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You are here: BAILII >> Databases >> European Court of Human Rights >> Roche v United Kingdom - 32555/96 (Grand Chamber) [2005] ECHR 956 (19 October 2005) URL: http://www.bailii.org/eu/cases/ECHR/2005/956.html Cite as: CE:ECHR:2005:1019JUD003255596, (2006) 42 EHRR 30, 42 EHRR 30, [2005] ECHR 956, ECLI:CE:ECHR:2005:1019JUD003255596 |
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GRAND CHAMBER
CASE OF ROCHE v. THE UNITED KINGDOM
(Application no. 32555/96)
JUDGMENT
STRASBOURG
19 October 2005
In the case of Roche v. the United Kingdom,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Mr L. Wildhaber,
President,
Mr C.L. Rozakis,
Mr G. Ress,
Sir Nicolas Bratza,
Mr L. Caflisch,
Mr L.
Loucaides,
Mr I. Cabral Barreto,
Mrs V. Strážnická,
Mr P. Lorenzen,
Mr J. Casadevall,
Mr B. Zupančič,
Mr J. Hedigan,
Mrs W. Thomassen,
Mr A.B. Baka,
Mr R. Maruste,
Mr K. Traja,
Mr S. Pavlovschi,
judges,
and Mr T.L. Early,
Deputy Grand Chamber Registrar,
Having deliberated in private on 20 October 2004 and 7 September 2005,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
There appeared before the Court:
(a) for the Government
Mr J. Grainger, Agent,
Mr J. Eadie, Counsel,
Mr S. Cave,
Mr G. Regan, Advisers;
(b) for the applicant
Mr R. Gordon QC,
Ms J. Stratford,
Mr F. Pilbrow, Counsel,
Mr J. Welch,
Ms J. Drane, Solicitors,
Ms V. Wakefield, Adviser.
The Court heard addresses by Mr Gordon and Mr Eadie as well as their answers to questions put by judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
In 1981 he was diagnosed as suffering from hypertension and late onset bronchial asthma and in 1989 he was found to have high blood pressure and chronic obstructive airways disease (bronchitis - COAD). He has not worked since 1992 or thereabouts and is registered as an invalid.
A. The Porton Down tests
1. The tests in 1962 at Porton Down
2. The tests in 1963 at Porton Down
The Government added the following detail: the mustard gas test was designed to test the performance of protective clothing and was carried out in two parts. The first was a sensitivity test to determine an individual's sensitivity to mustard gas and it involved the placement of a dilute solution of the gas on the participant's upper arm. If after twenty-four hours the test subject had a small red mark, he or she was deemed too sensitive and did not participate any further in the tests. On the other hand, if the participant was not demonstrably sensitive, the second part consisted of putting a drop of dilute mustard gas solution on three samples of protective clothing left in place on the participant's body and the skin under the clothing was examined after six and then twenty-four hours. The participants were monitored before and after the tests. The rooms were properly ventilated, the dosages were small and safe and the tests were carefully planned and controlled.
B. The applicant's search for relevant records
1. The “medical” route
2. The “political” route
Certain copies of test documents were enclosed: (a) the alphabetical record book which recorded the applicant's attendance at Porton Down between 13 and 19 July 1963; (b) the summary record book which referred to the two tests carried out on the applicant involving GF and mustard gas and listed the monitoring procedures that were to be carried out on the applicant (chest X-rays, peak flow meter tests, “x 3 x alcohol” quiz, breath-holding tests and blood tests); and (c) a report entitled “Effects of Inhaled GF on Man” which described the single breath GF test and contained an analysis of the results of the tests carried out on fifty-six participants, believed to include the applicant's test. It was indicated that these documents were available to any test participant who requested them.
This was the first material obtained by the applicant about his participation in the tests.
The letter went on to note that much GF-related research work had already been published in open literature or was in the Public Record Office. The review of files to be disclosed would continue and the applicant was given a list of all relevant research papers already published between 1957 and 1987. There was no evidence to date to suggest that any volunteer had suffered long-term adverse effects. A full independent and long-term study of the health impacts of test participation was not, however, considered feasible or practical so none had been or would be carried out.
C. Records submitted by the Government in the present application
1. With the Government's observations of 9 March 1998
2. With the Government's observations of 5 April 2001
D. The applicant's domestic proceedings
1. Application for a service pension
2. Certificate under section 10 of the Crown Proceedings Act 1947 (“the 1947 Act”)
“War Pensions Agency has informed me that a section 10 certificate in respect of acute bronchitis (1963), a bruised knee and loss of hearing will be regarded as attributable to service and a section 10 certificate will be issued. The other ailments for which [the applicant] claimed a war pension have not been regarded as attributable to service.”
“In so far as the personal injury of [the applicant] is due to anything suffered as a result of his service in the Army between 16 February 1954 and 2 April 1968, I hereby certify that his suffering that thing has been treated as attributable to service for the purpose of entitlement to an award under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983, which relates to disablement or death of members of the Army.”
3. The Pensions Appeal Tribunals (“the PAT”)
“The [PAT] are deeply disturbed that this application has proved necessary as a result of the [applicant's] advisers' failure to consider documents disclosed over a year ago, in a timely fashion.
However, since the [VA] also appear to be without documentation and there is confusion by the [applicant] as to whether he also wishes to appeal for hypertension, we have reluctantly decided to allow the adjournment.
It is highly unsatisfactory that Court resources have been wasted in this way. To prevent this happening in the future the Tribunal intend to exercise some control over the ongoing progress of the appeal.”
The PAT was to clarify with the MOD the status of certain classified documents and the extent to which they could be released to the public, and directed the MOD to provide, by 21 October 2002, disclosure of further documents. The MOD, the VA and the applicant were to notify the PAT by 18 November 2002 of the questions and documents it wanted Dr H. to examine. It was intended that the PAT would add its own questions and submit a composite questionnaire to Dr H. who would report in response to the PAT. The applicant was also to confirm his position as regards the hypertension appeal by 28 October 2002.
“1. We find that [the applicant] suffered no long-term respiratory effect from skin contact with mustard gas following both tests in 1962 and 1963.
2. We find that [the applicant] was administered only small doses of mustard gas and GF gas which would have resulted in minimal exposure to mustard gas by off-gassing and a limited and transitory reaction to the GF gas. Although no records relating to doses exist, the mustard gas tests were designed to test the suitability of military clothing to exposure and were not a gas test per se. Furthermore, after a fatality at Porton Down in 1953, safeguards were put in place to ensure that volunteers were only exposed to safe dosages.
3. The compelling weight of the evidence is that [the applicant] did not receive, in any of the tests, dosages likely to have long-term effects as described in the research papers. In particular, the [PAT expert], although accepting the possibility that given further research through a long-term follow-up study a link might be found, concludes that there is no evidence to link [the applicant's] exposure to either gases with his present condition. We accept [the PAT expert's] conclusion that, given the limited doses and [the applicant's] minimal immediate reactions, this would rule out a link between the tests and the claimed conditions.
4. We particularly rely on [Dr H.'s] expert report. He has analysed the specific data relevant to [the applicant's] case and considered the conditions for which he is claiming in relation to that specific data. The research papers relied on by the [applicant], although of some evidential value, are very general and speculative. We therefore prefer the evidence, and the conclusions reached by [Dr H.] in his reports.”
The PAT also accepted, as a matter of law, that it was sufficient to show that the proved service event was only one of the causes of the condition even if there were other contributory factors. However, it stated:
“2. We do not accept that the lack of possible evidence of other follow-up tests is sufficient to constitute reliable evidence.
3. We find that there is some reliable evidence surrounding the Porton Down tests for which [the applicant] volunteered. However, this evidence tends, if anything, to support the view that there is in fact no link between those tests and [the applicant's] current conditions. The test of reasonable doubt is not therefore met.
4. There is no reliable evidence to suggest a causal link between the tests for either mustard gas or GF gas and the claimed condition.
5. [The PAT expert's] views that 'he cannot exclude the possibility' of a link between exposure to GF and/or mustard gas and the claimed condition, does not meet the 'reasonable doubt' test. Furthermore, he 'rules out' exposure to GF as a cause and deems it 'unlikely' that mustard gas is a cause.
6. Finally, [the applicant's counsel] invites us to allow the appeal for reasons which can be summarised as 'general fairness'. The [PAT] does not have legislative or discretionary power to do so. The decision of the [PAT] is to disallow the appeal for [COAD].”
E. Information services and health studies
“On a clinical basis, no evidence was found to support the hypothesis that participation in Porton Down trials produced any long-term adverse health effects or unusual patterns of disease compared to those of the general population of the same age.”
