Case Comment: Keyu & Ors v Secretary of State for Foreign and Commonwealth Affairs & Secretary of State for Defence  UKSC 69 (Part 2)
20 Wednesday Jan 2016
This appeal concerns jurisdiction of the ECHR and common law protection in the context of a request for an inquiry into a mass shooting by British soldiers in a British Protectorate in 1948. In part 2 of this case comment we will look at the legal issues presented to the Supreme Court in much more detail.
A couple of important preliminary points relating to jurisdiction emerge from the decision of Lord Mance at -. First, the Court unanimously rejected the respondents’ contention that there was no jurisdiction pursuant to Article 1 ECHR to determine the case. The first limb of that argument was that the actions of the patrol were attributable to His Majesty in right of the Federation or the Sultan as Ruler of the State of Selangor. Of interest to constitutional lawyers, the Court embarked upon a detailed consideration of an earlier decision in Quark Fishing Ltd v UK, App. No. 15305/06 concluding that the fact of notification of the extension of the ECHR to the Malayan Federation, coupled with the UK’s control over its armed forces in Selangor meant that the deaths in 1948 occurred in circumstances with the UK’s jurisdiction. Secondly, and unsurprisingly the Court was not persuaded that the grant of independence relieved the UK of any potential obligation arising pre-independence. To have held otherwise would have been an extraordinary departure from authority and principle. So far so clear.
Article 2 ECHR
As regards the claim under Article 2 ECHR the position is rather more complex given the varying views of the bench. A key dispute was as to the critical date from which the ten years should run for the purposes of the Janowiec decision and on this there appears to be no clear majority view. Lord Neuberger (and Lord Hughes) took the view that as a matter of existing Strasbourg law and principle, the critical date was when the UK first recognized the right to petition the Strasbourg court (1966) as opposed to the date on which the ECHR came into force or was extended to the Federation. Lady Hale regarded the Strasbourg jurisprudence as unclear and considered that logic favoured the date on which the ECHR came into force. Lord Mance also took the view that the relevant date was the extension of the ECHR to the Federation. Lord Kerr found support in the Strasbourg jurisprudence for a date based on the coming into force for the ECHR but no clear and constant line of case law for a date relating to the right to petition. His judgment on this issue is, as recognized by Lord Neuberger, more nuanced and has regard to the distinction between a domestic court applying the ECHR as opposed to the Strasbourg court itself. On this he postulates at  that if there is no clear guidance from Strasbourg then the domestic court should not be deterred from forming its own judgment. Ultimately he does not make a finding one way or the other on the issue. It is far from clear where these varying views leaves the point for future cases, save to say that it is likely to provide considerable fodder for debate.
Ultimately there was unanimity that the Article 2 claim failed but for differing reasons. For Lord Neuberger (Lords Hughes concurring) this was on the basis of the critical date and he preferred to leave open the question of whether the court would have been bound to order an enquiry under the HRA 1998 assuming the Article 2 claim was made out. He did otherwise think that the claim was out of time under the 1998 Act. Lord Kerr agreed with Lord Neuberger that the court did not need to reach a conclusion on whether the contention that the 1998 Act was not retroactive was wrong, as the focus should be whether there was an existing duty. On this he held there was not. Whilst there was no need for the temporal limits of the ECHR and the 1998 Act to be coterminous, he did not think it could be extended to cover the 52 years between the events of 1948 and the coming into force of the 1998 Act. Lady Hale’s reasons for rejecting the human rights claim were two-fold: (1) because the claim was not about reparation but about truth; and (2) because there was no genuine connection between the ECHR obligations and the triggering event. It is not possible to discern a clear majority view therefore on any of the points of principle but it certainly does not shut out future pre-1966 claims in principle, and those postdating the right to petition in 1966 will be within time.
As a result of this decision, the Supreme Court left undecided the important question of whether, if the Strasbourg court would have held the appellants were entitled to an investigation under Article 2, a UK court would have been bound to order an enquiry pursuant to the HRA 1998. The decision in In re McKerr  UKHL 12 to effect that the HRA 1998 is not retrospective remains good law at present. The question as to how that position has been modified by the subsequent case of In re McCaughey  UKSC 20 where a decision to hold an inquest into a death that occurred before 2 October 2000, could be invoked to require the inquest to be ECHR compliant, was left open for another day.
Customary international law (“CIL”)
The argument that CIL required the UK government to investigate the events of 1948 was unanimously rejected. Lord Neuberger giving the judgment on this issue said it was on the basis that such a duty was unlikely to have been imposed sometime in the last 25 years that international law has recognized a duty, but that it would in any event be subject to a cutoff date. He thought that the ten year rule although unprincipled was practical and that 40 plus years in any event was too much. Further it would not be right to import such a duty into the common law in circumstances where Parliament has made express provision for investigations into deaths. Lord Mance agreed with the substantive analysis of CIL but thought that if such a duty did exist as a matter of CIL it should be imported into the common law. Lord Kerr also expressed the view that if there were such a CIL duty, there would be a strong argument that such a duty should find expression in the common law. This is no doubt an area of law with potential for further development, to be influenced by events, law and state practice worldwide.
The final claim was based upon common law principles of irrationality and proportionality. The majority of the Court took the view that the decision could not be challenged on a rationality basis. Lady Hale in a powerful and well-articulated dissent disagreed citing a number of factors which had not been seriously considered by the respondents including the most cost effective form of an inquiry, the wider picture of a public interest in investigating an event of this magnitude, the significance for the families in knowing the truth, and in setting the record straight. As regards the hot issue of whether proportionality should supplant rationality as a ground of judicial review challenge, this will have to wait for another case. Lord Neuberger thought it was not right for it to be decided by a five bench court; Lord Kerr and Lady Hale did not disagree but noted the distinction between cases involving a fundamental right and ordinary administrative decisions. Lord Kerr drew a distinction between the context of Pham  UKSC 19 – a claimant stripped of his British nationality being a grave invasion of a fundamental right – and the present case in which the right to investigate was not recognized by the common law or under the 1998 Act. Given, the lineup of counsel and clearly articulated positions by all sides on this point, it might have been an obvious case on which to decide this point, but this was not to be.
In summary and in terms of its wider impact, the judgment lays down many markers for future debate rather than providing a settled view on issues relating to the critical date for historic claims under the ECHR, and on proportionality. That the judgment sets out in so much detail the background facts and the extent of the knowledge of the events of 1948 currently in the public domain is no doubt testament to the significance of the subject matter, but also points to a decision which is tied to its specific facts and on which there is already a significant amount of evidence in the public domain. And the fact that the decisions divide in so many ways – in particular the well-articulated dissent on rationality – means the path must be open for future claims for an inquiry into events that pre-date the right to petition arising from the ECHR.