To begin with, Lord Neuberger’s judgement inthe case of Nicklinson, has four main parts to it.1 One ofthem is that, s2 of the Suicide act 19612 does notforce a ‘blanket ban’ assisted suicide as it is not a complete ban on assistedsuicide.3 Inaddition, he believes that the courts have the institutional power to consider whethers2 undermines the Convention rights. However, ‘it would be institutionallyinappropriate’ to do so as parliament is debating the matter.4 As wellas that, he expects the DPP to clarify their policy.
5 To decide if our judges are imposing ‘artificialand undesirable limits’ to develop the law, the reasoning behind LordNeuberger’s decision will be analysed. In order to explain, if judges shouldtake a ‘more active role in developing the law’, this essay will examine the decisionsof judges in cases, their jurisdiction, the Human Rights Act 1998 and academiccommentary.6 Before analysing the reasoning behind LordNeuberger’s judgement, it is important to understand the law. The Halsbury lawbook explains that assisted suicide includes ‘aiding, abetting, counselling orprocuring the suicide of another,’ which is and offence under s.2 of theSuicide Act.7This act was further consolidated under s61 Coroners and Justice Act 20098and James Chalmers explains that under Schedule 12 is a provision, whichconsolidates the use of section 2 of the Suicide Act 1961.9On the contrary, Steve Foster explains s.2 of the Suicide Act has beenthe ‘subject of previous challenge before the domestic courts and the EuropeanCourt of Human Rights,’10 whichis why the Human Rights Act 1998 is important11.
Despitethe fact that the Human rights act makes us follow convention rights, under s6(3)of the Human Rights Act, parliament is not a public authority and does not haveto follow these rights.12 Thecourts have to abide by these convention rights; they can do this by adeclaration of incompatibility under s4 and reading down legislation under s3of the act.13Article 8 of the European Convention on Human Rights explains: ‘Everyone hasthe right to respect for his private and family life, his home and hiscorrespondence.
’14 Initially, Lord Neuberger’s judgement is thats2 of the Suicide act 1961does not force a ‘blanket ban’ on assisted suicide.15 Furthermore, under s2(4) 16of theact, the DPP can initiate proceeding to this offence, meaning it is not an absoluteban. This departs from the decision in Pretty as explained by David Lawson as ‘theblanket ban on assisted suicide was a proportionate way to protect the weak andthe vulnerable’. This shows that English judges are not too willing to imposeartificial and undesirable limits on their own power to change the law as theyare changing and developing the law. On the contrary, the fact that the DPP canchose when to initiate proceedings.
Spencer believes that this raises problems with’the rule of law,’ since the DPP has the ability to ‘decriminalise s2 of theassisted suicide act.’ This raises issues with the consistency of the law as itis not clear and Jonathan Herring explains that reform would ‘remove anyconfusion’. Lord Neuberger believes that the DPP policy should be clearer.
However, this seems like a way to avoid developing the law and the judges areimposing too willing to impose artificial and undesirable limits on their ownpower. In addition, Lord Neuberger also explainsthat ‘domestic courts have the constitutional competence’ to decide if s2 ofSuicide Act undermines the convention rights. However, the reason why thejudges did not declare a declaration of incompatibility, is because assistedsuicide is currently debated by parliament as explained by Alexandra Mullock.1Whilst Nicklinson was beingdecided, there was a Assisted Dying. However, this is another examplethe judges being too willing to impose artificial and undesirable limits to developthe law. As explained in a EuropeanHuman Rights Law Review article, that there have ‘been insufficient developments’since the decision of Pretty. On the other hand, there has been developmentswith doctors like in the case of Bland; the law was developed so doctors wouldnot be guilty of giving a high dosage of painkillers when the patient is inpain, even if it shortens life if they are acting in the best interest of thepatient.
17 Howeverthis is not the same thing as assisted suicide and only applies to doctors soreform is still needed. The need for parliamentary reform, an article in InternationalJournal of Law explains that in the case Pretty there is ‘a crystallisation ofthe arguments’ for the need of reform and Jonathan Rogers explains that the ‘endof the battle is still nowhere in sight’. One significant aspect is morality, asassisted suicide is a controversial issuein this case as the European Human Rights Lawreview explains this subject is ‘sensitive.’ However the morality aspect meanspeople start to include Religion as seen by Adam Jackson saying the courts usesthe sanctity of life as ‘an even more fundamental principle of the common law.’Kevin Yuli explains how this leads to fears and anxieties.
In addition, Ferreira discusses the ‘Mirrorprinciple,’ which comes from Lord Bingham’s “the duty of national courtsis to keep pace with the Strasbourg jurisprudence as it evolves over time: nomore, but certainly no less” in the Ullah case. The significance of the principlecan be seen with the judges,’ including Lord Neuberger’s decision not to pass adeclaration of incompatibility under s4 of the Human Rights Act. The Strasbourgcourt explicitly concluded many times after the case of Pretty for breach ofarticle 8 of the European Court of Human Rights as article 8 ‘encompasses theright to decide how and when to die.’ This means the decision of the Strasbourgcourts is not the same as the decision by English courts in Nicklinson. This confirmswhat Ferreira says: domestic courts see Strasbourg’s jurisprudence as a”floor”, not a “ceiling” as they are not following thedecisions of Strasbourg.