In or around 2004-05 a non-governmental organisation (“Porton Down Veterans”) discovered during searches in the Public Record Office two letters of May and August 1953 containing legal advice from the Treasury Solicitor to the MOD about Mr Maddison's case and about section 10 of the 1947 Act. That organisation sent this material to the Veterans Policy Unit - Legacy Health Issues of the MOD on 7 February 2005. The Treasury Solicitor's letter of August 1953 noted as follows:
“When the case was referred to me previously I did consider the relevance of section 10 of the Crown Proceedings Act 1947 but I came to the conclusion that it had no application. On the information before me I am still of that opinion. Subsection (1) of that section, which deals with injuries caused by acts of members of the Armed Forces, can have no application since the administration of the GB gas to ... Maddison was (so I understand) carried out by [civilian] personnel and not by any member of the Armed Forces. Subsection (2) also seems inapplicable. [It] provides that no proceedings in tort are to lie against the Crown for death or personal injury due to anything suffered by a member of the Armed Forces if that thing is suffered by him 'in consequence of the nature or condition of any equipment or supplies used for the purposes of the Armed Forces of the Crown'. As I understand the facts of this case, GB gas cannot be said to be a 'supply used for the purposes of the Armed Forces' at all, it being purely an experimental substance and one which has never been used for the purposes of the Armed Forces. If this is correct, then section 10 of the 1947 Act cannot protect the Crown or the Minister from liability.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Civil actions by servicemen against the Crown
1. Prior to 1947
“Except as therein otherwise expressly provided, nothing in this Act shall-
...
(g) entitle any member of the armed forces of the Crown to make a claim against the Crown in respect of any matter relating to or arising out of or in connection with the discipline or duties of those forces or the regulations relating thereto, or the performance or enforcement or purported performance or enforcement thereof by any member of those forces, or other matters connected with or ancillary to any of the matters aforesaid ...”
2. The Crown Proceedings Act 1947 (“the 1947 Act”)
“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.”
“(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 purpose of this section, be conclusive as to the fact which it certifies.”
The words in section 2 of the 1947 Act “subject to the provisions of this Act” rendered section 2 subject to the provisions of section 10 of the 1947 Act.
3. The Crown Proceedings (Armed Forces) Act 1987 (“the 1987 Act”)
“Successive Governments have resisted retrospective legislation as a basic concept, especially where such legislation imposes a retrospective liability on others. Secondly, it would be clearly wrong to impose retrospective liability on a serviceman 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 [for] which, at the time they were committed, they were not liable under the law. That is a strong argument against retrospective legislation. Thirdly, ... 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 [MOD] or the courts. How could those whose claims which fell on the wrong side of the arbitrary line be satisfied? How could the [MOD], and ultimately the courts, be expected to assess old cases where the necessary documentary evidence or witnesses are no longer available?
Those are practical questions 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.”
4. The Limitation Act 1980
B. The case of Matthews v. Ministry of Defence
1. The High Court's judgment of 22 January 2002 ([2002] EWHC 13 (QB))
“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.”
In concluding that section 10 amounted to a procedural bar to an existing right of action in tort and in thus finding Article 6 applicable, the High Court relied, in particular, on Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (judgment of 10 July 1998, Reports 1998-IV) and Fogarty v. the United Kingdom ([GC], no. 37112/97, ECHR 2001-XI).
2. The Court of Appeal's judgment of 29 May 2002 ([2002] EWCA Civ 773)
“The requirement in section 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.”
3. The House of Lords' judgment of 23 February 2003 ([2003] UKHL 4)
Lord Bingham went on to outline the historical evolution of section 10, considering it clear that there was no parliamentary intention to confer any substantive right to claim damages. “Few common-law rules were better-established or more unqualified”, he began, “than that which precluded any claim in tort against the Crown” and because “there was no wrong of which a claimant could complain (because the King could do no wrong) relief by petition of right was not available”. Claims referred to as “exempted claims” against the Crown for damages for, inter alia, injury sustained by armed forces personnel while on duty were “absolutely barred”. When proposals for reform were put forward in the 1920s, “no cause of action was proposed in relation to the exempted claims”. When the Crown Proceedings Bill was introduced into Parliament in 1947 it again provided that the exempted claims should be “absolutely barred”, but those fulfilling the qualifying condition would be compensated by the award of a pension on a no-fault basis.
When what was to become section 10(1) was amended uncontentiously in the House of Commons, the intention was not to alter the “essential thrust of the provision as previously drafted”. The object of the new certification procedure was to “ease the path of those denied any right to a common-law claim towards obtaining a pension, by obviating the need to prove attributability, an essential qualifying condition for the award of a pension”. Whereas the issue of a certificate under section 10(3) of the 1947 Act was discretionary as shown by the permissive “may”, no such permissive language applied to the issuance of a certificate under section 10(1)(b). “It was plainly intended that, where the conditions were met, the Secretary of State should issue a certificate as was the invariable practice of successive Secretaries of State over the next forty years.” Although different language had been used over the years, “the English courts had consistently regarded section 10(1) as precluding any claim at common law”. It was in fact the “absolute nature of the exclusion imposed by section 10(1)” (coupled with the discrepancy, by 1987, between the value of a pension and of a claim for common-law damages) which fuelled the demand for the revocation of section 10 and led to the 1987 Act. In deciding whether section 10(1) imposed a procedural bar or denied any substantive right, regard had to be had to the practical realities and, in that respect, the Secretary of State's practice had been “uniform and unvarying” so that any practitioner would have advised Mr Matthews that a section 10 certificate was “bound to be issued”. Lord Bingham found Fogarty to be “categorically different” from Matthews and concluded, for reasons closely reflecting those of the Court of Appeal and of Lord Walker (see below), that the appeal was to be rejected.
“127. The distinction between substantive and procedural bars to a judicial remedy has often been referred to in the Strasbourg jurisprudence on Article 6 § 1, but the cases do not speak with a single clear voice. That is hardly surprising. The distinction, although easy to grasp in extreme cases, becomes much more debatable close to the borderline, especially as different legal systems draw the line in different places ...
...
130. I have already referred to several of the most important Strasbourg cases, but it is useful to see how two contrasting themes have developed since the seminal Golder decision in 1975. Some cases emphasise the importance of avoiding any arbitrary or disproportionate restriction on a litigant's access to the court, whether or not the restriction should be classified as procedural in nature. Others attach importance to the distinction between substance and procedure.
131. The first case to note is Ashingdane v. the United Kingdom ... Section 141(1) [of the Mental Health Act 1959] imposed substantive restrictions on his rights of action (requiring bad faith or negligence) and subsection (2) imposed a procedural restriction (the need for the Court's permission for the commencement of proceedings). The Commission ... agreed with the parties that 'it is immaterial whether the measure is of a substantive or procedural character. It suffices to say that section 141 acted as an unwaivable bar, which effectively restricted the applicant's claim in tort'. But the Commission considered that the restrictions were not arbitrary or unreasonable, being intended to protect hospital staff from ill-founded or vexatious litigation. The Court ... took a similar view.
132. In Pinder v. the United Kingdom ... (from which Ketterick and Dyer are not significantly different) the Commission took the view ... that section 10 of the 1947 Act brought about the substitution of a no-fault system of pension entitlement for the right to sue for damages, and that that removed the claimant's civil right: '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.' However the Commission then ... referred to its report in Ashingdane and stated: '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 section 10 of the 1947 Act constitutes an arbitrary limitation of the applicant's substantive civil claims.'
133. The Commission held that section 10 was not arbitrary or disproportionate ...
134. Powell and Rayner v. the United Kingdom ... was concerned with the effect of section 76(1) of the Civil Aviation Act 1982 on persons complaining of noise from aircraft travelling to and from Heathrow Airport. Section 76(1) excludes liability for any action in trespass or nuisance so long as the height of the aircraft was reasonable in all the circumstances, and its flight was not in breach of the provisions of the Act or any order made under it. In unanimously rejecting the claimants' claim under Article 6 § 1 the European Court of Human Rights simply relied on the fact that the applicants had no substantive right to relief under English law. It rejected a subsidiary argument that the claimants' residuary entitlement to sue (in cases not excluded by section 6(1)) was illusory.
135. The Court's approach in Fayed v. the United Kingdom ... was much less straightforward. ... The Court's discussion of the relevant principles contained ... the following passage ...: 'Whether a person has an actionable domestic claim may depend not only on the substantive content, properly speaking, of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court. In the latter kind of case Article 6 § 1 may have a degree of applicability. Certainly the Convention enforcement bodies may not create by way of interpretation of Article 6 § 1 a substantive civil right which has no legal basis in the State concerned. However, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 - namely that civil claims must be capable of being submitted to a judge for adjudication - if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons.'
