Detail from a photograph by Brian | CreativeCommonsFiona Maye is sixty – and a judge in the Family Division of the High Court. Her husband’s about to leave her for a younger woman, she fears, as a case comes before her that will test both her values, and her judgement. A seventeen year old is refusing desperately needed treatment that would save his life, because his religion – his parents have brought him up to be a Jehovah’s Witness – doesn’t allow blood transfusions. The hospital wants her to order the treatment be carried out in spite of his, and his parents’, opposition. What follows will test both the law and the judge herself.

Like all Ian McEwan’s work, his latest is compelling reading, and this compact book – it’s just over 200 pages in this hardback edition – can easily be got through in a few sessions. I heard McEwan on the radio last week insist it was a “short novel” rather than a novella, length being his criterion. But The Children Act does have the spare simplicity and single-mindedness of a novella.

It’s set in the extremely comfortable world of the successful London upper middle class, a milieu I’d like McEwan to get away from: there is a socially unimaginative feeling about it (a feeling I’ve perhaps carried over to this novel about a “top” London judge from Saturday, McEwan’s novel about a “top” London surgeon) which contrasts unfavourably with the broader world he deals with in earlier works like The Cement Garden and The Innocent. To be fair, from his Guardian piece this weekend McEwan is obviously very alive to some of the clichés he’s playing with – the big case coinciding with a crisis in the detective’s, or in this case the judge’s, private life.

This, Fiona decided as her taxi halted in heavy traffic on Waterloo Bridge, was either about a woman on the edge of a crack-up making a sentimental error of judgement, or it was about a boy delivered from or into the beliefs of his sect by the intimate intervention of the secular court. she didn’t think it could be both. The question was suspended as she looked to her left, downstream towards St. Paul’s. … Beyond desultory small talk as they left the Courts of Justice, they had not spoken. Only proper, to keep a distance.

On law, the novel’s not wholly convincing. I’m no specialist in consent to treatment cases like this involving children, but would there really be a serious argument about “Gillick competence” in the case of someone nearly eighteen? And there’s the odd jarring terminological error, such as “prohibitive steps order” (it’s actually a “prohibited steps order”, because it prohibits anyone from taking specified steps in relation to a child). A judge is said to “sum up” when he’s actually passing sentence.

But these are trivial cavils from someone whose head’s full of legal. The Children Act is a fair attempt at getting inside the world of law (or “the law”, as the book consistently calls it). Indeed, the novel’s title alone is a relief, and may do a little to offset the misconception widespread among the public (and book reviewers) that the legislation is called the “Children’s” Act. It’s especially interesting that McEwan is attracted to the prose of legal judgments and to the way citation of older decisions can resemble literary reference. What doesn’t come across is the way precedent operates as a framework for systematic reasoning.

My only serious criticism of McEwan’s approach to law relates to his tangential treatment of criminal justice, in a passage near the end of the book which, going by his Guardian piece, stems from a particular incident which I think has put him on the side of those campaigning against the law of joint enterprise. Fair enough. But McEwan seems as a result to see criminal law as institutionally unjust, in contrast to family law’s nuance and honest imperfection. I wonder whether these black-and-white feelings would survive much time spent in criminal courts.

McEwan insults the “perfectly competent” legal aid lawyers who do most to combat the injustice that angers him, when he implies late in the book that a privately paid silk (who happens also to be a jolly sensitive singer of Lieder) must be more committed, and better. This is the moment when McEwan’s personal experience of criminal justice collides with his arguably limited social outlook. I myself would advise no one to spend £20,000 on mitigation by Mark Berner QC. While there’s plenty of room for a serious novelist like McEwan to tackle the criminal justice system, this injury-time kick at its shins carries little moral weight.

But let me return to the things I admire about the novel, which outweigh my parochial reservations. Setting the book’s conclusion against the drama of Mrs Justice Maye’s concert performance is simply ludicrous when you think about it, having put the book down. Yet McEwan makes it seem natural, Fiona’s musical personality having been made essential from early on. Only a brilliant writer of fiction can get away so persuasively with such contrivance. His use of Newcastle and its memories to determine Fiona’s actions in a key passage is a similar device.

