To right to respect for his private and family

To begin with, Lord Neuberger’s judgement in
the case of Nicklinson, has four main parts to it.1 One of
them is that, s2 of the Suicide act 19612 does not
force a ‘blanket ban’ assisted suicide as it is not a complete ban on assisted
suicide.3 In
addition, he believes that the courts have the institutional power to consider whether
s2 undermines the Convention rights. However, ‘it would be institutionally
inappropriate’ to do so as parliament is debating the matter.4 As well
as that, he expects the DPP to clarify their policy.5  To decide if our judges are imposing ‘artificial
and undesirable limits’ to develop the law, the reasoning behind Lord
Neuberger’s decision will be analysed. In order to explain, if judges should
take a ‘more active role in developing the law’, this essay will examine the decisions
of judges in cases, their jurisdiction, the Human Rights Act 1998 and academic
commentary.6

 

Before analysing the reasoning behind Lord
Neuberger’s judgement, it is important to understand the law. The Halsbury law
book explains that assisted suicide includes ‘aiding, abetting, counselling or
procuring the suicide of another,’ which is and offence under s.2 of the
Suicide Act.7
This act was further consolidated under s61 Coroners and Justice Act 20098
and James Chalmers explains that under Schedule 12 is a provision, which
consolidates the use of section 2 of the Suicide Act 1961.9
On the contrary, Steve Foster explains s.2 of the Suicide Act has been
the ‘subject of previous challenge before the domestic courts and the European
Court of Human Rights,’10 which
is why the Human Rights Act 1998 is important11. Despite
the 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 have
to follow these rights.12 The
courts have to abide by these convention rights; they can do this by a
declaration of incompatibility under s4 and reading down legislation under s3
of the act.13
Article 8 of the European Convention on Human Rights explains: ‘Everyone has
the right to respect for his private and family life, his home and his
correspondence.’14

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Initially, Lord Neuberger’s judgement is that
s2 of the Suicide act 1961does not force a ‘blanket ban’ on assisted suicide.15
 Furthermore, under s2(4) 16of the
act, the DPP can initiate proceeding to this offence, meaning it is not an absolute
ban. This departs from the decision in Pretty as explained by David Lawson as ‘the
blanket ban on assisted suicide was a proportionate way to protect the weak and
the vulnerable’. This shows that English judges are not too willing to impose
artificial and undesirable limits on their own power to change the law as they
are changing and developing the law. On the contrary, the fact that the DPP can
chose 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 the
assisted suicide act.’ This raises issues with the consistency of the law as it
is not clear and Jonathan Herring explains that reform would ‘remove any
confusion’. Lord Neuberger believes that the DPP policy should be clearer.

However, this seems like a way to avoid developing the law and the judges are
imposing too willing to impose artificial and undesirable limits on their own
power.

 

In addition, Lord Neuberger also explains
that ‘domestic courts have the constitutional competence’ to decide if s2 of
Suicide Act undermines the convention rights. However, the reason why the
judges did not declare a declaration of incompatibility, is because assisted
suicide is currently debated by parliament as explained by Alexandra Mullock.1
Whilst Nicklinson was being
decided, there was a Assisted Dying. However, this is another example
the judges being too willing to impose artificial and undesirable limits to develop
the law. As explained in a European
Human Rights Law Review article, that there have ‘been insufficient developments’
since the decision of Pretty. On the other hand, there has been developments
with doctors like in the case of Bland; the law was developed so doctors would
not be guilty of giving a high dosage of painkillers when the patient is in
pain, even if it shortens life if they are acting in the best interest of the
patient.17 However
this is not the same thing as assisted suicide and only applies to doctors so
reform is still needed. The need for parliamentary reform, an article in International
Journal of Law explains that in the case Pretty there is ‘a crystallisation of
the arguments’ for the need of reform and Jonathan Rogers explains that the ‘end
of the battle is still nowhere in sight’.

 

One significant aspect is morality, as
assisted suicide is a controversial issue

in this case as the European Human Rights Law
review explains this subject is ‘sensitive.’ However the morality aspect means
people start to include Religion as seen by Adam Jackson saying the courts uses
the 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 ‘Mirror
principle,’ which comes from Lord Bingham’s “the duty of national courts
is to keep pace with the Strasbourg jurisprudence as it evolves over time: no
more, but certainly no less” in the Ullah case. The significance of the principle
can be seen with the judges,’ including Lord Neuberger’s decision not to pass a
declaration of incompatibility under s4 of the Human Rights Act. The Strasbourg
court explicitly concluded many times after the case of Pretty for breach of
article 8 of the European Court of Human Rights as article 8 ‘encompasses the
right to decide how and when to die.’ This means the decision of the Strasbourg
courts is not the same as the decision by English courts in Nicklinson. This confirms
what Ferreira says: domestic courts see Strasbourg’s jurisprudence as a
“floor”, not a “ceiling” as they are not following the
decisions of Strasbourg. Dr Carmen Draghici disagrees with Strasburg, since it violates ‘the right to personal autonomy.’

