B e f o r e :
LORD PHILLIPS, MASTER
OF
THE ROLLS
LORD JUSTICE MUMMERY
and
LADY JUSTICE HALE
____________________
____________________
Mr David Pannick, QC Philip Sales and Kate Gallafent (instructed by Treasury Solicitor for the Appellant)
Mr Richard Gordon, QC and Robert Weir (instructed by Bond Pearce for the Respondent)
Mr Conor Gearty (instructed by Linder Myers appeared on behalf
of
PTSD Group Action Claimants as Intervenors)
____________________
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OF
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
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Lord Phillips MR
This is the judgment
of
the Court
Introduction
- 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
- 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.
- 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.
- 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
- 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.
- 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
.
- 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.”
- 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.”
- 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.”
- 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
- 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.”
- 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
- 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.”
- 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
- 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.”
- 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.
- 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
- 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.
- 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.
- 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’.
- 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)’.”
- 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.”
- 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.”
- 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.
- 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.”
- 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.”
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.”
- 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
- 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).
- 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.
- 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.”
- 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.”
- 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.
- 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.
- 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).”
- 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.
- 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.”
- 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.”
- 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.
- 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.
- 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’.
- 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.
- 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.”
- 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.”
- 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’.
- 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).”
- 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?
- 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.
- 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.
- 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.
- 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.”
- 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.
- 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].
- 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.
- 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.
- 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.
- 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.
- 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.”
- 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.
- 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.”
- 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.
- 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.
- 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.
- 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
- 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.”
- 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.
- 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
- 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.”
- 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.”
- 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.
- 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
- 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.
- 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
- 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.
- For the reasons that we have given, this appeal will be allowed with the result that the action must be dismissed.