She felt unpleasantly light-headed, emptied out, all meaning gone. The blasphemous notion came to her that it didn’t much matter either way whether the boy lived or died. Everything would be much the same. Profound sorrow, bitter regret, perhaps, fond memories, then life would plunge on and all three would mean less and less as those who loved him aged and died, until they meant nothing at all. Religions, moral systems, her own included, were like peaks in a dense mountain range seen from a great distance, none obviously higher, more important, truer than another. What was to judge?

Saturday is the obvious comparator to this book, because its main character inhabits the same social world, because of the medical emergency both he and Fiona must deal with, and because a poem plays a key role in both stories. I don’t think the parallels are coincidental. While “secular law versus faith” is the obvious surface concern of this novel, I read The Children Act as in a sense a companion piece to Saturday. It seems a world away from the Iraq dilemma that forms the background to that book, but I think it’s in part a reflection on moral issues raised by that war, a decade on, and which arise again now in the Middle East. Is it right to “intervene” to save life? Would it make any difference? And how might it affect both the intervener and the intervened upon? The Children Act is a compressed study of the responsibility to protect, and the importance of detachment.

This is Ian McEwan’s most profound minor piece. It doesn’t rank with Atonement (the best I’ve read of his books) or rival his early novels, and it’s not as affecting as the best, early sections of the recent Sweet Tooth. But it’s much more satisfying in its ideas than Saturday or On Chesil Beach, more focused than the highly entertaining Solar, and more morally penetrating than Amsterdam. I recommend it.


In a word – no.

In a press conference this morning, Julian Assange told reporters a Wikleaks spokesman could confirm that

I am leaving the embassy soon

and the Ecuadorian Foreign Minister, according to the Guardian

referred to recent changes to the extradition laws in the UK which he believed would mean Mr Assange would not be facing extradition if the case started today.

Notice he did not claim these changes make any actual difference now; merely that they would have made a difference had the case started today. It started (and ended) some time ago, so they make no difference at all.

The changes he’s referring to are the new sections 12A and 21A of the Extradition Act 2003, inserted by the Anti-social Behaviour, Crime and Policing Act 2014, amendments which took effect a few weeks ago, on 21 July.

The new section 12A brings in a new bar to extradition under a European Arrest Warrant if the requesting country has not made a decision to charge, and the CPS (which in this case represents the “category 1 territory”, Sweden) cannot satisfy the extradition judge that

the person’s absence from the category 1 territory is the sole reason for that failure.

This might or might not help someone in Assange’s situation. Arguably his absence from Sweden is indeed the “sole reason” why he’s not been charged; it’s even more strongly arguable that his absence is the sole reason why no decision has been made whether to charge him or not. But there would certainly be room for Assange’s lawyers to argue, based on points his supporters have made in public about the possibility of interviewing him by video, that his absence from Sweden isn’t the “sole reason” he’s not been charged.

The case isn’t being argued today, though. Section 156(3) of the Anti-social Behaviour, Crime and Policing Act provides that

In a case where the Part 1 warrant (within the meaning of the Extradition Act 2003) has been issued before the time when the amendments made by this section come into force, those amendments apply to the extradition concerned only if, at that time, the judge has not yet decided all of the questions in section 11(1) of that Act.

The warrant was issued in 2010, of course; and the extradition judge decided all those questions in 2011. So the new provisions just don’t apply in Julian Assange’s case.

The new section 21A brings in another new bar to extradition where the judge thinks it would be disproportionate bearing in mind the seriousness of the alleged conduct, the likely penalty, and the possibility of “less coercive measures” by the requesting state. In a case of alleged rape (and the UK courts do see this as a case of alleged rape: see paragraphs 104–127 of the High Court’s 2011 judgment) it’s hard to argue that extradition would be disproportionate bearing in mind these considerations.

But in any event, section 157(5) makes exactly the same transitional provisions about the new “disproportionality” rule as apply to the new “no charge” rule. Where the arrest warrant was issued before the new rule came into force, it applies only if the case is still before the extradition judge.