136. It is hard to tell how far the last sentence of this passage goes. The Court then referred ... to the distinction between substantive and procedural restrictions: '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.' The Court did not go any further in attempting to resolve this problem on the ground that it might in any case have had to consider issues of legitimate aim and proportionality for the purposes of Article 8 (respect for private life), even though there was in fact no complaint under Article 8.
137. In Stubbings v. the United Kingdom ... and Tinnelly & Sons Ltd v. the United Kingdom ..., the Court considered whether restrictions on access to the court (in section 2 of the Limitation Act 1980 and section 42 of the Fair Employment (Northern Ireland) Act 1976 respectively) were justifiable without adverting expressly to the distinction between substantive and procedural bars. In Waite and Kennedy v. Germany ..., the Commission ... described the immunity as merely a procedural bar, and as such requiring justification. The Court took the same view, regarding ... the claimants' access to some unspecified procedures for alternative dispute resolution as being a material factor.
138. The two most recent cases are of particular importance. In Z [and Others] v. the United Kingdom ..., the Court ... held that there had been no breach of Article 6 § 1 in your Lordships' decision in X v. Bedfordshire County Council [1995] 2 AC 633 as to the responsibility of a local authority for children who had suffered neglect and abuse over a period of five years while their suffering was known to the local authority (but they were not the subject of any care order). ... The whole of the Court's judgment on Article 6 § 1 ... merits careful study, but its essence appears from the following passages ...: ... 'The Court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. There was no restriction on access to court of the kind contemplated in the Ashingdane judgment.' In reaching these conclusions the majority of the Court stated in plain terms that its decision in Osman had been based on a misunderstanding of the English law of negligence.
139. Finally there is Fogarty v. the United Kingdom ... That case was decided about six months after Z and by a constitution of the Court several of whose members had sat (and some of whom had dissented) in Z. In Fogarty the Court repeated verbatim ... the passage from Fayed which I have already quoted. It rejected ... the United Kingdom's argument that because of the operation of State immunity the claimant did not have a substantive right under domestic law. The Court attached importance to the United States' ability to waive (in fact the judgment said 'not choose to claim') immunity as indicating that the bar was procedural. Nevertheless, the Court concluded ... that: 'measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 § 1. Just as the right of access to court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity.'
140. In trying to reconcile the inconsistencies in the Strasbourg jurisprudence it might be tempting to suppose that the Court's wide and rather speculative observations in Fayed (which were not its grounds for decision) marked a diversion which proved, in Z, to be a blind alley. But that explanation immediately runs into the difficulty that in Fogarty, six months after Z, the Court (constituted by many of the same judges) chose to repeat, word for word, the observations made in Fayed. The uncertain shadow of Osman still lies over this area of the law.
141. Nevertheless [Mr Matthews' counsel] conceded that in order to succeed on the appeal, he had to satisfy your Lordships that section 10 of the 1947 Act constituted a procedural bar. He equated this task with satisfying your Lordships that Mr Matthews had at the commencement of his proceedings a cause of action against the [MOD], and that that cause of action was cut off (or defeated) by the [MOD's] invocation of the section 10 procedure. He treated this event as indistinguishable from the United States government's invocation, in Fogarty, of the defence of State immunity (to be precise, its decision not to waive State immunity). In each case, [Mr Matthews' counsel] argued, the defendant was relying on a procedural bar to defeat a substantive claim which was valid when proceedings were commenced.
142. In my view, [Mr Matthews' counsel's] concession was rightly made. Although there are difficulties in defining the borderline between substance and procedure, the general nature of the distinction is clear in principle, and it is also clear that Article 6 is, in principle, concerned with the procedural fairness and integrity of a State's judicial system, not with the substantive content of its national law. The notion that a State should decide to substitute a no-fault system of compensation for some injuries which might otherwise lead to claims in tort is not inimical to Article 6 § 1, as the Commission said in Dyer ... (in a report, specifically dealing with section 10 of the 1947 Act, which has been referred to with approval by the Court in several later cases).
143. In the circumstances [Mr Matthews'] argument clings ever more closely to the bare fact that Mr Matthews had a cause of action when he issued his claim form, and that his claim could not be struck out as hopeless unless and until the Secretary of State issued a certificate under section 10. But European human rights law is concerned, not with superficial appearances or verbal formulae, but with the realities of the situation (Van Droogenbroeck v. Belgium ...). [Mr Matthews'] argument does, with respect, ignore the realities of the situation. It is common ground that the Secretary of State does in practice issue a certificate whenever it is (in legal and practical terms) appropriate to do so. He does not have a wide discretion comparable to that of a foreign government in deciding whether or not to waive State immunity (which may be by no means a foregone conclusion, especially in politically sensitive employment cases). The decision whether or not to waive immunity in Fogarty really was a decision about a procedural bar, but I am quite unpersuaded that it provides a parallel with this case. The fact is that section 10 of the 1947 Act did in very many cases before 1987, and still does in cases of latent injury sustained before 1987, substitute a no-fault system of compensation for a claim for damages. This was and is a matter of substantive law and the provision for an official certificate (in order to avoid or at least minimise the risk of inconsistent decisions on causation) does not alter that. Section 10(1)(b), taken on its own, is a provision for the protection of persons with claims against the [MOD]. I respectfully agree with Lord Bingham's analysis of the legislative history of the 1947 Act and with the conclusions which he draws from it.
144. In these circumstances I do not consider it necessary or desirable to attempt to assess whether section 10, if tested as a procedural bar, would meet the test of proportionality. There would be serious arguments either way and as it is not necessary to express a view I prefer not to do so.”
“72. The overall context is provided by the fact that section 10 falls within the same Part [I] 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, ... [i]t 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.”
Lord Hope concluded, in full agreement with the reasons expressed by Lord Walker, that section 10 amounted to a substantive limitation on the right to sue the Crown in tort.
“If the serviceman brought proceedings against the Crown for damages, the question at once arose whether his injury was sustained in circumstances which qualified him for a pension, for if it was the Crown was not liable in damages. Sometimes the Secretary of State had already conceded, or the Tribunal had already found, that whatever the serviceman claimed to be the cause of his injury was attributable to service in the armed forces of the Crown. If so he would grant a certificate to that effect and the action would be struck out on the ground that it disclosed no cause of action.
... In such circumstances the Secretary of State had no discretion whether to grant or withhold a certificate. He was called on to certify an existing state of facts which prevented the proceedings from having any chance of success. It was his duty as a public servant to ascertain the facts and certify or not accordingly.”
Lord Millett considered it plain that the section 10 certificate did not operate as a procedural bar to prevent the serviceman from having his civil right judicially determined. As regards Fogarty, and unlike the other Law Lords, he considered that immunities claimed by a State which conformed to generally accepted norms of international law fell outside Article 6 entirely. For the reasons outlined by each of their Lordships with which he agreed, he would also dismiss the appeal.
C. Service pensions
1. Entitlement to a service pension
2. The procedure for pension claims and appeals
3. Disclosure of documents before the PAT
“(1) Where for the purposes of his appeal an appellant desires to have disclosed any document, or part of any document, which he has reason to believe is in the possession of a government department, he may, at any time not later than six weeks after the Statement of Case was sent to him, apply to the President for the disclosure of the document or part and, if the President considers that the document or part is likely to be relevant to any issue to be determined on the appeal, he may give a direction to the department concerned requiring its disclosure (if in the possession of the department) in such manner and upon such terms and conditions as the President may think fit:
...
(2) On receipt of a direction given by the President under this rule, the Secretary of State or Minister in charge of the government department concerned, or any person authorised by him in that behalf, may certify to the President -
(a) that it would be contrary to the public interest for the whole or part of the document to which the direction relates to be disclosed publicly; or
(b) that the whole or part of the document ought not, for reasons of security, to be disclosed in any manner whatsoever;
and where a certificate is given under sub-paragraph (a), the President shall give such directions to the tribunal as may be requisite for prohibiting or restricting the disclosure in public of the document, or part thereof, as the case may be, and where a certificate is given under sub-paragraph (b) the President shall direct the tribunal to consider whether the appellant's case will be prejudiced if the appeal proceeds without such disclosure, and, where the tribunal are of the opinion that the appellant would be prejudiced if the appeal were to proceed without such disclosure, they shall adjourn the hearing of the appeal until such time as the necessity for non-disclosure on the ground of security no longer exists.”