 

Furthermore, Lord Neuberger said that it was
not appropriate to under s4 to enact a declaration of incompatibility as
‘Parliament is both rational and within the margin of appreciation.’ However, the
fact that neither the courts nor parliament has developed the law in assisted
suicide leaves our law in an ‘ambiguous’ state as Sheila Reidy explains. Judges
should develop the law, where compelling moral arguments to avoid this ambiguity
and injustice. Steve Foster explains in his article that Hale was ‘judicially
brave’ as she was prepared to defy both parliament and Strasbourg. The supreme
court could also invoke the practice statement 196618 to
overrule the previous decision in Pretty as it is the time the law is clarified
in assisted suicide. Judges take a more active role in developing the law with
case with compelling moral arguments as seen in R v R,19 where
the judges abolished the rule that a husband could not be convicted of raping
his wife and the courts could do the same in this case of Nicklinson in the R v
R case the judges abolished a rule from a statutory instrument but in
Nicklinson the judges would have to go against an act of parliament, who are
democratically elected and this will go against the doctrine of parliamentary sovereignty.

 

 

One of the reasons why judges are imposing
limits on their own power is to leave it to parliament to decide, which is
artificial but judges should limit their own power and it is not too artificial
or undesirable, as one of the main principles of our constitution is
parliamentary sovereignty. This means that parliament is the main body which
creates the legislation and judges should apply the law, so they should not
take more of an active role in developing the law; their role is to apply not to
create. This can be seen in Steve Foster’s article as explains that ‘the courts
reluctant to clash with the lawmakers on such issue’ showing their
unwillingness to develop the law.20 The
non-activist role of judges is further seen by Eduardo Reyes, who argues that
it was ‘institutionally appropriate’ for the courts to determine in cases where
there are compelling moral arguments. However, they should not only apply the
law but also develop the law which is why Steve Foster said Hale was judicially
brave as she was prepared to defy both parliament.

 

As well as this, we can look at the judicial
powers of interpretation and Richard H.S. Tur discusses legislative techniques.

Tur explains that many lawyers would use the literal rule and under section 2
of the Suicide Act: giving the plain ordinary meaning of the act, therefore
assisted suicide to not to be allowed.21 The
golden rule puts words into their context and uses the ordinary meanings unless
it has an absurd meaning.22 Tur explains that section 2(1) ‘may be read
to give it value and sense’ and Parliament’s intention is not for someone like
Mr Pretty’s to be guilty of any offence. This is achieved by applying an
ethical filter to the meaning of the provision such that it criminalizes
morally unjustified assisted suicide but not morally justified assisted suicide.

 

In conclusion, the Nicklinson is on the topic
of assisted suicide and there will be more cases and  case shows that judges are too willing to
impose 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. In
addition, in cases with compelling moral arguments, they should take a more
active role in developing the law as they can use their interpretation powers
and exceptions in the human rights act change and develop the law.

1 Regina (Nicklinson) and another v Ministry
of Justice and others (CNK Alliance Ltd and others intervening) 2014 UKSC
38

2 Suicide
Act 1961, s2

3 Regina (Nicklinson) and another v Ministry
of Justice and others (CNK Alliance Ltd and others intervening) 2014 UKSC
38

4 ibid.

5 ibid.

6 Human
Rights Act 1998

7 Halsbury’s
Laws (5th edn, 2013) vol 88A, para 125

8 Coroners and Justice Act 2009, S61

9 James Chalmers ‘Case Comment- Clarifying the law on assisted suicide?
Ross v Lord Advocate’ 2017 Edinburgh
Law Review

10 Steve
Foster ‘Still no right to die: a study in the constitutional limitations of the
UK judiciary’ 2017 Coventry Law
Journal

11 Human
Rights Act 1998

12 ibid. s6(3)

13 ibid
s3, s4

14 Convention
for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended) (ECHR) art 8

15 Suicide
act 1961, s2

16 ibid. s2(4)

17 Airedale NHS Trust v Bland (1992)
142 N.L.J. 1755

18 1966
Practice Statement 1966 1 WLR 1234

19 R
v R1992 1 A.C. 599,

20 Steve
Foster, ‘Still no right to die: a study in the constitutional limitations of
the UK judiciary’ (2017) 22(1) Cov LJ 57

21
James Holland and Julian Webb, Learning legal rules, 9th edition,
Oxford University press 2016, 263.

22 ibid