Neither of the new rules applies, then. Julian Assange’s extradition case ended in 2012, with the Supreme Court’s ruling that he should be extradited to Sweden. The amendments don’t apply to his case retrospectively.

If this saga (or its extended UK sub-plot) is finally approaching its end, then it can only end with a flight to Sweden. In spite of what Assange seemed to say today, he may still see his departure as somehow conditional on a deal with the UK (which, as I’ve written before, seems to me hopeless). But assuming he does leave the embassy in the coming days or weeks, he’ll surely be arrested, then extradited in accordance with the courts’ rulings.

His surrender might conceivably be postponed briefly in accordance with article 23.4 of the European Arrest Warrant Framework Decision, if travelling would cause a serious risk to his health; and I dare say he’ll attempt some sort of last-ditch application for bail or an injunction in the short period before he’s extradited. But his position’s legally hopeless.

The only question is whether he really does leave the embassy soon, or not.


Dominic GrieveThe first time I came across Dominic Grieve, he made a fool of the Labour shadow justice minister, Paul Boateng. It was in the 1990s, at a Liberty conference on human rights. Paul Boateng opened by attacking Grieve and the Conservatives, for opposing the incorporation of European human rights into our domestic law (a Labour pledge). When Boateng sat down after ten angry minutes or more, Grieve deflated his rhetoric by pointing out that in fact he supported incorporation, and was there to make the Conservative case for it.

He wasn’t alone, in those days. Sir Ivan Lawrence was another Tory “incorporator” – and there were others. It wasn’t quite such a surprising position for a Conservative to take, back then (even during the tide of Tory Euroscepticism that followed the Maastricht “civil war”). But his stance at that time, before he entered Parliament, may partly explain his departure from office now that the Conservative party has gone decidedly off human rights. In his maiden speech in the Commons Grieve said

Perhaps I might give an example of where I suspect I might be at variance with some of the views of my colleagues on the Conservative Benches, but it is a variance that I have held for a long time. The incorporation of the European convention on human rights into our national law is something that, although challenging, is nevertheless desirable if it can be done without diminishing the sovereignty of Parliament. I believe that it can.

In government, he’ll be remembered for his moderate “constructive engagement” on human rights, against the background of mounting Conservative hostility to the idea. In 2011 he said there was

no question of the United Kingdom withdrawing from the Convention

(something the Lord Chancellor Chris Grayling is intending to float as a serious possibility). But in the same speech Grieve was also critical of the European Court of Human Rights, rightly taking it to task it over prisoners’ votes for effectively ignoring the democratic policy-making room it ought to allow to states:

Prisoner voting is a good example. On one hand the Court says there is a wide margin of appreciation afforded to Member States to decide on the enfranchisement of prisoners recognising that there are numerous ways to organise electoral systems reflecting the differing political traditions across Europe.

But on the other hand – as we can see in cases such as Frodl v Austria and Scoppola v Italy – the Court seeks to set down specific rules about the circumstances in which prisoners can be disenfranchised. It is no wonder – given these conflicting messages – that it is difficult to design a system in the UK which is compatible with the Convention rights.

He was right about that. The European court did indeed keep shifting the goalposts on prison votes. Grieve went to Strasbourg to argue personally for the UK on that issue, when that Scoppola case went to the Grand Chamber of the court, and although he failed to change the court’s mind – that would have been a remarkable victory – his intervention bought time for the UK, and halted the European Court’s slide towards ever more micromanagement on prison voting.

More than that: his strategy of pursuing dialogue with the European court, alongside the reforms the UK achieved at the Brighton conference in 2012, is now paying off for the UK. The prison votes issue is not solved. But the European court is now more mindful than it was of its subsidiary role and of the rights of states: its acceptance of the French ban on full-face veils is the best recent example. That is a result not only of brute political pressure from 10 Downing Street, but also, importantly, of the legal pressure exerted by Grieve’s legal argument that the court has gone astray.