D. The Access to Health Records Act 1990 (“the 1990 Act”)
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ...”
A. The applicant's submissions
Accordingly, whether section 10 of the 1947 Act could be described as a substantive limitation on his right of access to a court or a procedural one, paragraph 65 of Fayed (as cited in Fogarty, cited above) meant that it should be subjected to a proportionality test. Lord Walker of the House of Lords had recognised in Matthews the difficulty in suggesting that the principle laid down in Fayed had been qualified by the judgment in Z and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001-V) and the applicant considered that there was nothing inconsistent in the latter case with the decision in Dyer or judgment in Fayed.
He had a “civil right” (a cause of action recognised by national law) within the meaning of Article 6 § 1 which was extinguished by the issuance of a section 10 certificate. The concept of civil rights was, and rightly so in the applicant's view, an autonomous Convention notion not solely dependent on domestic classifications. This ensured that a State could not legislate to divest itself of its Article 6 responsibilities and implied that a “civil right” could have a meaning or content different to domestic law. However, the House of Lords in Matthews analysed the existence of a “civil right” solely by reference to domestic law. It was true that there was an unresolved tension between, on the one hand, the principle that the expression “civil rights” had an autonomous meaning and, on the other, the principle that Article 6 applied only to disputes about civil rights which could be said at least on arguable grounds to be recognised under domestic law. The answer was to view domestic law as regulating whether a right had “some legal basis” in domestic law but not as determining whether there was, in fact, a civil right. Accordingly, the fact that the applicant had, until the issuance of the section 10 certificate, a civil cause of action recognised by domestic law was sufficient to conclude that he had a “civil right” for the purposes of Article 6 of the Convention.
While the applicant did not contest the historical analysis of Lord Bingham in Matthews, he maintained that the actual operation of section 10 was also pertinent. He had a cause of action until the Secretary of State had, in the exercise of his discretion, issued the section 10 certificate, thereby extinguishing it. It was the existence of this discretion that distinguished his case from Z and Others and rendered it indistinguishable from Fogarty. Section 10 may not have accorded a wide discretion, but it existed and, if not exercised, the cause of action subsisted. Indeed, it took nine months after the issuance of proceedings for the certificate to be issued.
Even with the pension alternative, the restriction was disproportionate to any such legitimate aim. The breadth of the restriction was greater than necessary to achieve its objective. The pension scheme was manifestly inadequate and this was an exceptionally high price to pay for the advantage of not having to prove fault. The fundamental injustice of section 10 of the 1947 Act was recognised by its repeal in 1987 and, further, service personnel who now discover an injury that was sustained prior to 1987 will be treated less favourably than those with a similar injury sustained after 1987.
B. The Government's submissions
Any creation of a sort of hybrid category would expand the applicability of Article 6 beyond its proper boundaries, turning it from a provision guaranteeing procedural rights to one creating substantive ones, which would, in turn, go against the well-established principle that Article 6 applied only to civil rights which could be said on arguable grounds to be recognised under domestic law. In addition, the Government considered it vital to bear in mind the rationale underlying Article 6: the protection of the rule of law and the proper separation of powers from any threat (see Golder, cited above, and Lord Hoffmann in Matthews). A provision entitling the executive to exercise arbitrary discretion to prevent otherwise valid claims from being decided by the courts would threaten the rule of law, whereas section 10 brought with it no such threat as it simply defined the circumstances in which a no-fault pension scheme would replace a claim in tort for damages. Moreover, it was essential to analyse accurately an individual's substantive rights in domestic law taking into account the history and legislative context of the provision and its purpose (as did Lord Bingham). The purpose of the provision could then be measured against the underlying rationale of Article 6 of the Convention.
The Government further considered, for the reasons outlined in the judgments in Matthews, that section 10 was a substantive limitation. The uncontroversial starting-point was that, prior to the 1947 Act, there was no common-law right to claim damages in tort from the Crown: section 10 could not therefore have removed or taken away any pre-existing right. The 1947 Act created such a right in section 2 but did so expressly subject to section 10 which preserved the preclusion from claiming damages in cases concerning servicemen. In short, the parliamentary intention behind the 1947 Act was to maintain the pre-existing preclusion in so far as servicemen were concerned. Both sections 2 and 10 were contained in Part I of the Act entitled “Substantive Law”, a title which accurately reflected the nature of Part I which was a composite of provisions laying down the basic rules for the Crown's liability in tort. Both the prior common law and the 1947 Act were rules of general application marking the limits of tortious liability in domestic law: they were expressed in the language of rules of substantive law and the circumstances in which there was no right to claim (the section 10 exception to the section 2 right to claim) were of general application and clearly set out in the statute.
The certification provisions, properly understood in context, did not indicate the existence of a right to claim removed by some broad discretion of the executive. There was no such right in the first place and the discretion was a narrow one: in this latter respect, the circumstances in which Parliament intended that no action could be brought were fully defined (sections 10(1)(a) and (2)(b)), the narrow discretion therein can be contrasted with the broad discretion in section 10(3) of the 1947 Act, and the discretion was uniformly and invariably exercised. The purpose of the certification provisions was not to confer a broad discretion to take away an existing cause of action but rather to ease the path of servicemen towards an alternative pension by taking away the need to prove a causal link between the injury and service. If a certificate was not issued, a cause of action continued but under section 2 of the 1947 Act. Accordingly, the certification process did not have any purpose or effect that threatened the rule of law or the separation of powers or was inimical to the rationale behind Article 6.
For these reasons, the Government maintained that the Court of Appeal and the House of Lords correctly concluded in Matthews that section 10 was a substantive provision limiting the scope of the civil right.
C. The Court's assessment
1. General principles
No implication to the contrary can be drawn, in the Court's view, from paragraph 67 of Fayed. The fact that the particular circumstances of, and complaints made in, a case may render it unnecessary to draw the distinction between substantive limitations and procedural bars (see, for example, A. v. the United Kingdom, no. 35373/97, § 65, ECHR 2002-X) does not affect the scope of Article 6 of the Convention which can, in principle, have no application to substantive limitations on the right existing under domestic law.
2. Application to the present case
Drawing on the historical context, the text and purpose of, in particular, sections 2 and 10 of the 1947 Act, the House of Lords concluded that section 10 was not intended to confer on servicemen any substantive right to claim damages against the Crown but rather had maintained the existing (and undisputed) absence of liability in tort of the Crown to servicemen in the circumstances covered by that section. The Lords made it clear that prior to 1947 no right of action in tort lay against the Crown on the part of anyone. The doctrine that “the King could do no wrong” meant that the Crown was under no liability in tort at common law. Section 2 of the 1947 Act granted a right of action in tort for the first time against the Crown but the section was made expressly subject to the provisions of section 10 of the Act. Section 10 (which fell within the same part of the 1947 Act as section 2 entitled “Substantive law” - see Lord Hope in Matthews, paragraph 94 above) provided that no act or omission of a member of the armed forces of the Crown while on duty should subject either that person or the Crown to liability in tort for causing personal injury to another member of the armed forces while on duty. Section 10 did not therefore remove a class of claim from the domestic courts' jurisdiction or confer an immunity from liability which had been previously recognised: such a class of claim had never existed and was not created by the 1947 Act. Section 10 was found therefore to be a provision of substantive law which delimited the rights of servicemen as regards damages claims against the Crown and which provided instead as a matter of substantive law a no-fault pension scheme for injuries sustained in the course of service.
Moreover, Lord Bingham pointed out that the “realities of the situation” were that it was “plainly intended” that the section 10 certificate would be issued where the relevant conditions had been fulfilled and he noted that that had indeed been the uniform and unvarying practice of successive Secretaries of State for forty years, to the extent that any practitioner would have advised Mr Matthews that a section 10 certificate was bound to be issued (see also Lord Walker in Matthews, paragraph 92 above). This narrow discretion conferred by section 10(1)(b) was to be contrasted with the broader discretion for which section 10(3) of the 1947 Act provided. For the reasons set out in paragraph 126 below, this finding as to the narrow discretion of the Secretary of State is not altered by the fact that the latter has now decided not to maintain “a section 10(1) point” against the applicant.
The Court finds this discretion conferred on the Secretary of State by section 10 to be fundamentally different in character from the unfettered discretion enjoyed by a foreign government, which was the subject of the Court's examination in Fogarty, not to waive State immunity and thereby to prevent a claim otherwise well-founded in domestic law from being entertained by a domestic court.
