Assistedsuicide is the concept that when a person is incapable of terminating their ownlife due to circumstances such as physical disability, that someone else istherefore needed to aid in this process. Consequently, the problems surroundingthis area are whether crimes such as murder and manslaughter are to be appliedto the people attempting such things. There is much discussion on this bothlegally and morally on whether judges should or shouldn’t sentence person B forassisting in person As death. Judgesuse a range of ways to interpret the law.
Statutory interpretation is theprocess that judges use to apply the law to cases. The four main rules in whichjudges do this are via the Literal rule, the golden rule, and the mischief ruleand the purposive approach. Parliamenthas given the courts the ability to use these rules to be able to implement theright course of action, reading the same statute but interpreting it slightlydifferent. However, there are limits to such rules and there is discussion asto how far courts should go to interpret the law as parliament is the supreme law-makingbody and the courts are unelected and undemocratic in comparison. The lawon assisted suicide is found in Suicide Act 19611 (section 2). The Humanrights Act 19982incorporates elements selected from the European Convention on Human Rights andgives them special legal status as ‘Convention rights’.
3 Section 4 subsection 24 states that a judge canmake a declaration of incompatibility if they cannot interpret the domestic lawto coincide with a convention right. However, the judge cannot do anythingfurther with this declaration as it is then up to parliament to change thelegislation accordingly, therefore limiting their powers. The caseof Nicklinson5provides evidence that English Judges are willing to impose artificial andundesirable limits on their own power to change the law, especially in caseswith 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 EuropeanConvention on Human rights, saying it was within their rights to be able toseek help from a third party to be able to end their life in a private anddignified manner subject to some controls. They did this by saying the Courtshould read the legislation in a way that complies with the convention rights,or create a declaration of incompatibility. In this case the Secretary of Statesaid that this is not a contention which a domesticcourt should entertain. The second appeal was that the 2010 policy wasn’tspecific enough regarding the likelihood of third parties being prosecuted. Secondly,the Policy should be changed to make it clear that this person would not beheld liable. Consequently the DPP argued that it is not the courts place todictate what her policy should be. In the case of Pretty6,the European Court of Human Rights held that her desire to end her life did infact coincide with article 8.
1, it did not however with any other article. Thiswas decided in the Strasbourg court however he appeal still failed and she wasonly partially successful. The case found that the right todie is found within the right to respect for private and family life containedin article 8 of the Convention. Her appeal was dismissed due to the fact thecourt found that interference with this right is in accordance with the law asit provides protection. The evidence that this gives that English judges are alltoo willing to impose artificial limits on their own power even when theymorally they should take a more active role is, that they don’t issuedeclarations of incompatibility. In Lord Neuberger’s judgement in theNicklinson case7it was said that this contention is not capable of being raised before a courtdue to the United Kingdoms constitutional settlement, courts are there touphold the law given by Parliament. This is because it raises the question ofhow much power the courts should have in comparison to Parliament, hence is itthe courts job to question legislation or to apply it. However, by limitingthemselves in ways such as this it causes pain to families and individuals whootherwise would be able to give themselves the relief they desperately seek.
Furthermore, the DPP arguing that its not the courts placeto argue what her policy should be can seem to be morally wrong, in cases suchas this the defendants in question should be able to appeal and question policy’swhich affect their human rights. With moral arguments such as this, it could besaid that the court is too willing to impose limits upon itself becauseultimately it’s a human life that is in question and how can it be brought downsuch decisions when the person in question wants to end their life and have awilling third party to assist. It was made in The Suicide Act 1961 8 that it was legal tocommit suicide and not punishable by law for attempting to do so. So thatraises the question of why people who are unable to commit suicide on their ownbut can express their need for it, are unable to and are denied this right.
Inthis case the five judges held that the European Court had said that it was upto the convention states to decide if their own laws on assisted suicideinfringed article, so the fact that parliament had recently spoken on thismeant that the courts can refuse a declaration of incompatibility as it wouldseem inappropriate to them.9 This provides evidencethat judges can be seen to be too willing to impose limits on their own powerseven because as said in the judgement, courts waive their right to impose declarationsof imcompatability.However, it could be said that judges don’t limit theirpowers with regards to moral arguments.
This is shown in the case of Bland10,where the courts held the appeal that an omission to give/receive food isnot a positive act and patients have the right to refuse such things. Thedoctors are not to be found liable in such cases because patients are wellwithin their rights to refuse treatment. This is an example of the court takinga more active role in developing the law but this needs to be furthered byincluding positive acts from third parties where the defendants are unable tocommit such acts.Another example of when the courts were not willing toimpose limits upon themselves was in the case of re A (Children)11. In this case the courtsdismissed the appeal from the childrens parents, who were conjoined and sharedsome vital arteries, to keep the children together. Based on the doctorsprediction that the two together would not live longer than a few months butseparate, the smaller child will pass but the stronger of the two would be ableto live a relatively normal and healthy life, the courts decided to givepermission to the doctors to go ahead with the operation. This was inprotection of the children and even if it infringed one of the child’s rightsit protected the other. This court has taken a more active role in developingthe law in this case and not limiting itself even if it could seenunconstitutional as it was against the parents’ wishes.
Another reason that the courts don’t apply artificiallimits on themselves when morally they shouldn’t, is the fact that the problemsurrounding assisted dying have been spoken about in Parliament regularly inrecent years. The proposition of the Assisted dying bill12 shows the courts thatParliament are still considering matters such as this. This bill was not passedas it was not agreed upon in the House of Lords so therefore will not becomelegislation, showing the courts that if they agreed to allow people such as MrsNicklinson assistance in death that they would be directly going againstParliament and going against the nature of the courts as they are not theSupreme law making body, Parliament is. This gives evidence from the case, thatthe limits courts face are not artificial (however seemingly undesirable) as itis not the courts place to question parliament.The fact that The Suicide Act is in direct opposition toarticle 8 has caused a lot of problems in the courts as can be seen from themany cases. However, in Lord Neuberger’s Judgement of the Nicklinson case he mentions that Lord Falconer has proposed somereforms via the Falconer report.
One of these being the idea that only peoplewho are terminally ill are to be able to be grated assisted dying and only thosewho have six months to live.Conclusively, the statement that Lord Neuberger in theNicklinson case gives evidence that judges in England are too quick to impose undesirableand artificial limits on their powers even when it seems like they should takea more active role in developing the law is in fact true because it shows inthis case that judges will fail to issue declarations of incompatibility evenif our domestic law infringes article 8. This problem will continue to be anissue until Parliament can either resolve it by changing parts of section 2 toinclude third parties being able to assist in suicide if the victim in questionhas expressed they are fully willing or to pass a law such as the AssistedDying Bill. 1The Suicide Act 1961 sct 2.2Human Rights Act 1998 sct 1.3Holland, J.
and Webb, J. (2016). Learninglegal rules. 9th ed. Oxford: Oxford University Press, p.
302. 4Human Rights Act 1998 sct 4(2)5 Regina (Nicklinson) and another v Ministryof Justice and others (CNK Alliance Ltd and others intervening) 2014 UKSC38.6 R. (on the application of Pretty) v DPP(2346/02)7Ibid para 56.
8The Suicide Act 1961 sct1.9 SteveFoster, ‘Still No Right To Die: A Study In The Constitutional Limitations OfThe UK Judiciary’ (2018) Case Comment Coventry Law Journal10 AiredaleNHS Trust v Bland 1993 AC 789 , 885.11 re A (Children) (Conjoined Twins: SurgicalSeparation) 2001 Fam 147 (“Conjoined Twins”). 12 AssistedDying Bill HL 2016-17.