His work on human rights has had an effect at home, too. Grieve appeared for the government before the Supreme Court last year, again on prison votes, and urged it to depart from the reasoning of the European Court of Human Rights, and in effect say that the European Court is wrong. That was a bold submission, I wrote at the time. It didn’t succeed: but since then, judicial figures like Sir John Laws and Lord Judge have been queueing up to assert our own courts’ independence from Strasbourg on human rights questions. Again, Grieve’s ability to make the government’s case in sensible legal terms has been persuasive, and helped make the weather. His role in shifting the terms of legal debate on human rights is I think underestimated; and the political importance of those shifts is unappreciated by most Conservatives. In contrast, the silly Bill of Rights Commission achieved nothing.

Too many Tories are fevered, extreme and impatient about human rights to pay much attention to any of this. But unless a Tory government withdraws from the European Convention on Human Rights some time after May 2015 (which I think unlikely for more than one reason), future Conservatives may one day thank Dominic Grieve for the fact that they don’t have to denounce it after all.

It’s worth noting that Grieve made a highly critical speech about the European Union last year, accusing EU institutions of failing to respect the rule of law:

It is unacceptable and very damaging to the legitimacy of the EU for legal bases to be aggressively exploited by the Commission in order to side-step the opt-outs which have been negotiated by sovereign member states.

You don’t have to be a Eurosceptic to feel that: I felt it too, after years of advising on, negotiating and implementing EU Directives and seeing just the sort of playing with legislative powers that obviously irritated Grieve. There is not just a democratic deficit in the EU but a rule of law deficit, and Grieve’s spot-on criticism of the Commission fits entirely with his support for the rule of human rights law in Europe.

Grieve will also be remembered for his firm line on contempt of court. In 2011 he gave a speech expressing concern about what he thought was increasing tendency for the press to test the boundaries of what’s acceptable in terms of reporting criminal investigations and prosecutions. He reminded the press that the Contempt of Court Act bites from the moment of arrest, not charge; and he asked for restraint in reporting. But he was prepared to take action too, for  instance when he took newspapers over their treatment of Christopher Jefferies. He also made clear he took seriously the threat of contempt in social media, and by jurors – not long before he had prosecuted the “Facebook juror”. Last year he prosecuted two more inappropriately Facebooking and Googling jurors.

He had recently to backtrack on the Law Commission’s proposal to enable him in effect to request the temporary “takedown” from the web of old stories that could prejudice a criminal trial. But he was trying to implement a Law Commission proposal, not just a mad scheme of his own; and the problem of injustice through trial by Google hasn’t vanished, just because that proposal was controversial.

Grieve was criticised by many non-lawyers over his handling of the Danny Nightingale case, but that criticism was misplaced. It’s not the job of the Attorney General to intervene in individual criminal cases or to direct prosecutions – it it were, Conservatives would be the first to accuse a Labour Attorney of Orwellian political interference. Not only was Grieve right to reject Philip Hammond’s crass, improper suggestion that he wade in: he was right to do so publicly, and quickly. If the Chancellor of the Exchequer were lobbied in public by a Cabinet colleague to intervene in a individual’s tax affairs, he would have to visibly and firmly slap down the suggestion. Grieve was put in much the same position by Hammond; and those who feel Hammond was harshly treated are, simply, wrong.

There was a view inside government that Grieve was “unpolitical”, perhaps naive – too easily outmanoeuvred by colleagues – and not carrying much weight in government (as, for example, Lord Goldsmith did). But I’m not sure the Attorney General should be a very political role. As with judges, some lack of political sophistication may be a good thing in an Attorney.

Of course David Cameron can, if he likes, have an Attorney who wants Britain out of the European Convention on Human Rights – or who’s at least untroubled by the prospect. But to the extent that Grieve advised (on prison votes, for example) that European court judgments had to be complied with, he was simply doing his job. The most pointless Attorney would be one who preferred to give the Prime Minister distorted legal comfort, in case the real law made him “physically sick”.

Grieve was a good Attorney General. Some might say it’s appropriate that he served in a Liberal-Conservative coalition government rather than a full-bloodedly Tory one. His party has certainly moved away from him and to the right during his time in Parliament. But actually his approach has been that of a very traditional Conservative, standing up for the rule of law at home and abroad.