The certification procedure provided for by section 10 is similarly to be distinguished from that considered by the Court in Tinnelly & Sons Ltd and Others and McElduff and Others. In that case, the Fair Employment (Northern Ireland) Act 1976 clearly granted a right in national law to claim damages for religious discrimination when tendering for public contracts. Section 42 of the 1976 Act was not aimed at creating an exception for cases in which Parliament (when adopting the 1976 Act) considered discrimination justified but rather allowed the Secretary of State by a conclusive certificate, based on an assertion that the impugned act was done to protect national security, to stop court proceedings that would otherwise have been justified. As observed by Lord Hoffmann, section 10 did not involve such encroachment by the executive into the judicial realm but rather concerned a decision by Parliament in 1947 that, in a case where injuries were sustained by service personnel which were attributable to service, no right of action would be created but rather a no-fault pension scheme was to be put in place, the certificate of the Secretary of State serving only to confirm that the injuries were attributable to service and thereby to facilitate access to that scheme.
It is not therefore also necessary to examine the parties' submissions as to the proportionality of that restriction. It is further unnecessary to examine the Government's argument that Article 6 was inapplicable on the basis of the above-cited judgments in Pellegrin and R. v. Belgium.
The Court has, however, returned to these submissions in the context of Article 8 of the Convention below.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
“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.
...”
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 OF THE CONVENTION AND/OR ARTICLE 1 OF PROTOCOL No. 1
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The applicant's submissions
The procedure could be conditioned and limited as the President of the PAT wished, Rule 6 providing that the President “may” order disclosure only if the information “is likely to be relevant to any issue to be determined on appeal”. In addition, the applicant considered the Rule 6 procedure to lack effective control: there were no time-limits on disclosure and disclosure was allowed on a piecemeal basis. There were also significant delays in the procedure. The applicant accepted that some delay was attributable to him and he explained the reasons for his delay in responding to the PAT's letter of 25 July 2001 and for applying to adjourn the October 2002 hearing. However, he argued that those delays did not, in any event, lead to the overall delay in the procedure: the MOD continued to make disclosure thereafter and the hearing adjournment was attributable also to the VA which was not ready, to the reasonable confusion as to the scope of the appeal and to the need to put further questions to Dr H. The uncontrolled certification by the MOD of records as undisclosable “departmental minutes or records” also undermined the ability of the Rule 6 procedure to fulfil the positive obligation under Article 8, as did the power to withhold documents on “national security” grounds. The whole Rule 6 procedure was, in the applicant's view, marked by errors, contradictory statements and admissions that certain documents could no longer be found with the consequence that the information at the end of the disclosure process was incomplete. Had Mr McGinley and Mr Egan used the Rule 6 procedure, the Court would have inevitably concluded in its judgment as to the inability, both in principle and in practice, of that procedure to satisfy the positive obligation to provide an accessible and effective means of obtaining information.
In the first place, there was, in the applicant's view, an unacceptable failure to create and maintain records which rendered compliance with the Article 8 positive obligation impossible from the outset. Secondly, the Government had, until recently, refused to carry out a long-term follow-up study which was the only effective way to provide information. He considered unconvincing the reasoning and conclusion of the feasibility study report (see paragraph 55 above), while the recently commissioned study (see paragraph 70 above) had still not been completed and, further, begged the question as to why it was not done earlier.
In the first place, he maintained that the procedures and systems surrounding the tests did not fulfil the procedural requirements inherent in respect for private life, so that the Government had failed adequately to secure and respect his Article 8 interests (see W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, and McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B).
Secondly, he argued that the Government had failed to secure his Article 8 rights in that they had failed to adequately investigate and research (or, alternatively, to put in place an adequate system to investigate and research) the potential risks to which they had chosen to expose him. Just as Articles 2 and 3 implied an investigatory requirement (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324; Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99 ECHR 2002-II; and Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V), so a similar obligation arose under Article 8 of the Convention.
B. The Government's submissions
It was also effective in the present case. Pursuant to the applicant's request, a Rule 6 order was made setting out in broad terms the simple categories of document to be disclosed. The Secretary of State approached compliance in a timely manner, thoroughly and with an evident disposition to conduct an extensive and wide-ranging search in order to disclose the maximum documents possible. A wide range of test documentation was disclosed: nothing of significance was withheld on national security grounds. The applicant made no further request under Rule 6 for disclosure to the PAT.
Disclosure in stages was not unexpected (given the broad category of documents requested, their age and the numerous checks required) and it was a better option than holding all documents until all had been located. As to the suggestion that the documentation was not complete, the Government pointed out that, as in McGinley and Egan, the State could not be held responsible for any allegation concerning the failure to make or maintain records prior to the State's acceptance of the right of individual petition in 1966. As to the complaint about a refusal to carry out a follow-up study, the Government argued that there was no positive obligation to do so, that on no view could such an obligation arise without compelling evidence that there was a material problem and that, in any event, there was at the time an ongoing epidemiological study to assuage the fears of the servicemen.
C. The Court's assessment
1. Applicability of Article 8
The tests are described in paragraphs 15 and 16 above and involved the applicant's exposure to small doses of both of these agents for research purposes. In the case of mustard gas, the PAT expressly found that the aim was to test the suitability of military clothing to exposure (the PAT finding of fact - see paragraph 63 above) and it would appear from the inhalation of nerve gas, that the aim was to test the reaction of service personnel to it. Even accepting the Government's clarifications about the manner in which those tests were conducted, the Court considers that the issue of access to information, which could either have allayed the applicant's fears or enabled him to assess the danger to which he had been exposed, was sufficiently closely linked to his private life within the meaning of Article 8 as to raise an issue under that provision (see McGinley and Egan, cited above, pp. 1362-63, § 97). It is not necessary to examine whether the case also gives rise to a separate issue under the family life aspect of this Article.
2. Compliance with Article 8
between the general interest of the community and the competing interests of the individual concerned, the aims in the second paragraph of Article 8 being of a certain relevance (see Gaskin, cited above, p. 17, § 42).
“... persons in the situation of the applicant have a vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development. On the other hand, it must be borne in mind that confidentiality of public records is of importance for receiving objective and reliable information, and that such confidentiality can also be necessary for the protection of third persons. Under the latter aspect, a system like the British one, which makes access to records dependent on the consent of the contributor, can in principle be considered to be compatible with the obligations under Article 8, taking into account the State's margin of appreciation. The Court considers, however, that under such a system the interests of the individual seeking access to records relating to his private and family life must be secured when a contributor to the records either is not available or improperly refuses consent. Such a system is only in conformity with the principle of proportionality if it provides that an independent authority finally decides whether access has to be granted in cases where a contributor fails to answer or withholds consent. No such procedure was available to the applicant in the present case.”
“The Court reiterates that severe environmental pollution may affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely (see, mutatis mutandis, the Lόpez Ostra judgment cited above, p. 54, § 51). In the instant case the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory.
The Court holds, therefore, that the respondent State did not fulfil its obligation to secure the applicants' right to respect for their private and family life, in breach of Article 8 of the Convention.”
“100. ... the Government have asserted that there was no pressing national security reason for retaining information relating to radiation levels ... following the tests.
101. In these circumstances, given the applicants' interest in obtaining access to the material in question and the apparent absence of any countervailing public interest in retaining it, the Court considers that a positive obligation under Article 8 arose. Where a Government engages in hazardous activities, such as those in issue in the present case, which might have hidden adverse consequences on the health of those involved in such activities, respect for private and family life under Article 8 requires that an effective and accessible procedure be established which enables such persons to seek all relevant and appropriate information.
102. As regards compliance with the above positive obligation, the Court recalls its findings in relation to the complaint under Article 6 § 1, that Rule 6 of the Tribunal Rules provided a procedure which would have enabled the applicants to have requested documents relating to the MOD's assertion that they had not been dangerously exposed to radiation, and that there was no evidence before it to suggest that this procedure would not have been effective in securing disclosure of the documents sought ... However, neither of the applicants chose to avail themselves of this procedure or, according to the evidence presented to the Court, to request from the competent authorities at any other time the production of the documents in question.
For these reasons the present case is different from that of Gaskin ..., where the applicant had made an application to the High Court for discovery of the records to which he sought access.
103. The Court considers that, in providing the above Rule 6 procedure, the State has fulfilled its positive obligation under Article 8 in relation to these applicants. It follows that there has been no violation of this provision.”
