affiliated to the International Association of Constitutional Law
Last month’s SC ruling in Re McCaughey ( UKSC 20) is the latest in an important line of HL/SC cases to have originated in Northern Ireland and which have had, as their focus, the domestic law reach of Article 2 ECHR. In the ruling – delivered by a 7 judge panel – SC held by a majority of 6-1 that Article 2 applies to an ongoing Coronial inquest into two deaths caused by the State during the Northern Ireland conflict. In broad terms, this means that there should now be more searching Coronial inquests into the use of force by the State in a number of other controversial incidents that have still to be investigated and which are linked to the process of political transition in Northern Ireland. However, when achieving that outcome, SC was required to identify a core point of reasoning from within a ECtHR (GC) judgment that was lacking in clarity and precision (Šilih v Slovenia (2009) 49 EHRR 996 ). Its willingness to do raises interesting questions about the relationship between Strasbourg case law and the “mirror principle” that SC relied upon when making its ruling.
The McCaughey case arose out of a 2009 inquest into the killing of two IRA men, in 1990, by undercover soldiers. From the outset, the Coroner was faced with the question whether Article 2 applied to the investigation, or whether HL’s earlier ruling in McKerr was determinative of the issue. That case had established that HRA does not have retrospective effect in cases involving the right to life and that, even if Article 2 gives rise to continuing obligations in international law, this cannot bring a death that pre-dates 2 October 2000 within the temporal reach of HRA. However, in Šilih, a case concerning a pre-accession death in a Slovenian hospital that was being investigated after accession, ECtHR recast its understanding of the nature of Article 2. In a crucial passage it said that “the procedural obligation to carry out an effective investigation under article 2 has evolved into a separate and autonomous duty … it can be considered to be a detachable obligation arising out of article 2 capable of binding the state even when the death took place before the critical date” (para 159).
The “critical date” in McCaughey, by analogy, was 2 October 2000, and SC’s finding that Article 2 applies to the inquest saw the court distinguish McKerr (its point about the non-retrospective effect of HRA remains good law) and adopt the logic of ECtHR’s “detachable obligation”. The “mirror principle” that guided SC when doing so was based upon the familiar idea that HRA had brought rights home and that, should the ambit of application of HRA not match that of the ECHR, individuals would be required to petition Strasbourg. To avoid that result, SC was willing to reject criticisms of Šilih and to gloss over uncertainty in the ruling about the limits to the new detachable obligation (ECtHR had stated, among other things, that the obligation is “not open-ended” but that it “would not exclude that in certain circumstances the [obligation] could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner” [paras 161 and 163]). Although Lord Phillips admitted to “having difficulty” with aspects of the judgment (para 46) – Lord Hope likewise said that “only the most starry-eyed admirer” of ECtHR would regard the judgment as clear (para 73) – the majority held that the decision ultimately centred on the point that “the procedural obligation to investigate a death under article 2 of the [ECHR] is not only distinct from the substantive aspect of the article but is autonomous and detachable from it” (Lord Dyson, para 121). Lord Kerr, at para 119, sought to clarify when the obligation might be activated by identifying 7 principles that he had gleaned from ECtHR’s ruling.
So what are the implications of McCaughey? Certainly, it might be said, at a doctrinal level, that the case represents a high-water mark in terms of domestic law’s reception of the ECHR. Although the logic of the mirror principle is by no means new to the reasoning of the UK courts, McCaughey essentially saw SC make sense of an international ruling that was evidently regarded as part unsatisfactory. This, of course, has gone some way towards achieving HRA’s objective of bringing rights home, and the ruling should for that reason be welcomed. However, at a time when the case law of ECtHR is increasingly being criticised both at home and elsewhere, it might be wondered how far domestic courts throughout Europe should be expected to make sense of the occasionally unsatisfactory rulings of their international counterpart. If they become unable to do so in the future, ECtHR will not only have complicated rights protection at the national level but likely also invited even more cases onto its already overloaded docket.
Practically, the implications of the ruling are, perhaps, more straightforward. That much is suggested in Lord Brown’s judgment where he noted that “there are 16 ‘legacy inquests’ (involving 26 deaths) currently outstanding on the coroner’s books, a further six incidents (involving eight pre-2000 deaths) referred by the Attorney General … and a further 7 deaths (between 1994 and January 2000) not yet the subject of inquests” (para 102). This all means that Article 2 will apply to that range of unresolved deaths and, insofar as Article 2 inquests provide for closer scrutiny of State actions (a point that was doubted by Lord Brown), fuller accountability may follow. If that is where the reception of Šilih ends, it may help to allay concerns about how military and police operations were conducted in cases such as McCaughey and, in that way, aid the continuing process of reconciliation in Northern Ireland. If other cases arise beyond those listed by Lord Brown – whether in respect of the Northern Ireland conflict or otherwise – the uncertainties within Šilih may yet come back to test UK courts.
Gordon Anthony is Professor of Public Law at Queen’s University, Belfast