In their recent ruling on assisted suicide, in R (Nicklinson) v Ministry of Justice and R (AM) v DPP, our highest judges have for the second time settled on a fudge. The first time they did so, in 2009, was bad enough – they got the DPP to sort-of tinker with the law by stealth. Worse, this time, they’ve blurred the legal boundary between the courts and Parliament under the Human Rights Act; and in trying desperately to defer to Parliament, they’ve ended up vaguely threatening it. How on earth can they have they got this so wrong?

Let me make it clear right from the beginning that I’m sympathetic to law reform in this area. If I were an MP, I’d support Lord Falconer’s attempt, in his Assisted Dying Bill, to legalise assisted suicide at least in some circumstances. What I’m concerned about is not the Justices’ views on assisted suicide itself, but the legally and constitutionally questionable way their judgment confronts Parliament.

The offence of assisting suicide

The recent judgment of the Supreme Court was all about section 2 of the Suicide Act 1961, which makes it an offence to help someone take their own life, complies with human rights law. Section 2 says

(1) A person (“D”) commits an offence if—

(a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and

(b) D’s act was intended to encourage or assist suicide or an attempt at suicide.

There can be no prosecution under section 2 unless the DPP gives her consent.


It’s important to understand what the Human Rights Act says Supreme Court judges have to do about an Act of Parliament, when someone argues that it breaches human rights. There are three options, in practice.

They can decide the legislation is obviously compatible with human rights, on its face. They can decide it is compatible, but only if they “read it down”, straining its meaning under section 3 of the Human Rights Act, to make it means something less, or different, from what Parliament originally intended.  This is in some ways the most controversial and difficult option; but it’s not seriously in play in this case. Finally, if the court is unable to read the legislation in a rights-compatible way, it must apply and enforce it regardless of human rights. It can, if it wants, make a declaration of incompatibility under section 4.

Crucially, that declaration would have no practical effect. It would mean the legislation stayed in force, with its full, rights-breaching effect, unless and until Parliament decided to change it.

An example of legislation that remains fully in force following a declaration of incompatibility is section 3 of the Representation of the People Act 1983, which denies prisoners the vote. To say it remains in force in spite of the declaration is slightly to misunderstand the Human Rights Act: it’s actually more accurate (if counter-intuitive) to say the ban on prison voting remains in full legal force in the UK because it’s been ruled incompatible with human rights. The apparently odd result flows from the way the Human Rights Act was designed to “protect Parliamentary sovereignty”, as Labour ministers put it back in 1998.

The is the key legal background. Since 2000, the legal issue about assisted suicide has been whether section 2 of the Suicide Act complies with human rights on its face; or whether it’s incompatible with rights. Either way, only Parliament can change it.

The Diane Pretty case

When assisted suicide first came to be considered by our highest court in R (Pretty) v DPP in 2001 – by the House of Lords, as it was then – their Lordships ruled the “ban” on assisted suicide didn’t even interfere with the right to respect for private life, assisting suicide simply not being part of the concept of private life. The Lords went on to decide that even if they were wrong about that, the ban on assisted suicide would still comply with the right to privacy under article 8 of the European Convention on Human Rights, because it is justified.

The senior Law Lord, Lord Bingham, said (at paragraphs 26 and 30)

I would for my part accept the Secretary of State’s submission that Mrs Pretty’s rights under article 8 are not engaged at all. If, however, that conclusion is wrong, and the prohibition of assisted suicide in section 2 of the 1961 Act infringes her convention right under article 8, it is necessary to consider whether the infringement is shown by the Secretary of State to be justifiable under the terms of article 8(2). …

If section 2(1) infringes any Convention right of Mrs Pretty, and recognising the heavy burden which lies on a member State seeking to justify such an infringement, I conclude that the Secretary of State has shown ample grounds to justify the existing law and the current application of it.

All the other Law Lords agreed. The Suicide Act was, then, compatible with human rights.

