A Right to Die – Part 2: The Judgment

The Supreme Court has ruled that there is no right to assisted suicide. Those who are physically unable to end their own lives cannot receive assistance to die from individuals and medical professionals.

For the full background to the case and the issues, see the first part of this article, ‘A Right to Die – Part 1: The Background’. This article proceeds directly to discuss the Supreme Court’s judgment.

The Judgment – Summary

The court, by a majority of seven to two, dismissed the appeals brought by Mr Nicklinson and Mr Lamb. It unanimously allowed the appeal brought by the DPP. Therefore there was no right to assisted suicide and the DPP was not required to clarify his policy on prosecutions for assisted suicide.

The Judgment

The Supreme Court was required to determine two issues. Firstly, it had to determine whether the present law on assisting suicide was incompatible with article 8. Secondly, it had to determine if the DPP was required to clarify his policy on when  a prosecution would be brought for assisted suicide.

Was the Present Law on Assisting Suicide Incompatible with Article 8?

The court unanimously held that the question of whether to impose a general ban on assisted suicide lied within the margin of appreciation accorded to the United Kingdom. The ‘margin of appreciation’ is the area of discretion left to each country by the European Court of Human Rights within which it will not interfere. The margin is often wider on controversial and sensitive issues where there is no consensus across the countries that make up the Council of Europe. Accordingly, whether the current law on assisted suicide was incompatible with article 8 fell to be decided by the Supreme Court under the Human rights Act 1998.

The court held that the ban on assisted suicide in section 2(1) of the Suicide Act 1961 did interfere with the right to a private life guaranteed by article 8 because it prevented those who were physically unable to end their own lives from determining how and when they should die. Thus the ban could only be justified if the ban satisfied the requirements of article 8(2) – the ban had to be ‘necessary in a democratic society’ for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights of others.

Five of the Justices, Lords Neuberger, Mance, Kerr, Wilson and Lady Hale, held that the court had the authority under our constitution to make a declaration of incompatibility in relation to section 2 of the 1961 Act. A declaration of incompatibility is a declaration under section 4 of the Human Rights Act 1998 that the law is incompatible with one or more of the rights guaranteed by the European Convention. However, Lords Neuberger, Mance and Wilson concluded that while the sensitive and controversial nature of the issue of assisted suicide did not prevent the court from making a declaration, it would be inappropriate to do so until Parliament had been given the opportunity to consider the issue, in essence because it and the courts had steadfastly been against assisted suicide in the past and the issue needs to be carefully considered.

Further, Lords Neuberger, Mance and Wilson said that the main justification for the ban was the apparent risk to the lives of vulnerable people who may feel a burden to their family or society and who might take their lives if assisted suicide were an option, but would otherwise not do so. The interference with Mr Nicklinson’s and Mr Lamb’s rights was grave and the arguments in favour of the current law were by no means overwhelming. However, even if it had been appropriate for the court to grant a declaration of incompatibility (which it was not in their judgment), their Lordships would not have done so because of evidential issues related to how death would actually be brought about and what safeguards would be in place.

On the other hand, Lady Hale and Lord Kerr would have issued a declaration of incompatibility. They concluded that article 8 confers a right on individuals to decide by what means and at what point their life will end. The ban on assisted suicide made no exception for those freely choosing to end their life and was therefore incompatible with article 8.

Lords Sumption, Hughes, Reed and Clarke also accepted that the court had jurisdiction to determine whether the ban on assisted suicide violated article 8, but thought that the question turns on issues which Parliament is in principle better qualified to decide. Therefore, under the present circumstances, the courts should respect Parliament’s assessment. The question required a judgment to be made about the relative importance of the right to commit suicide and the right of the vulnerable, especially the old and sick, to be protected from pressure to so. In reality, it was unlikely the risk of pressure could ever be wholly eliminated and therefore the issue was how much risk was acceptable. That involved important issues of social policy and a moral value-judgment, which was more suited to determination by Parliament as the part of government which represents the people.

Accordingly, while the court unanimously held that it had the authority to determine the issue, it decided, by a majority of seven to two, that the current ban on assisted suicide does not violate article 8 of the European Convention.

Was the DPP’s Guidance Lawful?

As to the second part of the appeal, the court unanimously allowed the DPP’s appeal, overturning the Court of Appeal’s judgment. The court held that it was one thing for it to decide that the DPP must have a policy, but it was quite another for it to dictate what should be in that policy. That was for the DPP. The exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according the circumstances of each individual case, were all proper and necessary features of the system of prosecution in the public interest. Thus the appeal was allowed.

The full judgment can be read here.

Comment

The Supreme Court’s judgment is unsurprising. Whether assisted suicide should be permitted is a hugely controversial issue and it is not something the courts will feel content to definitively rule on until the issues are better understood. However, Parliament has been firmly warned; the Supreme Court has indicated that if Parliament does not satisfactorily deal with the issue in a reasonable time then there is the ‘real prospect that a further, and successful’ challenge will be made to the current ban.

Parliament is currently debating the issue as Lord Falconer attempts to navigate his Assisted Dying Bill through Parliament. This would permit the terminally ill to be assisted to die if they are terminally ill, have less than six months to live and have a clear and settled intention to end their own life. Interestingly, even if this Bill becomes law it would not assist any of the individuals in this case because they are not terminally ill. A wider law would be necessary. Developments in this area will be awaited with interest.

For my own part, I am in favour of assisted suicide. What are your thoughts?