Dr Carmen Draghici disagrees with Strasburg, since it violates ‘the right to personal autonomy.’ Furthermore, Lord Neuberger said that it wasnot appropriate to under s4 to enact a declaration of incompatibility as’Parliament is both rational and within the margin of appreciation.’ However, thefact that neither the courts nor parliament has developed the law in assistedsuicide leaves our law in an ‘ambiguous’ state as Sheila Reidy explains. Judgesshould develop the law, where compelling moral arguments to avoid this ambiguityand injustice. Steve Foster explains in his article that Hale was ‘judiciallybrave’ as she was prepared to defy both parliament and Strasbourg. The supremecourt could also invoke the practice statement 196618 tooverrule the previous decision in Pretty as it is the time the law is clarifiedin assisted suicide.
Judges take a more active role in developing the law withcase with compelling moral arguments as seen in R v R,19 wherethe judges abolished the rule that a husband could not be convicted of rapinghis wife and the courts could do the same in this case of Nicklinson in the R vR case the judges abolished a rule from a statutory instrument but inNicklinson the judges would have to go against an act of parliament, who aredemocratically elected and this will go against the doctrine of parliamentary sovereignty. One of the reasons why judges are imposinglimits on their own power is to leave it to parliament to decide, which isartificial but judges should limit their own power and it is not too artificialor undesirable, as one of the main principles of our constitution isparliamentary sovereignty. This means that parliament is the main body whichcreates the legislation and judges should apply the law, so they should nottake more of an active role in developing the law; their role is to apply not tocreate. This can be seen in Steve Foster’s article as explains that ‘the courtsreluctant to clash with the lawmakers on such issue’ showing theirunwillingness to develop the law.
20 Thenon-activist role of judges is further seen by Eduardo Reyes, who argues thatit was ‘institutionally appropriate’ for the courts to determine in cases wherethere are compelling moral arguments. However, they should not only apply thelaw but also develop the law which is why Steve Foster said Hale was judiciallybrave as she was prepared to defy both parliament. As well as this, we can look at the judicialpowers of interpretation and Richard H.S.
Tur discusses legislative techniques.Tur explains that many lawyers would use the literal rule and under section 2of the Suicide Act: giving the plain ordinary meaning of the act, thereforeassisted suicide to not to be allowed.21 Thegolden rule puts words into their context and uses the ordinary meanings unlessit has an absurd meaning.22 Tur explains that section 2(1) ‘may be readto give it value and sense’ and Parliament’s intention is not for someone likeMr Pretty’s to be guilty of any offence. This is achieved by applying anethical filter to the meaning of the provision such that it criminalizesmorally unjustified assisted suicide but not morally justified assisted suicide. In conclusion, the Nicklinson is on the topicof assisted suicide and there will be more cases and case shows that judges are too willing toimpose artificial and undesirable limits on their own power to change the law,because the judges said it was only a matter of parliament to decide.
Inaddition, in cases with compelling moral arguments, they should take a moreactive role in developing the law as they can use their interpretation powersand exceptions in the human rights act change and develop the law.1 Regina (Nicklinson) and another v Ministryof Justice and others (CNK Alliance Ltd and others intervening) 2014 UKSC382 SuicideAct 1961, s23 Regina (Nicklinson) and another v Ministryof Justice and others (CNK Alliance Ltd and others intervening) 2014 UKSC384 ibid.5 ibid.
6 HumanRights Act 19987 Halsbury’sLaws (5th edn, 2013) vol 88A, para 1258 Coroners and Justice Act 2009, S619 James Chalmers ‘Case Comment- Clarifying the law on assisted suicide?Ross v Lord Advocate’ 2017 EdinburghLaw Review 10 SteveFoster ‘Still no right to die: a study in the constitutional limitations of theUK judiciary’ 2017 Coventry LawJournal11 HumanRights Act 199812 ibid. s6(3)13 ibids3, s414 Conventionfor the Protection of Human Rights and Fundamental Freedoms (EuropeanConvention on Human Rights, as amended) (ECHR) art 815 Suicideact 1961, s216 ibid. s2(4)17 Airedale NHS Trust v Bland (1992)142 N.L.J. 175518 1966Practice Statement 1966 1 WLR 123419 Rv R1992 1 A.C.
599,20 SteveFoster, ‘Still no right to die: a study in the constitutional limitations ofthe UK judiciary’ (2017) 22(1) Cov LJ 5721James Holland and Julian Webb, Learning legal rules, 9th edition,Oxford University press 2016, 263.22 ibid