of the acts or omissions of any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him or which he has in connection with the execution of judicial process. Here one finds an undoubted immunity which has the effect of excluding all actions falling within its scope from the jurisdiction of the courts. But it would be wrong to regard this provision as "removing" a class of claim from the court's jurisdiction or as "creating" an immunity from a liability which had previously been recognised. Mr Gordon QC for the appellant quite rightly accepted that this provision was an integral part of the overall package of substantive law, and that it fell clearly on that side of the dividing line. So too in the case of the immunity given to the Post Office by section 9, which it continued to enjoy until it was repealed by the Post Office Act 1969 when the Post Office ceased to be a government department and became an independent corporation: see now the Postal Services Act 2000, sections 90 and 91. The effect of this provision was that neither the Crown or an officer of the Crown could be held liable for any act or omission in relation to an unregistered postal packet. There is no doubt that this exception also was a matter of substantive law, not procedure.
60. Section 10 of the 1947 Act too is to be found in Part I of the Act. Its effect is to prevent members of the armed forces from suing the Crown or other members of the armed forces for damages in tort for death or personal injury. At first sight the immunity which it gives to the Crown in respect of members of the armed forces falls into precisely the same pattern as the immunities which were given to those discharging duties of a judicial nature and to the Post Office. It appears to form part of the overall package of substantive law. But the section requires more careful study in view of the conditions mentioned in subsections (1)(b) and (2)(b), the fulfilment of which depends upon the issuing by a minister of a certificate. It is that aspect of the section which is said by the appellant to distinguish it from the other exceptions which are accepted as being part of the substantive law and to impress this immunity instead with a procedural character.
61. Section 10 contains three subsections. Subsection (1) deals with the liability of the Crown and members of its armed forces in respect of torts committed by them while on duty causing death or personal injury to another person while he is a member of the armed forces of the Crown. Subsection (2) deals with the liability of the Crown for death or injury due to anything suffered by a member of the armed forces of the Crown in consequence of the nature or condition of property, including ships, aircraft and vehicles, used for the purposes of the armed forces. Subsection (3) enables the Crown to deal with certain evidential matters by means of a certificate of a Secretary of State which is to be conclusive evidence of the fact which it certifies: see also provisions to the same effect in sections 11(2) and 40(3).
62. The appellant's complaint is that he was required to work on board ship in boiler rooms where boilers and pipes had been lagged with asbestos from which asbestos fibres and dust were dissipated into the air. So it appears that subsections (1) and (2) are both in issue in his case. They both have the same basic structure. They both begin with a declaration of immunity in respect of death or personal injury suffered by a member of the armed forces of the Crown. These provisions are then qualified by two conditions, each of which must be fulfilled if that immunity is to apply. The first condition in each subsection relates to the state of the facts at the time of suffering the thing causing the death or personal injury. Subsection (1)(a) makes it a condition of the immunity that the person killed or injured was on duty as a member of the armed forces at the time or was on property for the time being used for the purposes of the Crown. Subsection (2)(a) makes it a condition of the immunity that the property, equipment or supplies in consequence of whose nature or condition the thing causing death or personal injury was suffered was for the time being used for the purposes of the armed forces. Mr Gordon accepts that, had it not been for the further condition about the Secretary of State's certificate, it would have been plain that these provisions formed part of the substantive law relating to the scope or extent of the immunity.
63. The argument that section 10 is incompatible with article 6(1) depends therefore entirely on the presence in this section of the conditions set out in subsections (1)(b) and (2)(b). Subsection (1)(b), as amended, is satisfied, in the case of the death or injury of a member of the armed forces due to a thing suffered by him while on duty as such or while on property for the time being used for the purposes of the armed forces, if:
Subsection (2)(b) follows the same pattern. It is satisfied if:
The section 10(1)(b) certificate
64. The background to the wording of this provision lies in the fact that it had been the practice for many years for pensions and other grants to be paid to disabled members of the armed forces and their widows, children and other dependants under a series of Royal Warrants, Orders in Council and Orders of His Majesty. Provision was made by Royal Warrant to enable this to be done in respect of service during the period from 4 August 1914 to 30 September 1921. The system which was current at the time of the enactment of the 1947 Act in regard to death or disablement in consequence of service during the 1939 World War was that described in the Royal Warrant of 12 April 1946 (Cmd 6799) as amended by the Royal Warrant of 8 May 1947 (Cmd 7124).
65. It was a basic condition of an award under these warrants that the disablement or death of a member of the military forces was due to war service: see article 3 of the Royal Warrant of 1946. Entitlement to an award depended on certification that the disablement was due to a wound, injury or disease attributable to or aggravated by war service or that the death was due to or was hastened by such a wound, injury or disease. Where a disablement was claimed or death took place not later than seven years after the end of war service there was no onus of the claimant to prove that the conditions for entitlement were fulfilled: article 4. In cases falling outside the seven year period entitlement had to be proved by reliable evidence: article 4A. Similar provisions are to be found in the current Order in Council, which is the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983 (SI 1983/883), articles 3, 4 and 5. The benefit of the scheme is now available in any case where death or disability is due to service as a member of the armed forces at any time after 2 September 1939.
