Introduction

The case of McKerr (Northern Ireland), Re ([2004] UKHRR 385) represents a pivotal moment in the interpretation of the Human Rights Act 1998 (HRA 1998) concerning its application to past events. Jonathan McKerr sought judicial review to compel the Secretary of State for Northern Ireland to conduct an effective investigation into the death of his father, Gervaise McKerr, which occurred many years prior to the enactment of the HRA 1998. This commentary delves into the nuances of the case, examining the legal principles established, the court's reasoning, and the broader implications for human rights jurisprudence in the United Kingdom.

Summary of the Judgment

The House of Lords examined whether the HRA 1998 could be applied retrospectively to compel an investigation into Gervaise McKerr's death in 1982. McKerr argued that provisions of the HRA 1998, specifically under Article 2 related to the right to life, should mandate an effective investigation irrespective of the Act's commencement date. The courts, however, concluded that the HRA 1998 does not have retrospective effect. Consequently, obligations under the Act do not apply to events that transpired before its enactment on October 2, 2000. Additionally, the Courts dismissed the notion of an overriding common law obligation to investigate such deaths, reinforcing the separation between statutory rights and common law principles.

Analysis

Precedents Cited

The Judgment extensively referenced prior cases to underscore the principles governing the non-retrospectivity of the HRA 1998 and the limits of common law obligations. Key cases include:

• McCann v United Kingdom (1996): Established the procedural obligations under Article 2 to investigate deaths resulting from state-sanctioned force.
• R v Secretary of State for the Home Department, ex parte Brind (1991) and R v Lyons (2003): Affirmed the principle that international treaties do not automatically become part of domestic law and emphasized the dualist approach.
• R (Amin) v Secretary of State for the Home Department (2003): Discussed the separation between rights arising under the Convention and those created by the HRA 1998.
• R (Khan) v Secretary of State for Health (2003): Highlighted that the HRA 1998 does not apply retrospectively to deaths occurring before its enactment.

Legal Reasoning

The House of Lords' decision hinged on two primary legal issues:

• Retrospectivity of the Human Rights Act 1998: The court affirmed that the HRA 1998 is not retrospective. This means that the Act's provisions cannot be applied to conduct that occurred before its commencement. As a result, obligations under Article 2 of the Convention, as incorporated into domestic law by the HRA 1998, do not extend to events like Gervaise McKerr's death in 1982.
• Common Law Obligations: McKerr advanced the argument that common law imposes an overriding obligation to investigate deaths resulting from state actions. The Lords rejected this, stating that the common law cannot be used to create obligations that override detailed statutory provisions. They emphasized the importance of parliamentary intent and the separation of powers, ensuring that courts do not extend or reinterpret statutory frameworks in ways contrary to legislative provisions.

Furthermore, the court scrutinized the government's assertion that practical impossibilities negate the duty to investigate. It found this reasoning unconvincing, highlighting that existing evidence and reports could still facilitate an effective inquiry.

Impact

This Judgment reinforces the non-retrospectivity of the HRA 1998, delineating clear boundaries between domestic statutory rights and international human rights obligations. Key implications include:

• Limitation on Claims: Individuals seeking remedies under the HRA 1998 must ensure that their claims pertain to events occurring after the Act's commencement.
• Clarity on Common Law Limits: The decision clarifies that the common law does not extend to enforcing human rights obligations in ways not expressly provided for by statute, maintaining the integrity of legislative frameworks.
• Judicial Restraint: The Judgment underscores the judiciary's role in interpreting statutes without overstepping into legislative domains, thus preserving the balance of power within the UK's constitutional framework.
• Future Human Rights Cases: The decision sets a precedent that will influence how courts handle similar cases, particularly those involving historical events and the application of human rights legislation.

Complex Concepts Simplified

Retrospectivity of Legislation

Non-Retrospective Law refers to legislation that does not apply to events, actions, or omissions that occurred before the law was enacted. In this context, the HRA 1998 cannot be invoked to influence or dictate outcomes related to incidents that took place prior to its implementation.

Human Rights Act 1998 Sections

• Section 6(1): Makes it unlawful for public authorities to act in ways incompatible with Convention rights.
• Section 7: Provides remedies for individuals whose rights under the Act have been breached.

Article 2 of the European Convention on Human Rights

Article 2 guarantees the right to life and imposes a positive obligation on states to protect this right. It includes:

• The prohibition of intentional deprivation of life except under lawful circumstances, such as in the execution of a sentence after a fair trial.
• Requirements for states to conduct effective investigations when life is lost due to state actions.

Common Law Obligations

Common law refers to law developed through court decisions rather than through statutes. In this case, McKerr attempted to argue that common law imposes an obligation on the state to investigate deaths resulting from state actions, equivalent to procedural obligations under human rights law. The court rejected this, emphasizing that common law does not traditionally create such overarching human rights obligations independent of statutory frameworks.

Conclusion

The House of Lords' decision in McKerr v United Kingdom reaffirms the principle that the Human Rights Act 1998 does not apply retrospectively. This delineation ensures that human rights protections are temporally bound to the enactment of relevant legislation, preventing their extension to historical events. Additionally, the rejection of the argument for a common law obligation to investigate state-caused deaths underscores the judiciary's commitment to respecting legislative intent and maintaining clear boundaries between statutory law and common law principles. This Judgment serves as a crucial reference point for future human rights cases, particularly those involving claims related to events predating significant legislative changes.

Overall, the case emphasizes the importance of understanding the temporal scope of statutory rights and the limitations of common law in addressing human rights obligations. It highlights the necessity for individuals to seek remedies within the correct legal framework and timeframe, thereby upholding the integrity and intended application of human rights legislation in the United Kingdom.