Morality and law can sometimes make strange bedfellows. If one explores the first written “laws” – ostensibly of divine inspiration, namely the Ten Commandments or Decalogue1, then the VI Commandment stipulates: “Thou shalt not kill”. This is an unambiguous statement and few would doubt that murder is a bad thing. But killing someone may not be murder. We can question the acts of self-defence and of manslaughter – be it voluntary or involuntary, and assess interruptions of mitigating circumstances such as self-defence or diminished responsibility, or the McNaughten defence of temporary insanity. What of reckless disregard or wilful blindness in committing an act that leads to a death of another – perhaps driving without due care and attention or driving whilst under the influence of drink? – Furthermore, can war ever be “just” given the apparent absolute morality of the VI Commandment? What of a mercy killing, which in essence is the rationale of this judgement. And what of the idea of the law evolving to satisfy societies evolution. Is this not the essence of common law or that part of English law that is derived from custom and judicial precedent rather than statutes2?
The judgement of Lord Neuberger was the proxy for a compelling advancement for judicial attitudes which surrounded the heavily debated topic of assisted suicide. Since the amendment of the Suicide Act3, controversy spread both publically and in the internal sphere of the UK courts, and its Parliament. The case of Regina (Nichlinson) and another v Ministry of Justice and others (CNK Alliance Ltd and other intervening) 2014 UKSC 384 was a judgement held considerably by the UK’s Supreme Court. It questioned, in accordance to English law, whether those deemed incapable had the right to die. The result of the appeals being, a continuous set of dismissals. These led to the appeals which questioned both the incompatibility of article 85 of the convention, and whether the 2010 Policy was in fact lawful.
Following the cases covered, and in particular that of the Nicklinson case, offered advanced assessments which ultimately, questioned the validity of placement in roles of government. In particular, it raised the unconventional question on whether or not it was, and is the position of the courts or of Parliament to handle such a dialectic discussion. Lord Neuberger took to the view that the courts were trying to warrant Parliament to consider such a position. Although, he (among others) felt it was not appropriate to do so in the case of Nicklinson, he felt that it was time that the UK Parliament examined the potential notion of change. Alongside his view, the majority in the Supreme Court at the time concluded that the prospect of appealing English law on assisted suicide was not a matter for the UK courts, but for its Parliament. Proving that English judges take an inconsistent approach in deciding case law.
It was held unanimously by the decision of the Supreme Court that the question of whether article 8 was incompatible, was not for the European Convention of Human Rights to decide. This is because they believed its decision belonged inward to the UK’s margin of obligation, and, therefore was solely up to the UK to adjudge. Overall, it became clear that Parliament now had to face the fact that s.2 of the suicide act 1961, required an update. Arguably, failure to do so would result in endless public scrutiny and pressure.
Affably, not only Lord Neuberger believed that it was within the courts authority and constitutional right to form a declaration. Lords Mane, Kerr, Wilson and Lady Hale agreed that prohibition on s.2 of the assisted suicide act was incompatible with article 8. Surprisingly, despite these Justices informal agreements, three of which (Lord Mance, Lord Wilson and Lord Neuberger) declined to grant the declaration of incompatibility. This would have legally stated that they felt that the Human Rights Act6, such terms of a statute are incompatible with the UK’s obligations. Alongside this there was still opposition to the matter. Other Justices came to the result that Parliament would be better suited for this altercation as it was in their beliefs that it contained a higher level of eligibility. Moreover, the decision to not submit the doctrine, is a clear example of how English judges are sometimes reluctant to set aside their ideals due to legal moralism; be it judges making moral decisions or judges making decisions in morally complex cases. Had the submission gone through, one must wonder the potential outcome and effect on change, on the law of assisted suicide.
The judgement also covers the appeals of Martin, which involved referral to the European Convention of Human Rights7. In this case, it was confirmed that the courts judges did indeed have the right to make the decision. This is because, according to the convention it is within the ‘member states’ jurisdiction. As known, the courts in the UK dismissed the Strasbourg courts notion, claiming that it would then be ‘inconsistent’ within the laws on assisted suicide and euthanasia in English law. Martin’s case, although not as direct, shows how the UK courts were given direct legal authority in the decision making. Despite the dispute being in their margin of appreciation, the judges chose not to allow it.
Separate from the case, former Labour Chancellor, Lord Falconer created headlines with his highly appreciated view in wanting the act updated. Altercating that one could not state human life was ‘sacred’ as an argument, given that as of 1961, suicide was in technicality, made legal. Lord Falconer’s approach to the conversation is alongside the publics majority, which as of a 2015 poll, was 82 percent in favour to his proposed change. It is the pinnacle of debate, but ultimately a matter of opinion on whether we should aim to lean towards the sanctity of life, by not changing the law, and by up keeping the construction of laws so that life is protected. Or if we should develop and refine the act to follow the ideals of personal autonomy, of which people are free to make the choice to end their own life.
Since then, it is said that the 2017 case of Motor Neurone disease patient Noel Conway8 is the ‘first challenge to law’ since the Nichlinson case. Proving the assumptions of Lord Neuberger, that the matter of leaving the assisted suicide act as it is, would not evanesce. In Steve Fosters article; ‘Still no right to die9’ he addresses the issue of assisted suicide through litigation in not only the Nichlinson case but in the new case of Conway. Furthermore, he discusses the complication regarding the current UK’s law being intertwined with questionable obligatory relevance to follow alongside the European Convention of Human Rights.