66. Claims for a war pension under the scheme are made in the first instance to the minister. If the claim is rejected by the minister on certain grounds, including the ground that the disablement or death was not attributable to war service, an appeal may be made to a Pensions Appeal Tribunal on the issue whether the claim was rightly rejected on that ground: Pensions Appeal Tribunals Act 1943, section 1. When the 1947 Act was enacted the relevant minister was the Minster of Pensions. Sections 10(1)(b) and 10(2)(b), as originally enacted, provided that the certificates to which they refer were to be given by him. But as a result of a series of subsequent amendments references to the Secretary of State were later substituted. The war pensions functions are now vested in the Secretary of State: The Transfer of Functions (War Pensions etc) Order 2001 (SI 2001/3506), article 2.
67. The important point to notice, for a proper understanding of the function of sections 10(1)(b) and 10(2)(b), is that Secretary of State who is required under these provisions to certify that the thing that caused the disablement or death has been or will be treated as attributable to service for the purposes of entitlement to an award under the war pensions scheme and the minister who is responsible for administering the scheme are one and the same. The effect of the Secretary of State's certificate is to provide the claimant with a guarantee that the condition of entitlement under the scheme for which he himself is responsible has been or will be treated as satisfied.
68. The fact that the Secretary of State has issued a certificate under section 10(1)(b) is no guarantee that the person in respect of whose case it is issued will be awarded a pension: Adams v War Office  1 WLR 1116. It does not bind the minister by whom the scheme is administered to pay a pension to the claimant under the scheme. This is because a pension can be awarded only if all the relevant conditions are satisfied. As Sir John Donaldson MR said in Bell v Secretary of State for Defence  QB 322, 328, the Secretary of State's certificate is not required to state that an award will be paid under the Order in Council. All it has to state is that the basic condition for an award is satisfied. That this is so is demonstrated by the facts in the present case. The Secretary of State issued a certificate under section 10(1)(b) on 11 March 2002 that the appellant's suffering of exposure to asbestos "will be treated as attributable to service" for the purposes of entitlement to an award under the scheme. But the appellant accepts that his medical condition is unlikely to be considered to be sufficient disablement under the current scheme to entitle him to a pension as the pleural plaques which he has developed are relatively symptomless.
69. The certificate is not however without some value to the claimant. In Bell v Secretary of State for Defence  QB 322 the father of a serviceman sought damages for the death of his son. The defendant then issued a certificate that the son's death would be treated as attributable to service for the purposes of entitlement to a pension under the pension scheme. The certificate was held to be a valid certificate notwithstanding the fact that there was no person who was immediately entitled to a pension. Balcombe LJ said at p 333F-G:
70. The question is whether the effect of sections 10(1)(b) and 10(2)(b) is to impose a procedural bar on the appellant's right to claim damages under section 2 of the 1947 Act, or whether it qualifies the section 2 right from the outset as a matter of substantive law.
71. I do not think that this question should be answered by examining these provisions in isolation, without regard to the overall context in which they were enacted. In isolation section 10(1)(b) and (2)(b) might be thought to leave it to the option of the Secretary of State to accept or to repudiate liability as he pleases - the very thing to which Lord Salvesen took exception in Macgregor v Lord Advocate 1921 SC 847, 852-853. If that were so, there would be much to be said for the view that these provisions were procedural in character because they enabled the Secretary of State to remove a claim which was otherwise actionable in law from the jurisdiction of the courts. Viewed in the overall context however these provisions can be seen to have an entirely different function which impresses them firmly with the character of substantive law.
72. The overall context is provided by the fact that section 10 falls within the same Part of the Act as section 2. Section 2, by which the basic rules for the Crown's liability in tort are laid down, is expressed to be "subject to the provisions of this Act". Section 10 is an integral part of the overall scheme of liability which is described in Part I of the Act. This was all new law. None of the provisions in this Part which preserved the Crown's immunity from suit in particular cases could be said, when the legislation was enacted, to be removing from anybody a right to claim which he previously enjoyed.
