A Discussion of Keyu & Others v Secretary of State for Foreign and Commonwealth Affairs & Another [2015] UKSC 69

by Guest Post on December 10, 2015

We are delighted to welcome this guest post by the QUB Human Rights Centre (HRC). HRC can be contacted via Dr Luke Moffett l.moffett@qub.ac.uk.

Introduction

Members of the QUB Humans Rights Centre met today, Human Rights Day 2015, to discuss the judgment of the UK Supreme Court in Keyu & Others v Secretary of State for Foreign and Commonwealth Affairs & Another [2015] UKSC 69 (“Keyu”) and its potential implications for Northern Ireland. Keyu was a legal challenge, based in both international and UK domestic law, to decisions by the respondents not to hold an investigation into the killing of 24 civilians by a patrol of the Scots Guards in Malaya, which was under British colonial power at the time of those killings. This blog post briefly highlights some of the points which arose during today’s discussion. The first section recounts comments made in respect of the Supreme Court’s approach to its own jurisdiction to hear the case. The second, third and fourth sections then recount comments made in respect of each ground of appeal, before the concluding section proposes what implications the decision might have in the Northern Ireland context.

Jurisdiction

The Court addressed its own jurisdiction to hear Keyu as a preliminary issue. Lord Mance’s judgment dealt with this issue thoroughly, rejecting that the court lacked jurisdiction. The acts of the Scots Guards were under the aegis of the British government and the UK’s obligations were not diminished because the independent Federation had been a successor state to the UK under international law. Members noted that this decision was the first time the Court had been invited to look at a case where the ECHR was argued to have application in a particular territory, before subsequently ceasing to apply. It was of interest that obligations under the ECHR were held to remain against the controlling state of a particular territory, even where the state later relinquishes power over it. In the absence of the possibility of any inter-state challenge (as Malaysia is not a signatory to the ECHR) this is important. Indeed, members noted that the Court’s finding of jurisdiction in this respect may have implications to people in other nations who may wish to litigate issues arising from other decolonisation struggles, as in Cyprus for example.

Article 2 of the ECHR

Members discussed the interesting interaction between the procedural and substantive elements of the Court’s analysis of Article 2 ECHR. The Court’s focus on procedural aspects attracted some criticism, in particular as to the question of whether the “critical date” for the purposes of its application was the coming into force of the ECHR or the date when the right to petition the ECtHR was recognised by the UK. The contended need for a pragmatic limit to retrospective obligations, epitomised by the Court’s acceptance of Strasbourg’s requirements as set out in Janowiec, together with the Court’s interpretation of Article 2 obligations in a narrow, punitive sense (as opposed to a broader, truth-seeking sense) fell short of some members’ understanding of the substantive meaning of the right to life under Article 2. It was suggested that a middle-ground would have been to at least allow for a declaration of incompatibility with Article 2, which is of some value in itself, even if it was inappropriate to hold that an investigation was required by it. It was noted that the decision may be interpreted as going some way towards removing historical truth from the realm of human rights and consigning it to the political realm.

Customary International Law

Members discussed the obvious difficulties in making an argument on this ground. Some members questioned the value in relying on soft law documents and wondered whether greater use of jurisprudence from the Inter-American Court of Human Rights should have been raised in argument. The disagreement between Lords Neuberger and Kerr about whether customary international law could be relied upon in the absence of applicable treaties was also discussed, as was the broader question of whether a common law constitution’s relationship with evolving principles of customary international law could be explored further in the light of this case.

Judicial Review

Members were also keen to discuss the question raised again in Keyu of whether the long-standing Wednesbury unreasonableness ground for judicial review should be completely replaced by a test of proportionality. Several members agreed that this would not necessarily be a positive development, because proportionality requires the judiciary to dwell on one particular aspect of a decision and to prioritise that aspect against other values (lawfulness, legitimacy, necessity); something which might close off the possibility of considering other important values, such as the right to truth for example. Members noted with interest the (somewhat unusual) disagreement between Lord Kerr and Lady Hale in relation to the applicable domestic test. Members present preferred Lady Hale’s decision to apply the modified Wednesbury unreasonableness test in the circumstances. In particular, reasonableness need not require a full inquiry under the Inquiries Act 2005; experience has shown that ad hoc investigations can also be viable (the Hallett Review being one example). A more general point made by members present was the Supreme Court’s unwillingness to decide issues of significant constitutional importance when sitting as a panel of five. It was noted that the procedure for deciding the constitution of panels requires clarification in order to ensure that opportunities to answer pressing questions cannot be abdicated in this way.

Northern Ireland

Participants at today’s discussion were disappointed by the judgment in Keyu because, while it offered an opportunity for the Supreme Court to provide clarity in respect of the UK’s responsibilities to investigate death, in certain respects the Court appeared to abdicate this responsibility. While it confirmed that there is a detachable obligation under Article 2 ECHR on the UK to investigate suspicious deaths, even when deaths took place before the “critical date” on which the ECHR became binding, it did surprisingly little to clarify when that duty can be revived. This is the key question which, if answered, would have assisted the victims of suspicious deaths in Northern Ireland who now remain uncertain about the extent of their rights. Likewise, at a time when the future of the Human Rights Act 1998, which has been a dominant force in Northern Ireland legal culture for much of recent history, the Court’s failure to clarify the difficult questions at large also left much to be desired.

 

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