On the other hand, the Government have not asserted that there was any pressing reason for withholding the above-noted information although they commented on the vagaries of locating old records that had inevitably become dispersed. Reasons of “medical confidence” were not pleaded by the Government and such reasons would, in any event, be inconsistent with the dilution of the notion in the 1990 Act and the apparent decision not to raise it in the context of the 1998 Scheme and Porton Down records. Following certain revisions of their position and declassification of documents (see paragraphs 53, 55, 57, 59 and 68 above), the Government submitted that, “nothing of significance” had been withheld on national security grounds (see paragraph 152 above).
In particular, the applicant's doctor was given information in 1987 and 1989. However, the applicant did not see it until 1994 given the “medical in confidence” basis of disclosure, the information did not refer to the mustard gas tests, it was not accompanied by the underlying records and it was, in any event, incorrect as regards certain matters (see paragraphs 19 and 36 above). Having been refused disclosure of further information, the applicant was given access for the first time to original records in 1997: this was an ad hoc procedure adopted in response to his tenacious pursuit of the information (see paragraphs 19-33 above) and it constituted but the first of many instalments.
Moreover, none of the processes described as “information services and health studies” (see paragraphs 69-71 above) began until almost ten years after the applicant had commenced his search for records and, further, after he had introduced his application to the Court.
As to the 1998 Scheme, the Court notes the difficulties experienced by the authorities, even in a judicial context before the PAT, in providing records pursuant to the Rule 6 order of the President of the PAT. Even taking into account only the period following the making of the Rule 6 order by the President in February 2001, the disclosure has been piecemeal (over five occasions listed in paragraph 161 above, the most recent being in April 2005), the State reviewed its position on the classification of certain material on several occasions during that period (see paragraphs 53, 55, 57, 59 and 68 above) and, over four years after the Rule 6 order, disclosure remains incomplete (see the letter of 18 April 2005, paragraph 68 above). Indeed, the PAT described as “disquieting” the difficulties experienced by the applicant in obtaining the records produced to the PAT. In the same vein, it is also illustrative that none of the authorities dealing with the Rule 6 procedure or the present application was aware until recently of the Treasury Solicitor's letters from 1953 (see paragraph 72 above). These demonstrated difficulties in making comprehensive and structured disclosure to date undermines, in the Court's view, any suggestion that an individual going to Porton Down to review records retained there (the 1998 Scheme) could lead to the provision of all relevant and appropriate information to that person. It is undoubtedly the case that certain records (existing after 1996) were, given their age and nature, somewhat dispersed so that the location of all relevant records was, and could still be, difficult. However, it is equally the case that the absence of any obligation to disclose and inform facilitates this dispersal of records and undermines an individual's right to obtain the relevant and appropriate disclosure.
Finally, the Porton Down Volunteers Medical Assessment Programme involved only 111 participants and no control group whereas 3,000 service personnel had participated in nerve gas tests and 6,000 in mustard gas tests, with some having been involved in both types of test. The full-scale epidemiological study did not begin until 2003 and has not yet been completed.
VI. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, ... for preventing the disclosure of information received in confidence ...”
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
As to his alleged non-pecuniary loss, he claimed to have been denied access to the relevant information for a very long time. This coupled with unsubstantiated assertions by the authorities that no harm was done by the tests only served to cause him substantial anxiety, stress and uncertainty. He made considerable efforts (medical, political and judicial) to obtain the information over almost twenty years. He did not believe that the Rule 6 procedure was the answer and, in any event, he maintained that he still had not had access to all information. The finding of a violation would not adequately compensate him and he considered that it warranted a substantial award, although he did not specify a sum.
B. Costs and expenses
180. The applicant claimed a total sum (inclusive of value-added tax - VAT) of 100,109.67 pounds sterling (GBP) in legal costs and expenses for the PAT proceedings and the present application, including the anticipated costs of the hearing before this Court in October 2004.
In particular, he claimed GBP 86,663.84 as regards the present application, including the fees of a solicitor and a trainee solicitor (almost 100 hours work) and of three counsel (including one Queen's Counsel). The legal costs and expenses of the domestic PAT proceedings amounted to GBP 13,445.83, including the fees of a solicitor and trainee (for approximately 40 hours work) and of two counsel (one of whom had not been involved in the present application). The relevant fee notes and vouchers were submitted detailing the costs. The applicant did not claim the costs and expenses of his appeal to the High Court from the PAT since Rule 28 of the PAT Rules provided that he was entitled to his costs once leave to appeal was granted.
181. The Government considered the claims concerning the proceedings before this Court to be excessive. They considered unnecessary the appointment of three counsel (for the present proceedings) and contended that the solicitors' fees should, in any event, have been lower. Certain items of work were vaguely described and counsels' fee rates had not been included. They challenged the necessity for the applicant's lengthy submissions before the Grand Chamber. They maintained that GBP 29,000 would be a reasonable sum in legal costs and expenses for the Convention proceedings. The Government did not comment on the costs and expenses claimed for the PAT proceedings.
183. On the one hand, the present application was of some complexity. It required an examination in a Chamber and in the Grand Chamber including several rounds of observations and an oral hearing. It was adjourned for a number of years pending the applicant's PAT appeal. During the adjournment, the applicant kept the Court informed of progress and thereafter continued the PAT proceedings at the same time as the present application. It is reasonable to accept as necessarily incurred the PAT costs to date (excluding the High Court appeal costs which are not claimed), despite the finding under Article 8 above, given not least that those proceedings have led to disclosure of much documentation as recently as April 2005. Further costs, both in terms of the present application and the PAT proceedings, have been incurred since the date of the oral hearing, the date to which the applicant had estimated his costs and expenses.
184. On the other hand, the Court considers excessive the appointment of three counsel as well as a solicitor (and a trainee solicitor) to the present application and two counsel (together with a solicitor and trainee) to the PAT proceedings. It is not explained why one of the counsel working on the PAT appeal was not involved in the application to this Court: this would have led to some duplication of work. In addition, and as the Government pointed out, certain items of work in counsels' fee notes are not clearly explained and they have not noted their rates. Moreover, the estimated fees for the hearing before this Court (approximately GBP 37,000 including the travel, accommodation and legal fees of three counsel as well as of a solicitor) are unreasonably high. Furthermore, the applicant's claim under Article 6, which was a significant part of the application, was unsuccessful so that the costs and expenses allowed should be reduced (see Z and Others, cited above, § 134).
C. Default interest
FOR THESE REASONS, THE COURT
1. Holds by nine votes to eight that there has been no violation of Article 6 § 1 of the Convention;
2. Holds by sixteen votes to one that there has been no violation of Article 1 of Protocol No. 1;
3. Holds unanimously that there has been no violation of Article 14 of the Convention taken in conjunction with Article 6 of the Convention and Article 1 of Protocol No. 1;
4. Holds by sixteen votes to one that there has been no violation of Article13 of the Convention taken in conjunction with Article 6 of the Convention and Article 1 of Protocol No. 1;
5. Holds unanimously that there has been a violation of Article 8 of the Convention;
6. Holds unanimously that there has been no violation of Article 10 of the Convention;
7. Holds unanimously
(a) that the respondent State is to pay the applicant, within three months, the following amounts to be converted into pounds sterling on the date of settlement:
(i) EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage;
(ii) EUR 47,000 (forty seven thousand euros) in respect of costs and expenses (inclusive of any VAT which may be chargeable) less EUR 3,228.72 (three thousand two hundred and twenty-eight euros seventy-two cents) in legal aid already paid by the Council of Europe;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
8. Dismisses unanimously the remainder of the applicant's claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 19 October 2005.
Luzius
Wildhaber
President
Lawrence Early
Deputy Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Mr Caflisch and Mr Ress;
(b) dissenting opinion of Mr Loucaides joined by Mr Rozakis, Mr Zupančič, Mrs Strážnická, Mr Casadevall, Mrs Thomassen, Mr Maruste and Mr Traja;
(c) dissenting opinion of Mr Zupančič.
L.W.
T.L.E.
CONCURRING OPINION
OF JUDGES CAFLISCH AND RESS
We agree with the present judgment. We agree in particular, regarding the scope of Article 6 § 1 of the Convention, that the restriction contained in section 10 of the Crown Proceedings Act 1947 barred the applicant from suing the Crown and that it derived from the applicable principles governing the substantive right of action in domestic law (see paragraph 124 of the judgment).
Having reached the above conclusion, the Court has found it unnecessary to dwell on the alternative argument submitted by the Government (see paragraph 113 of the judgment) to the effect that Article 6 § 1 was not applicable on account of the Court's judgments in Pellegrin v. France ([GC], no. 28541/95, § 66, ECHR 1999-VIII) and R. v. Belgium (no. 33919/96, 27 February 2001), which exclude from the scope of that provision cases pertaining to the relationship between the State and State officials engaged in the exercise of public functions. As the Court pointed out in Pellegrin:
“... 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 depositary 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.” (§ 66; emphasis added)
The present case squarely fits into the above category, which is why we find that the applicant's complaint under Article 6 § 1 of the Convention must also fail on the basis of the alternative argument put forward by the Government but not examined by the Court.
