Begum (FC) (Appellant) v. London Borough of Tower Hamlets (Respondents)

Article 6(1) of the European Convention on Human Rights protects access to a court for the determination of civil rights recognised, on arguable grounds, by domestic law. It does not create a substantive civil right which domestic law has never conferred.

Whether a statutory restriction is substantive or procedural depends on its context, purpose and practical operation, rather than its drafting form. Section 10 of the Crown Proceedings Act 1947 substantively excluded specified tort claims by service personnel. Its certification requirement linked that exclusion to the service-pension scheme and did not confer an executive discretion to terminate an otherwise existing claim. Article 6(1) was therefore not engaged.

A former Royal Navy mechanic claimed damages from the Ministry of Defence for injury allegedly caused by exposure to asbestos during service between 1955 and 1968. The Secretary of State certified under section 10(1)(b) of the Crown Proceedings Act 1947 that the exposure would be treated as attributable to service for pension purposes.

Keith J held that section 10 infringed article 6(1) of the European Convention on Human Rights. The Court of Appeal allowed the Ministry's appeal and dismissed the action: [2002] EWCA Civ 773; [2002] 1 WLR 2621.

The question for the House was whether section 10 imposed a procedural bar upon an existing tort claim, thereby engaging the right of access to a court, or instead defined the substantive limits of the Crown's tortious liability.

1. Appeal dismissed unanimously. Lord Bingham, Lord Hoffmann, Lord Hope, Lord Millett and Lord Walker held that section 10 of the Crown Proceedings Act 1947 imposed a substantive limitation upon the Crown's liability in tort. It did not operate merely as a procedural bar to enforcement of an existing civil right. Article 6(1) of the European Convention on Human Rights was therefore not engaged.

2. Per Lord Bingham, domestic law had never conferred the relevant right to damages for an exempted service claim. Before 1947 the Crown was not liable in tort. Section 2 created liability subject to the other provisions of the Act, including section 10. The legislative history, statutory structure, consistent domestic authority and practical operation of the scheme showed that Parliament intended specified service claims to remain outside the Crown's substantive liability.

3. Per Lord Hope and Lord Walker, section 10 formed an integral part of Part I of the 1947 Act, headed “Substantive Law”. The conditions concerning a Secretary of State's certificate did not alter the facts defining the immunity. The certificate connected the tort exclusion with the no-fault pension scheme and prevented the Secretary of State from denying attribution to service after relying upon the statutory exclusion.

4. Per Lord Hoffmann and Lord Millett, the distinction between substance and procedure must serve the underlying article 6 principles of the rule of law, separation of powers and judicial access. It must not depend upon legislative technique or labels. Section 10 did not give the executive an arbitrary power to stop proceedings. Parliament itself defined the circumstances in which no tortious liability arose, while the certificate protected the service member against inconsistent positions on damages and pension entitlement.

5. The House distinguished the genuinely procedural restrictions considered in Tinnelly and Fogarty. It applied the principle that article 6 protects adjudication of civil rights recognised on arguable grounds by domestic law but does not prescribe their substantive content. Since there was no relevant domestic civil right, the House declined to decide whether section 10 would have satisfied proportionality had it been procedural.

1. House of Lords: Dismissed the claimant's appeal unanimously and affirmed the Court of Appeal's dismissal of the action: [2003] UKHL 4 .
2. Court of Appeal: Allowed the Ministry's appeal, reversed Keith J and dismissed the action: [2002] EWCA Civ 773 ; [2002] 1 WLR 2621 .
3. High Court: Keith J held that section 10 of the Crown Proceedings Act 1947 infringed article 6(1) of the European Convention on Human Rights.