73. As for section 10 itself, an examination of its provisions shows that, if the state of the facts is such as to satisfy condition (a) in each of the two relevant subsections, it must follow that the suffering of the thing in question is attributable to service for the purposes of entitlement to an award under the pension scheme. Condition (b) adds nothing to the factual circumstances giving rise to the immunity. The function of the certificate to which condition (b) refers is to bridge the gap which might otherwise emerge between the tort claim and the pension scheme. It proceeds on the assumption that if a claim is made under section 2 of the Act the Secretary of State will have to form a view, on the facts, as to whether or not the case is covered by the immunity. The Secretary of State is told that he cannot have it both ways. He is not allowed to assert the immunity without making a statement in the form of a certificate in the terms which the condition lays down. This has the effect of preventing him, as the minister responsible for the administration of the war pension scheme, from contesting the issue whether the suffering of the thing was attributable to service for the purposes of entitlement to an award under that scheme. This is a matter of substantive law. It is an essential part of the overall scheme for the reform of the law which the 1947 Act laid down. It does not take anything away from the claimant which he had before. On the contrary, it has been inserted into the scheme of the Act for his benefit.
74. For these reasons, and for the reasons given by my noble and learned friend Lord Walker of Gestingthorpe whose speech I have had the advantage of reading in draft and with which I am in full agreement, I would hold that section 10 of the 1947 Act creates a substantive limitation on the right to sue the Crown in tort under section 2 which, had section 10 not been enacted, would otherwise be available. The condition about the Secretary of State's certificate forms part of the substantive law. It is not a procedural limitation, so it is not incompatible with article 6(1) of the Convention. I would dismiss the appeal.
75. In March 2001 Mr Matthews brought proceedings against the Ministry of Defence for damages for negligence. He alleged that he had suffered personal injury as a result of exposure to asbestos fibres and dust while acting in the course of his duties during his service in the Royal Navy between 1955 and 1968. In due course the Secretary of State issued a certificate under section 10(1)(b) of the Crown Proceedings Act 1947 ("the Act") certifying that, in so far as Mr Matthews' injuries were due to anything suffered by him as a result of exposure to asbestos during his service in the Royal Navy, it would be treated as attributable to service for the purposes of an award of a service pension. The effect of the certificate was to deprive Mr Matthews of his claim to damages, and accordingly the Court of Appeal, reversing the decision of the trial judge and upholding the validity of the certificate, dismissed the action.
76. The question for your Lordships is whether section 10 of the Act is compatible with article 6(1) of the European Convention of Human Rights. Mr Matthews says that it is not, because it has the effect of depriving a serviceman, by the fiat of the executive, of his Convention right to have his civil claim determined by an independent and impartial tribunal.
77. Article 6(1) protects the individual's access to the courts for the determination of his civil rights; it does not affect the democratic power of the state to determine the scope of those rights. It is a constantly repeated principle of the case law of the Strasbourg court that article 6(1) applies only to the determination of "civil rights and obligations" which can be said, at least on arguable grounds, to be recognised under national law; it does not itself guarantee any particular content for such rights and obligations in the substantive law of a contracting state: see for example Z v United Kingdom (2001) 34 EHRR 97, 134 - 135, 137, paras 87, 98.
78. Whether a person has an actionable claim may, however, depend not only on the existence and content of the civil right in national law, but also on the existence of exclusionary rules or procedural bars which prevent or restrict his right to have his claim judicially determined. In Fogarty v United Kingdom (2001) 34 EHRR 302, 310, para 25 the Strasbourg court observed:
79. The distinction between limits to the substantive content of the law and procedural bars to a judicial remedy is not an easy one to draw. It cannot be made to depend upon the drafting technique employed in the domestic legislation of the state concerned without opening the door to evasion of the Convention rights. Nor can the problem be resolved by invoking the word "immunity", for the question is whether the national law creates immunity from liability or merely immunity from suit. It is best to avoid a formalistic approach and inquire whether the rule which bars the claim is of general application and is independent of the facts which found the claim. Often the answer can be found by tracing the history of the domestic rule and examining the underlying policy to which it gives effect. It is, perhaps illogically, easier to treat restrictions on a newly created legal right as limitations of substantive law than to accord the same treatment to the withdrawal of existing legal rights. On the other hand the European Commission has had no problem with the substitution of a no-fault pension entitlement for a fault-based right to compensation for tort: see Pinder v United Kingdom (1984) 7 EHRR 464.
80. In the present case the solution can be found by examining the history of the Crown's liability in tort in English law and the function of the Secretary of State's certificate.
81. Before 1947 the scope of the English law of torts was significantly narrower than it is today. It was a long established principle of our constitutional law that the King could do no wrong. It followed that the Crown was not liable in tort. Even where the defendant was a private employer, the doctrine of common employment, which was a feature of our employment law, meant that an employee had no cause of action for injury sustained as a result of the negligence of a fellow employee of the same employer. Both principles seem archaic today. But neither was procedural in character. There was simply no legal liability in either case.
82. At the end of the First World War, therefore, the serviceman who suffered injury due to the fault of the Crown or of a servant of the Crown had no right to damages, but in this respect he was in no worse position than anyone else who suffered injury as a result of the negligence of the Crown or of a fellow employee of the same employer. Since 1919 the harshness of these rules has been progressively alleviated by piecemeal legislation.