DISSENTING OPINION OF JUDGE LOUCAIDES
JOINED BY JUDGES ROZAKIS, ZUPANČIČ, STRÁŽNICKÁ, CASADEVALL, THOMASSEN,
MARUSTE AND TRAJA
I am unable to agree with the majority that the applicant had no civil “right” recognised under domestic law which could attract the application of Article 6 § 1 of the Convention and that as a consequence there has been no violation of that provision. I believe that the applicant in this case had a civil right in respect of the tort of negligence, subject to a procedural limitation. I therefore find that Article 6 § 1 of the Convention is applicable and that, in so far as the applicant was denied access to a court, there has been a violation of the provisions of that Article. I shall set out in detail the reasons for my approach.
The basic issue in this case is whether the limitations imposed by section 10 of the Crown Proceedings Act 1947 amount to procedural or other non-substantive restrictions on bringing an action before the British courts in cases such as that of the applicant, or whether they limit the extent of the substantive cause of action with the result that the applicant cannot rely on Article 6 of the Convention because he is not entitled to any civil right. In deciding this issue we have to take into account the domestic law and at the same time bear in mind the autonomous Convention concept of a civil right. In other words, the question is whether the applicant had a cause of action in respect of which he was denied access to a court because of procedural restrictions or whether he did not have a cause of action at all and consequently no question of access to a court arises in any event under Article 6 of the Convention.
Until 1947 no cause of action in tort lay against the State (“the Crown”). Political and social developments appear to have led to a radical change in the situation. Section 2 of the 1947 Act introduced a provision by which the Crown would be subject to liability in tort. However, section 2 was subject to section 10, which provided for different treatment for the armed forces. If members of the armed forces 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 could be treated as attributable to service for the purposes of entitlement to a war pension, the idea being to substitute a no-fault pension system for an action in tort. While the placement of sections 2 and 10 in Part I of the 1947 Act, entitled “Substantive law”, is relevant, it is also pertinent to observe that a cause of action in tort against the Crown could be pursued by a serviceman against the Crown if the Secretary of State did not issue a section 10 certificate. It must be underlined that section 10 of the 1947 Act was repealed in 1987, allowing armed forces personnel to sue the Crown in tort without any restrictions, but the repeal concerned events post-dating the entry into force of the 1987 Act and clearly does not apply to the applicant's case
Prior to the decision on admissibility in the present case, the High Court (in Matthews v. Ministry of Defence) found section 10 of the 1947 Act to be incompatible with Article 6 on the ground that it amounted to a procedural bar that was disproportionate (see paragraphs 84-86 of the present judgment). Since the admissibility stage, the Court of Appeal and the House of Lords have overturned the High Court's ruling, finding that section 10 delimited the substantive cause of action so that Article 6 was inapplicable (see paragraphs 87-95 of the judgment)
Consequently, I believe that in deciding whether the fact that the applicant was unable to bring an action against the State for negligence, a possibility afforded to every private individual under the same law, is a procedural or substantive issue, it is useful to bear in mind the approach of the High Court and the House of Lords on this very issue in Matthews.
According to the High Court, the relevant provisions of the 1947 Act did not affect the applicant's right of action but simply prevented him from suing the State for damages on account of a breach of that right. In other words there was a right of action but the remedy was unavailable. In this connection, it took into account the fact that the applicant was prevented from suing under the provisions in question as a consequence of a decision by the Secretary of State to issue a certificate entitling him to a no-fault pension. The High Court stressed the following on this point:
(a) Even working on the assumption that the certificate required by section 10 of the Act as a condition for preventing an action in tort against the State was generally issued as a matter of policy in every case in which the Secretary of State was satisfied that there was a connection between the serviceman's injuries and his service in the armed forces, that did not mean that the Secretary of State responsible for issuing such a certificate could not depart from this policy if he wished to.
(b) If the legislature had intended to exclude claims by members of the armed forces, such as the applicant, from the scope of the State's liability in tort and not simply make such liability dependent on certain procedural conditions, it could simply have specified that the provisions regarding tortious liability were not to apply to claims by such persons.
The approach of the House of Lords was that the legislation complained of by the applicant provided for the first time for the State's liability in tort. The legislation in question defined the extent of the cause of action in respect of such acts. Section 10, which prevented the applicant from suing in the circumstances of his case, set a limit on the cause of action, leaving cases such as his outside the scope of such action.
Regarding the fact that non-liability for tort in cases such as that of the applicant depended on the issuing of a certificate by the Secretary of State leading to the payment of a pension, a fact on which the High Court relied
in finding that the limitation of access to a court in such cases was a procedural bar and not a substantive one, the House of Lords took the view that according to
“... the realities of the situation ... the Secretary of State does in practice issue a certificate whenever it is (in legal and practical terms) appropriate to do so. He does not have a wide discretion comparable to that of a foreign government in deciding whether or not to waive State immunity”. (see paragraph 92 of the judgment)
I take it that the House of Lords meant that certification by the Secretary of State in practice was more of a formality rather than a procedure involving the exercise of a substantial discretion.
Having considered carefully the legal position before 1947, the 1947 Act and the case-law, I am inclined to support the conclusion that we are not dealing here with the exclusion of the right of access to a court on account of the delimitation of the scope of the particular civil tort, but with restrictions on access to a court in respect of a civil right on account of certain conditions of a procedural nature. More specifically, I believe that the tort of negligence for which the applicant seeks judicial redress has a well-established legal basis in the domestic law of the respondent State. Until 1947 it was not actionable against the State. One could argue that until then the State did not have any legal liability because according to the British legal system prevailing at the time, “the King could do no wrong”. I do not find this traditional legal fiction sufficiently convincing to have neutralised in terms of the Convention the civil wrong of negligence as far as claims against the State were concerned. It did, however, prevent any action against the State. It should be recalled that whether there is a civil right in any country is not decided exclusively by reference to the domestic law. The courts may examine whether there is a sufficient legal basis for a civil right in the State in question regardless of the domestic conditions or limitations.
But even assuming that the State had no liability at all for any tort because “the King could do no wrong”, the fact remains that after the 1947 Act the State became liable for torts committed by its public servants. The substantive provisions of this Act do not exclude cases such as that of the applicant from the scope of the State's tortious liability. And here I must say that I agree with the statement in the judgment of the High Court that if the 1947 Act was intended to exclude members of the armed forces from the reforms introduced by sections 1 and 2, then one would have expected a clear provision to the effect that these reforms were not to apply to claims by such persons. In such cases the question whether any particular claim fell within this category or not would have had to have been decided by the courts on the basis of the relevant facts (see Powell and Rayner v. the United Kingdom (judgment of 21 February 1990, Series A no. 172) concerning the substantive limitation under section 76(1) of the Civil Aviation Act 1982).
It is correct that section 10 of the 1947 Act provides that the Crown is not subject to liability in tort in respect of acts causing death or personal injury to members of the armed forces if certain conditions are satisfied, one of them being that the Secretary of State certifies that the suffering of the relevant injury has been or will be treated as attributable to service for the purposes of entitlement to a pension. The question then arises whether this provision is part of the definition of the relevant civil right, or whether it simply regulates an already existing civil liability through procedural restrictions. I favour the second alternative and in this respect I again subscribe to the approach of the High Court, to which I have already referred.
Providing for a condition such as certification by the Secretary of State, rather than defining a series of exceptions and leaving the question of their existence in any particular case to be decided by the courts, lends support to the view that the relevant restriction on the right of access to a court is procedural in nature. In this connection, I believe that it is also pertinent to point out that certification by the Secretary of State also amounts to intervention by the executive, in fact a member of the government, in the determination of the question whether an individual is qualified to bring an action in the courts for negligence. Given the political status of the Secretary of State, his intervention points to a procedural rather than a substantive limitation on the right to bring an action. This is because holders of political posts are responsible for the formulation of policies and their application and this involves the exercise of substantial discretion. And, as was rightly pointed out by the High Court, the fact that the certificate was generally issued as a matter of policy in every case in which the Secretary of State was satisfied that there was a connection between the serviceman's injuries and his service in the armed forces did not mean that the Secretary of State could not depart from this policy if he wished to. Such a change of policy is illustrated by what was discovered, after the hearing in this case before our Court, in connection with a case similar to that of the applicant (see paragraph 72 of the judgment; reference is made to this point below).
