Although Parliament is clearly opposed, a way is opening in the courts
Noel Conway and supporters
A possible tipping point in overturning the United Kingdom’s blanket ban on assisted suicide (under s2(1) Suicide Act 1961) has recently been highlighted. That possible tipping point comes in the form a challenge to the legality of the ban by Mr Noel Conway.
It was argued the importance of Mr Conway’s case lies in its long term chances of success. Despite Mr Conway’s case being in its initial stages, it has recently cleared an important legal hurdle in the English Court of Appeal; Mr Conway can challenge the assisted dying ban.
To recap, Mr Conway’s attempts to overturn the ban arise from tragic and distressing facts. He has Motor Neurone Disease, and he has largely lost his mobility. He uses a wheelchair, and needs assistance with many everyday activities.
In order to attempt to overturn law, Mr Conway seeks a declaration under s4(2) of the Human Rights Act 1998 that s2(1) Suicide Act 1961 (which makes no exceptions to criminality for those who assist suicide) is incompatible with his Article 8(1) right to respect for private and family life, under the European Convention of Human Rights.
A declaration of incompatibility does not itself overturn the law. It is of declaratory effect only, and refers the issue to Parliament for a further decision, informed by the courts view of the law. As is noted by Lady Hale in Nicklinson v Ministry of Justice (at ):
Parliament is then free to cure that incompatibility, either by remedial order under section 10 of [the Human Rights Act] or (more probably in a case of this importance and sensitivity) by Act of Parliament, or to do nothing. It may do nothing, either because it does not share or view that the present law is incompatible, or because, as a sovereign Parliament, it considers an incompatible law preferable to any alternative.
As noted above, Mr Conway’s legal challenge is not even at this stage. In order to even begin argue his case, Mr Conway needed permission to appeal to the Court of Appeal, and permission to apply for judicial review.
And this is where Mr Conway’s legal challenge becomes incredibly important in the short term.
In April the Court of Appeal granted permission to appeal and permission to apply for judicial review. The decision itself is significant; in granting permission to appeal, the court has to be satisfied that the appeal would have a reasonable prospect of success, and that the issues raised, concerning the rights of someone who wishes to end their lives but is unable to do so without assistance, are of general public importance.
Just as important as the decision, however, was the court’s response to one of the concerns raised in Nicklinson: that the court would ‘need to be satisfied that there was a physically and administratively feasible and robust system whereby the applicants could be assisted to kill themselves’, as well as satisfying concerns to protect the weak and vulnerable (Lord Neuberger, at ). A range of evidence was presented to the court by consulting clinicians, psychiatrists, psychologists, an intensive care physician, and a legal academic. In concluding, the court states the following (at ):
It is arguable that the evidence demonstrates that a mechanism of assisted dying can be devised for those in Mr Conway’s narrowly defined group that is practical so as to address one of the unanswered questions in Nicklinson.
The key difference between this statement of feasibility, and statements made in Nicklinson that alternative systems for assisted death may be viable (Lord Neuberger at -,  & ; Lord Wilson at ; Lady Hale at -; Lord Kerr at ), is that the court is saying that this is directly warranted by ‘a more-wide ranging selection of primary factual and expert evidence’ (). The statement in effect goes beyond the legal mechanics for such a system, and appears to consider the manner of the assisted death, once that legal decision has been made.
Moreover, Mr Conway can rely on the court’s direct conclusion (that factual and expert evidence bears out it is practically possible for Mr Conway to remain in control of the final acts required to bring about his death) in relation to two points in arguing his legal case. Mr Conway might be able to rely on this conclusion to argue the outright prohibition on assisted dying disproportionately interferes with his right to respect for private and family life, as the ban does far more than reasonably necessary to protect the weak and vulnerable.
Second, as the ban does more than reasonably necessary, Mr Conway may also be able to argue the ban therefore does not strike a fair balance between the rights of the individual and interests of the community.
The court was also persuaded by Mr Conway’s argument that, since Parliament has made a decision not to change the law, he should be entitled to argue that now is the right time for the courts to make a declaration of incompatibility, and that they are well within their rights to do so.
That the current will of Parliament is not to change the law is clear in light of recent events. The Assisted Dying Bill 2016-2017 will make no further progress since Parliament has prorogued for the 2016-2017 session, as well the outcome of a recent House of Lords debate in March, where it was concluded that ‘the legal, administrative, practical and resource implications of any change to the law in this highly controversial area are considerable. We cannot in the very limited time available this evening do justice to them’.
However, the implication from a majority of Supreme Court Justices in Nicklinson is that Parliament should change the law, and that a future application for a declaration of incompatibility would likely succeed if it did not satisfactorily address the issue. If it therefore does reach the Supreme Court, it may very well be a declaration of incompatibility is issued. Though Parliament may decide not to remedy the incompatibility, it would no doubt be under considerable pressure to do so, as there would now be a formal request to remedy the human rights incompatibility in the assisted dying legislation.
What about Brexit?
One final factor that may add some degree of uncertainty to whether the law on assisted dying will be revised is the impact of Brexit on the UK’s human rights law, domestically and internationally. However, a few points are worthy of note here, and are important in understanding the human rights implications of Brexit.
The first is that the European Convention of Human Rights (ECHR) is an instrument of the Council of Europe, enforced by the European Court of Human Rights, and so is completely separate to the European Union. Whether to remain in the EU is what was decided in the referendum on 23 June 2016.
The EU does have its own human rights treaty, the Charter of Fundamental Rights. These are part of the UK’s international legal commitments. The UK also has its own domestic human rights commitments under the HRA. Section 2(1) of the HRA makes clear that judgments of the European Court of Human Rights are to be ‘taken into account’ by domestic courts when interpreting the ECHR, but are not binding. Finally, there are the current Conservative plans to repeal the Human Rights Act, and replace this with a British Bill of Rights and Responsibilities.
All this means there are a number of scenarios which could occur, given there are two proposals for change of the UK’s human rights law: one international, one domestic. But despite all this, Conservative proposals do note ‘it would be wrong to renounce the Convention unilaterally when it is not our principled commitment to fundamental human rights that has changed’.
Likewise, the Parliamentary Joint Committee on Human Rights notes, in its report on the human rights implications of Brexit, ‘the Government will continue to have obligations under Article 8 ECHR’, notwithstanding the significant concerns the Joint Committee report raised regarding the future framework for protecting fundamental rights in UK.
This might mean there is a relatively narrow opportunity in which a revised law on assisted dying is created. Importantly though, questions of the future human rights framework in the UK, are irrelevant to whether it is now institutionally appropriate for the court to make a declaration of incompatibility regarding current legislation. The progression of Mr Conway’s case demonstrates that the legal debate on assisted dying has been reopened—and with that, the possibility that action on assisted dying in the United Kingdom might soon become a reality.
Clark Hobson is a lecturer at the University of Leicester, UK.
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