The Pretty case in Strasbourg

Although it’s not technically an appeal, Diane Pretty effectively tried to have that judgment reversed by the European Court of Human Rights. But she failed. In 2002 in Pretty v UK that court unanimously decided that, although personally autonomy in dying was part of the article 8 concept of a private life (the Lords had been wrong on that), section 2 was nonetheless compatible with human rights, as was the DPP’s refusal to make any advance statement about his intention to prosecute any individual (paras. 76-77):

The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. The Government have stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided, allowing lesser penalties to be imposed as appropriate. … It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence.

Nor in the circumstances is there anything disproportionate in the refusal of the DPP to give an advance undertaking that no prosecution would be brought against the applicant’s husband. Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law. In any event, the seriousness of the act for which immunity was claimed was such that the decision of the DPP to refuse the undertaking sought in the present case cannot be said to be arbitrary or unreasonable.

We were on firm ground, then. Both our own judges and those in Strasbourg agreed that Parliament was entitled, under human rights law, to criminalise assisted suicide. Section 2 of the Suicide Act 1961 remained compatible with the right to private life.

The Debbie Purdy case – and the guidance fudge

But everything changed when the issue was brought back to the Lords, in their last ever case, decided five years ago. In R (Purdy) v DPP, five Law Lords (including the current president and deputy president of the Supreme Court, Lord Neuberger and Lady Hale) considered an entirely new argument: that the ban on assisted suicide does not comply with the article 8 Convention right to respect for private life because it’s not clear enough to be “in accordance with law”.

That requirement – the “principle of legality” – is often overlooked because it’s usually easy to show that an interference with rights is lawful in this narrow sense: that it has a clear basis in legislation, for example. But Strasbourg has laid down that restrictions on rights must have sufficient legal precision to enable individuals to regulate their conduct and avoid criminality, and Debbie Purdy’s lawyers argued for the first time that uncertainty about who the DPP would prosecute and who he wouldn’t (it was Keir Starmer, then) meant the Suicide Act failed to “accord with law”.

The Law Lords bought that argument, apparently snatching gratefully at this principle as a way of resolving the emotive issue before them, and of giving some remedy to Ms Purdy and her husband. They unanimously decided that uncertainty about who the DPP would or would not prosecute meant our law was insufficiently precise, and so breached article 8. Lord Hope explained, saying the DPP had to publish a policy in relation to a narrow category of cases involving helping people travel abroad to die (§54-56):

The Code will normally provide sufficient guidance to Crown Prosecutors and to the public as to how decisions should or are likely to be taken whether or not, in a given case, it will be in the public interest to prosecute. … But that cannot be said of cases where the offence in contemplation is aiding or abetting the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences. …

… it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.

I would therefore allow the appeal and require the Director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy’s case exemplifies, whether or not to consent to a prosecution under section 2(1) of the 1961 Act.

In fact the guidance eventually published was not restricted only to those cases. Lady Hale agreed with Lord Hope, as did Lord Neuberger (§101-2):

I have reached the conclusion, in common with all your Lordships, that the Director ought to formulate (to the extent, if any, that he has not yet done so) and publish a policy, which sets out what he would generally regard as the aggravating factors and mitigating factors, when deciding whether to sanction a prosecution under section 2 of the 1961 Act. Inevitably, as a matter of common sense as well as a matter of law, each case will have to be decided by reference to its own particular facts, and the contents of such a policy could not conceivably be exhaustive. However, it cannot be doubted that a sensible and clear policy document would be of great legal and practical value, as well as being, I suspect, of some moral and emotional comfort, to Ms Purdy and others in a similar tragic situation.

I reach my conclusion on the ground that, in the absence of any such statement of policy, there is simply no sufficiently clear or relevant guidance available as to how the very widely expressed discretion accorded to the Director in section 2(4) of the 1961 Act will be exercised.

I was critical at the time, accusing the Law Lords of “taking the easy way out”. I concluded

The Purdy judgment worries me. In finding a way of seeming not to change the law, the Lords has indirectly wished such a change into being by handing inappropriate power to an official. It’s cleverly avoided apparent politicisation, and come up with a way forward that might suit if not everyone, then many people including Parliament and government. There’s a good case for judges being braver, more naively legalistic and less politically sensitive than this. I fear a bench with such political nous.

