Twelve years ago, the Court of Appeal said—in R (Association of British Civilian Internees (Far East Region)) v Secretary of State for Defence  EWCA Civ 473—that, given its perceived deficiencies when viewed alongside the proportionality doctrine, it was difficult to see ‘what justification there now is for retaining the Wednesbury test’. However, said the Court of Appeal of Wednesbury, ‘it is not for this court to perform its burial rites’. Nor, it would appear, is it for a five-Justice Supreme Court to do so, at least according to this week’s decision of that Court in Keyu v Secretary of State for Foreign and Commonweawlth Affairs  UKSC 69. The issue at stake in Keyu is helpfully summarised in the following terms in the press statement accompanying the judgment:
This appeal concerns the decision of the respondent Secretaries of State for Foreign Affairs and Defence to refuse to hold a public inquiry into events which took place while the UK was the colonial power in the former Federation of Malaya (now Malaysia). The UK government sent troops to the Federation in 1948 in response to an insurgency. On 11–12 December 1948, a patrol of Scots Guards killed 23 unarmed civilians in the village of Batang Kali in Selangor, one of the states of the Federation. The Appellants are related to one or more of the victims.
Much of the case turned upon the whether the refusal to hold an inquiry was unlawful by reference to Article 2 of the European Convention on Human Rights or at common law by virtue of the incorporation of relevant principles of customary international law. For reasons that this post does not consider, both of those arguments failed. The other strand of the appellants’ argument was to the effect that the refusal was unlawful as a matter of domestic law, on the ground that it amounted to an abuse of the discretion that section 1 of the Inquiries Act 2005 confers upon Ministers to establish public inquiries into matters of ‘public concern’. Continue reading “Q: How many Supreme Court Justices does it take to perform the Wednesbury doctrine’s burial rites? A: More than five”