The Assissted Dying Bill: Limit of Court Power

Assisted suicide is the concept that when a person is incapable of terminating their own life due to circumstances such as physical disability, that someone else is therefore needed to aid in this process. Consequently, the problems surrounding this area are whether crimes such as murder and manslaughter are to be applied to the people attempting such things. There is much discussion on this both legally and morally on whether judges should or shouldn’t sentence person B for assisting in person as death.

Judges use a range of ways to interpret the law. Statutory interpretation is the process that judges use to apply the law to cases. The four main rules in which judges do this are via the Literal rule, the golden rule, and the mischief rule and the purposive approach. Parliament has given the courts the ability to use these rules to be able to implement the right course of action, reading the same statute but interpreting it slightly different. However, there are limits to such rules and there is discussion as to how far courts should go to interpret the law as parliament is the supreme law-making body and the courts are unelected and undemocratic in comparison.

The law on assisted suicide is found in Suicide Act 1961 (section 2). The Human Rights Act 1998 incorporates elements selected from the European Convention on Human Rights and gives them special legal status as ‘Convention rights’. Section 4 subsection 2 states that a judge can make a declaration of incompatibility if they cannot interpret the domestic law to coincide with a convention right. However, the judge cannot do anything further with this declaration as it is then up to parliament to change the legislation accordingly, therefore limiting their powers.

The case of Nicklinson provides evidence that English Judges are willing to impose artificial and undesirable limits on their own power to change the law, especially in cases with compelling moral arguments to do so. In this case, there were two appeals, the first being Mrs. Nicklinson and Mr Lamb, who used Article 8 of the European Convention on Human rights, saying it was within their rights to be able to seek help from a third party to be able to end their life in a private and dignified manner subject to some controls. They did this by saying the Court should read the legislation in a way that complies with the convention rights, or create a declaration of incompatibility. In this case the Secretary of State said that this is not a contention which a domestic court should entertain. The second appeal was that the 2010 policy wasn’t specific enough regarding the likelihood of third parties being prosecuted. Secondly, the Policy should be changed to make it clear that this person would not be held liable. Consequently, the DPP argued that it is not the courts place to dictate what her policy should be.

In the case of Pretty, the European Court of Human Rights held that her desire to end her life did in fact coincide with article 8.1, it did not however with any other article. This was decided in the Strasbourg court however he appeal still failed and she was only partially successful. The case found that the right to die is found within the right to respect for private and family life contained in article 8 of the Convention. Her appeal was dismissed due to the fact the court found that interference with this right is in accordance with the law as it provides protection. The evidence that this gives that English judges are all too willing to impose artificial limits on their own power even when they morally they should take a more active role is, that they don’t issue declarations of incompatibility. In Lord Neuberger’s judgement in the Nicklinson case it was said that this contention is not capable of being raised before a court due to the United Kingdom’s constitutional settlement, courts are there to uphold the law given by Parliament. This is because it raises the question of how much power the courts should have in comparison to Parliament, hence is it the courts job to question legislation or to apply it. However, by limiting themselves in ways such as this it causes pain to families and individuals who otherwise would be able to give themselves the relief they desperately seek.

Furthermore, the DPP arguing that it’s not the courts place to argue what her policy should be can seem to be morally wrong, in cases such as this the defendants in question should be able to appeal and question policy’s which affect their human rights. With moral arguments such as this, it could be said that the court is too willing to impose limits upon itself because ultimately it’s a human life that is in question and how can it be brought down such decisions when the person in question wants to end their life and have a willing third party to assist. It was made in The Suicide Act 1961 that it was legal to commit suicide and not punishable by law for attempting to do so. So that raises the question of why people who are unable to commit suicide on their own but can express their need for it, are unable to and are denied this right. In this case the five judges held that the European Court had said that it was up to the convention states to decide if their own laws on assisted suicide infringed article, so the fact that parliament had recently spoken on this meant that the courts can refuse a declaration of incompatibility as it would seem inappropriate to them. This provides evidence that judges can be seen to be too willing to impose limits on their own powers even because as said in the judgement, courts waive their right to impose declarations of incompatibility.

However, it could be said that judges don’t limit their powers with regards to moral arguments. This is shown in the case of Bland, where the courts held the appeal that an omission to give/receive food is not a positive act and patients have the right to refuse such things. The doctors are not to be found liable in such cases because patients are well within their rights to refuse treatment. This is an example of the court taking a more active role in developing the law but this needs to be furthered by including positive acts from third parties where the defendants are unable to commit such acts. Another example of when the courts were not willing to impose limits upon themselves was in the case of A (Children). In this case the courts dismissed the appeal from the children’s parents, who were conjoined and shared some vital arteries, to keep the children together. Based on the doctor’s prediction that the two together would not live longer than a few months but separate, the smaller child will pass but the stronger of the two would be able to live a relatively normal and healthy life, the courts decided to give permission to the doctors to go ahead with the operation. This was in protection of the children and even if it infringed one of the child’s rights it protected the other. This court has taken a more active role in developing the law in this case and not limiting itself even if it could be seen unconstitutional as it was against the parents’ wishes.

Another reason that the courts don’t apply artificial limits on themselves when morally they shouldn’t, is the fact that the problem surrounding assisted dying have been spoken about in Parliament regularly in recent years. The proposition of the Assisted Dying Bill shows the courts that Parliament are still considering matters such as this. This bill was not passed as it was not agreed upon in the House of Lords so therefore will not become legislation, showing the courts that if they agreed to allow people such as Mrs. Nicklinson assistance in death that they would be directly going against Parliament and going against the nature of the courts as they are not the Supreme law making body, Parliament is. This gives evidence from the case, that the limits courts face is not artificial (however seemingly undesirable) as it is not the courts place to question parliament. The fact that The Suicide Act is in direct opposition to article 8 has caused a lot of problems in the courts as can be seen from the many cases. However, in Lord Neuberger’s Judgement of the Nicklinson case he mentions that Lord Falconer has proposed some reforms via the Falconer report. One of these being the idea that only people who are terminally ill are to be able to be grated assisted dying and only those who have six months to live.

Conclusively, the statement that Lord Neuberger in the Nicklinson case gives evidence that judges in England are too quick to impose undesirable and artificial limits on their powers even when it seems like they should take a more active role in developing the law is in fact true because it shows in this case that judges will fail to issue declarations of incompatibility even if our domestic law infringes article 8. This problem will continue to be an issue until Parliament can either resolve it by changing parts of section 2 to include third parties being able to assist in suicide if the victim in question has expressed they are fully willing or to pass a law such as the Assisted Dying Bill.