The Secretary of State may issue the certificate in question or he may not. If he is not satisfied that the relevant situation requires such a certificate or, to use the words of the House of Lords, if he finds that it is not appropriate to issue the certificate, people in the applicant's position can sue for the civil wrong of negligence, which already exists. The Secretary of State may not have wide discretion compared to that of a foreign government in deciding whether or not to waive State immunity, but he certainly does have the possibility or the power to decide each case in one way or another. If he issues the certificate there can be no judicial action. If he does not, people in the applicant's position can bring an action on a legal basis that already exists. Indeed, it is important to stress that in such cases the existing legal basis is the general right to sue the State in tort under section 2 of the Act. No new legal basis is provided for in the absence of the relevant certification and therefore no new legal basis is required. This supports the conclusion that the restrictions regarding members of the armed forces do not fall within the definition or delimitation of the general liability of the Crown in tort as introduced by the substantive provisions of the 1947 Act. Furthermore, taking into account the wording of the Act, the distinction made by the High Court between the existence of a right and a remedy is, I believe, correct. The legal basis of the right is there. The remedy is conditional.
The certificate by the Secretary of State may in general be issued as a matter of course. Nevertheless, it may not be issued and the assumed nature of certification does not strengthen the respondent Government's case any further. Admittedly, the judgment in Fogarty v. the United Kingdom ([GC], no. 37112/97, ECHR 2001-XI) regarding immunities differs from the present case. But even a claim for immunity is in practice generally a formal claim before the courts. Embassies issue certificates claiming diplomatic or State immunities even for non-payment of their diplomats' debts, and such certificates are issued as a matter of course.
What is also important in this respect is the fact that after the hearing before the Court in the present case it was discovered that according to legal advice given by the Treasury Solicitor to the Ministry of Defence in 1953 concerning another test participant in the same position as the applicant, section 10 of the Crown Proceedings Act 1947 was not applicable and its provisions could not therefore protect the Crown or the Minister from liability. As a consequence of that, the Secretary of State has decided that he will no longer “take a section 10(1) point” in any civil action brought by the applicant. So it appears that in the present case there were two contradictory approaches regarding the exclusion of Crown liability by virtue of section 10 of the 1947 Act. This is an additional strong argument in support of the position that section 10 certificates were not granted as a matter of course. The Secretary of State may exercise his or her discretion in one way or another through an assessment of the situation on the basis of the same facts. This is strongly indicative of a procedural limitation on the right of access to a court in respect of the claim. It certainly seems to undermine the view expressed by the House of Lords and the Government that the exercise of discretion in issuing section 10 certificates is not substantial. On the contrary, it appears from these new facts that the Secretary of State in issuing a certificate is making an assessment or appraisal of the situation that goes beyond the mere finding of fact or the verification of the fulfilment of certain legal conditions. It has been demonstrated that the same situation may be assessed in two different, contradictory ways. The political status of the Secretary of State and the nature of the conditions that he has to consider when deciding whether or not to issue a certificate (“... if [the] suffering ... has been or will be treated as attributable to service ...”) do play a role in such an assessment.
But, being concerned with human rights, we must not lose sight of the demands of the rule of law which formed a basis for the acceptance of a right of access to a court. The rule of law requires that individuals should be allowed to have their civil rights examined by independent judicial institutions. This applies a fortiori to claims against the State. In such cases we must adopt a more liberal approach or interpretation of the legal situation so as to allow room for the right of access to a court rather than lean towards the extinction of, or the creation of absolute bars to, such a right - if, of course, there is a reasonable opportunity to do so. And in this case I believe that there is such an opportunity.
The raison d'être of the restrictions on the relevant right of the members of the armed forces in the present case has ceased to exist since 1987. This is a factor to be taken into consideration, both in support of my position that the restrictions in question did not limit that right and in support of the conclusion that, as such restrictions were procedural, they could not be considered proportionate to the aim pursued. On this subject I again fully subscribe to the reasoning of the High Court (see paragraph 86 of our judgment).
Finally, I must state that I do not agree with the argument made by the Government (see paragraph 113 of the judgment) to the effect that Article 6 § 1 is inapplicable on account of the Court's judgments in Pellegrin v. France ([GC], no. 28541/95, § 66, ECHR 1999-VIII) and R. v. Belgium (no. 33919/96, 27 February 2001). My disagreement is based on precisely the same reasons as those set out by the Court of Appeal in Matthews (see paragraph 88 of our judgment). Furthermore, I note that the Ministry of Defence did not raise this argument before the House of Lords in that case.
In view of my finding regarding the violation of Article 6 of the Convention, I do not think that it is necessary to deal with the complaint concerning Article 1 of Protocol No. 1.
DISSENTING OPINION OF JUDGE ZUPANČIČ
In decisional terms I follow the nuanced approach of Judge Loucaides's dissenting opinion in which he, on balance, opts for the procedural perspective.
In conceptual terms, however, I find it difficult to accept that the issue should depend on the somewhat fictional distinction between what is “procedural” and what is “substantive”. However, this artificial separation of “procedural” and “substantive” has been maintained and further built upon by our own case-law. Article 6 and its precedential progeny such as “access to a court” derive from an unconscious, or at any rate unstated, underlying premise.
The premise is that the procedure is a mere ancillary and adjective means, a transmission belt, to bring about the substantive rights.
At its inception it perhaps made political sense that an international instrument such as the European Convention on Human Rights should attempt to limit its effect to what was seen as a mere procedural means. The establishment of a substantive right would then, at least seemingly, remain in the sovereign domain of the domestic law. With time, however, this imagined tectonic boundary between what is substantive and what is “merely” procedural has developed into a seismic fault line. It generates hard cases, as the split in the vote demonstrates, which make bad law. In a case, moreover, where the executive is given the discretion to interfere with access to a court, we face a checks and balances (separation of powers) issue typically to be resolved by a domestic constitutional judicial body.
It is ironic that we should, particularly in British cases, build on the distinction between what is procedural and what is substantive. While the Continental legal systems have, for historical reasons, traditionally maintained the strictness of the distinction, it is precisely the common-law system which has always considered the right and the remedy to be interdependent[1]. Is the remedy something “substantive”? Or is it “procedural”? Is the legal fiction “the Crown can do no wrong” - and the consequent blocking of action (immunity) - merely procedural? Or has the substantive right of the plaintiff simply been denied? As we move from one British case to another the dilemma appears in cameo.
It is becoming clear that we need to resort back to common sense. Despite the slender majority's vote to the contrary, it is easy to maintain that any immunity from any suit is a procedural block. On the other hand, we are aware that both the intent and the effect of such an immunity is to deny one of the most logically compelling substantive claims in law.
What then is a right? Is it not true that a “right” - including a “human right” - becomes something legally relevant, paradoxically, only when it is alleged to have been denied? Philosophers and politicians may have the luxury of being able to speak of rights deontologically and in abstracto. In law, however, it is the adversary procedural context which makes the substantive rights come out in the open, that is to say, exist. The right appears on the legal horizon when an infringed interest of a legal subject is procedurally asserted and the remedy actively pursued. A non-vindicated right is mere hypothetical abstraction.
Human relations in society may be saturated with all kinds of potential rights. Nevertheless, in most cases they remain unasserted either because they are not violated in the first place or because the aggrieved person omits to pursue them procedurally. Moreover, a right without a remedy is a simple recommendation (“natural obligation”). It follows that a right is doubly dependent on its concomitant remedy. If the remedy does not exist a right is not a right; if the remedy is not procedurally pursued the right will not be vindicated. The right and its remedy are not only interdependent. They are consubstantial.
To speak of rights as if they existed apart from their procedural context is to separate artificially - say for pedagogical, theoretical or nomotechnical reasons -what in practical terms is inseparable. A substantive right is not a mirror image of its procedural remedy.
A substantive right is its remedy.
It is ironic that so often common sense and common law should come into direct collision. It is doubly ironic that the majority should speak of avoiding mere appearances and sticking to realities (see paragraph 121 of the present judgment) when the distinction the judgment is built upon is pure legal fiction. We may have muddled through another case but the underlying false premise remains. The dilemma is certain to come back.
The way to address this dilemma is, obviously, to cease subscribing to the false premise. It is difficult to address this in the abstract. However, at least in cases in which the fault line is potentially decisive, where it collides with justice and common sense, since we are a court of human rights, we should opt for an autonomous meaning of “substantive due process”. Intellectual honesty demands no less.