Academic author Nataly Papadopoulou, follows the primary cases of Nicklinson and Pretty10 in her journal11 in uncovering their distinctive collision in-regards-to the human rights law and legal ruling of assisted suicide. She acknowledges how judiciary views on the matter have transitioned over time, and case. In doing so, she exposes and draws focus to the modern-day issue with the restricted suicide act. Notably, the Supreme court and House of Lords approaches in both cases offer interesting individualities. In the Nicklinson case the outcome ruled by the Supreme Court presented some judges opinions to be in favour of Mr Nicklinson. Being, that they disagreed with their court’s ruling but felt that it required a reformation. Dissimilarly, in the case of pretty (notably thirteen years prior) the court treated it with a dismissal majority. The large time frame difference between the two cases shows the growing change of opinion on the matter. Despite the case of Nicklinson being clearly distinctive to potential change to the law, the dismissed case of Conway, with similar appeals and notions, addresses the remaining opposition that is still present in 2017.
This issue goes beyond the Nicklinson judgement, it can even be seen from the case of Purdy12. Of which it’s success opened up doors to discussion as to decision making powers appropriate placement. Seeing of which her previous two appeals, were dismissed under court rulings. Purdy’s representative Saimo Chahal stated “I always knew we would have to go to the House of Lords to get a judgment that was reasoned and considered13.” Evidentially, we can see the significance of an outcome, based on the setting of decision making. Catherine O’Sullivan, another academic author has weighed in on this controversy in her article ‘Mens Rea, motive and assisted suicide’14. It is in her belief that although the Suicide Act 1961 has been “effectively amended”15 it remains as she described it as “problematic”.
The medical profession is renowned for its following the Hippocratic Oath, which stipulates the desire not to cause harm to a patient – yet, is it right to “harm” a patient by prolonging an agonising life but facilitating their death and thus bring them peace, if that is what the patient so desires? This is reverse logic as prolonging an agonising life would bring further agony. To do otherwise might lead to the accusation of it being a hypocritical oath.
Lawyers are not medics, and the true role of making law should always rest with Parliament but the advantage of common law is that it allows a doctrine of precedent to apply. In addition, a decision is made according to the principle of the ratio decidendi, or the actual decision of the judge, as opposed to the principle of obiter dicta. Obiter dictum is a Latin phrase meaning “other things said”, that is, a remark in a judgment that is “said in passing”. For the purposes of judicial precedent, ratio decidendi is binding, whereas obiter dicta are persuasive only.
It is of belief, if we could identify a public moral consensus on assisted suicide then there is a chance that the courts would be justified in taking action even if parliament refused to do so. It is of notability, that despite Parliament’s supreme law-making power, it is still not a match for the politics controlled by the voice of the British public. Too, one must note that despite the outcomes being repetitive, there is still flexibility among the judge’s common law precedent. Arguably this is preferable in comparison to pure statue. Likewise, one must question and compare our constitutional system against those codified of other countries, and how their system affects their common law-making abilities.
The idea that English judges are too willing to impose artificial and undesirable limits on their own power to change the law does not come as a surprise. Evidently, this can be seen by the past selection of numerous proposals taken to Parliament. Although the sizing of the case of Nicklinson arguably triumphs the rest, one must simply look back to proposals brought about from 2003 to 2005. It is clear that judges restrain their abilities and capabilities. More so however, that this is in fact a matter for Parliament and not to be addressed visa vi individual cases brought to court. This medico-legal question seems to be a never-ending attraction to public opinion and Parliamental debate. Despite its potential for success, there is still not a grant of immunity for assisting suicide, nor a clear path to this development.
1 Said to have been “written with the finger of God” (Exodus 31:18). The stone tablets were placed in the Ark of the Covenant (Exodus 25:21, Deuteronomy 10:2,5).
2 Oxford definition of common law
3 Suicide Act 1961
4 R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice 2014 UKSC 38
5 Human Rights Act 1998, Article 8 s1 (3) (7)
6 Human Rights Act 1998
7 European Convention of Human Rights 1950
8 R (Conway) v Secretary of State 2017 EWHC 2447
9 Steve Foster ‘Still no right to die: a study in the constitutional limitations of the UK judiciary’
10 R. (on the application of Pretty) v DPP 2001 EWHC Admin 788
11 Nataly Papadopoulou, ‘Losing our grip on death: What now for assisted dying in the UK?’
12 R (Purdy) v DPP 2009 UKHL 45
13 Saimo Chahal, ‘Debbie Purdy wins ‘significant legal victory’ on assisted suicide’, the Guardian, (2009)
14 Catherine O’Sullivan, ‘Mens Rea, motive and assisted suicide: does the DPP’s Policy go too far?’ (2015) 35(1) Legal Studies 96
15 Catherine O’Sullivan, ‘Mens Rea, motive and assisted suicide: does the DPP’s Policy go too far?’ (2015) 35(1) Legal Studies 96