On 25th June 2014, the UK Supreme Court, sitting as a full bench of nine, handed down judgment in the joined cases of R (on the application of Nicklinson and another) v Ministry of Justice, and R (on the application of AM) (AP) v Ministry of Justice and DPP. The full background to the cases, and the conclusions reached, may be found in the press summary released by the court.
The court was required to consider two broad issues. One was whether the guidance of the Director of Public Prosecutions on when assisted suicide would be prosecuted was sufficiently clear. It was unanimously held that it was. The other, which was whether the court could declare that the present prohibition on assisted suicide was incompatible with the right to private life under Article 8 ECHR, was more controversial.
Two questions predominated the judgment on the latter issue. First, given that the ECtHR had previously held that laws on assisted suicide fell within the margin of appreciation of member states, was it nonetheless open to national courts to decide whether there had been an infringement of Convention rights? The court unanimously held that the compatibility of the UK’s assisted suicide laws with Article 8 fell within the state’s margin of appreciation, and was therefore for the UK to decide. It was pointed out that Article 2 of the Human Rights Act requires UK courts to have regard to ECtHR jurisprudence, but not to be bound by it.
The more difficult question was whether, given the nature of the issue, it was for the courts rather than Parliament to decide. Five of the nine Justices decided that the court could do so. Lord Neuberger noted, at paragraph 98, that the court has previously had to rule on cases raising important moral issues (for instance, Airedale NHS Trust v Bland, involving the withdrawal of medical treatment from an individual in a permanent vegetative state). Further, Parliament had not yet sought to intervene in the present debate with legislative solutions, and in any case, had, by virtue of the Human Rights Act, “cast on the courts the function of deciding whether a statute infringes the Convention.”
It was pointed out at paragraph 107 that the court was not being asked to set up a specific scheme for assisted suicide, which would plainly go beyond its mandate. In contrast, it was not forbidden from concluding that there were a number of possible schemes.
Nevertheless, despite deciding that the court could hold that the present state of the law on assisted suicide was incompatible with the applicants’ Article 8 right, the majority of that majority (three of the five) held that the court could not in the instant case. Lord Neuberger, at paragraph 116, outlined four reasons for this finding: (1) the question raised a difficult and controversial issue; (2) the incompatibility was not simple to identify or cure; (3) Parliament had actively considered the issue on a number of occasions; (4) the House of Lords, in the previous case of Pretty v DPP, had held that a declaration of incompatibility of the same legislation would be inappropriate.
Interestingly, Lord Sumption, of the minority who held that courts could not make a declaration under any circumstances, relied heavily on precisely the moral arguments that Lord Neuberger had deemed to be of little weight, or in any case, no deterrent to judicial intervention. Lord Sumption goes further, stating that issues involving a choice between fundamental moral values are “inherently legislative in nature.” This appears to fly in the face of cases such as Bland. Indeed, Lady Hale and Lord Kerr, who would have made a declaration of incompatibility in the present case, themselves engage with moral issues in reaching this conclusion.
It is likely that, for pragmatic reasons, the fact that Parliament was currently debating the issue was, in reality, determinative. In particular, both the majority and minority emphasised the fact that the Assisted Dying Bill was presently before Parliament. Given the judiciary’s past willingness to concern itself with thorny moral questions, clear inaction by Parliament in this matter would certainly have led to a different result. Indeed, Lord Clarke would “expect the court to intervene” in such a situation. The majority is therefore clear – difficult moral questions do not of themselves preclude judicial intervention.