When it became clear that assisted suicide was being litigated again in the Tony Nicklinson case I hoped that, however else the Supreme Court approached the issue, it would not fiddle any further with the law under the guise of requiring more guidance.

The Nicklinson judgment

A bench of nine Justices considered the case of R (Nicklinson) v Ministry of Justice and R (AM) v DPP in the Supreme Court, and they gave their judgment on the 25th of June.

To my relief, they have basically given up trying to engineer a solution to assisted suicide by ordering guidance from the DPP. Lords Neuberger and Sumption do say the DPP’s policy doesn’t quite mean what she thinks, and they imply she needs to change it. But only Lady Hale (§323) shows any residual attraction to going any deeper than that; and Lord Hughes quietly criticises what was done in Purdy (at paragraph 280), a stance for which I commend him. That’s the good news.

But the bad news is that, while turning their backs on one constitutionally questionable fudge, they’ve ended up indulging in another one that’s actually more worrying. They’ve done it by getting confused about the relationship between the courts and Parliament implied by the Human Rights Act; and paradoxically, by trying to find a way out by deferring to Parliament, they’ve ended up sending it a vague threat.

The trouble’s caused by the way the court deals with a question that must I think have been raised by Lord Sumption in the court’s “first conference” discussing the case. Is Parliament best placed to decide this sort of issue, or the courts? If the answer is Parliament, then is it constitutional for the courts to arrogate to themselves power to decide it?

Lord Neuberger answers this question, remarkably in my view, by addressing it on no less than four levels. He considers whether courts are constitutionally competent to decide the rights-compatibility of assisted suicide; if they are, whether it is institutionally appropriate for them to do so; he goes on then to ask whether it’s appropriate to do so now; and finally, he considers whether the court ought to make a declaration of incompatibility.

I must admit that as I first read Lord Neubergers’ judgment my head began to spin because it seems to me the Human Rights Act is really much simpler than this. The only questions to be answered are closely linked to Lord Neuberger’s fourth one: does section 2 of the Suicide Act comply with the right to respect for private life, or not? If not, should the court declare it incompatible?

Three of the Justices answered my questions, in different ways. All of them were right to do so, whichever way they plumped. But let me first explain how I think the others erred by flunking them.

Lord Neuberger’s judgment

The first level on which Lord Neuberger answers Lord Sumption is, as I’ve said, by asking whether (§68)

it would be inappropriate for this Court even to consider whether it should determine whether or not section 2 is incompatible with article 8.

He concludes at §76 that the court is “constitutionally competent” to do so:

even under our constitutional settlement, which acknowledges parliamentary supremacy and has no written constitution, it is, in principle, open to a domestic court to consider whether section 2 infringes article 8.

Phew. It’s a good job he concludes that, I think, since Parliament has actually given the courts that role in the Human Rights Act.

He goes on then to ask (§77-8)

whether it is institutionally appropriate for a domestic court to consider whether section 2 infringes the article 8 rights of individuals such as Mr Nicklinson and Mr Lamb. …

In approaching this question, it is important to bear in mind that, as Lord Mance explained in Re G, what we have to consider is the breadth of the discretion which the courts should accord to Parliament, or, to put it another way, the limits of the courts’ deference to Parliament’s judgment, on the issue of the extent to which assisting suicide should be criminalised.

To be fair to him, this does seem to respond to an argument made in the case on behalf of the government. And again, this question seems to have been set running by Lords Sumption and Hughes.

Of course the courts should always consider Parliament’s breadth of discretion when ruling on the rights-compatibility of legislation. That’s an essential part of the task. But it’s hard to understand why respect for Parliament’s policy discretion means it’s not “institutionally appropriate” for courts even to consider compatibility. You don’t have to be a human rights extremist to be puzzled by this.

Lord Neuberger says that it is in principle “institutionally appropriate” to consider compatibility (§112):

Accordingly, while I respect and understand the contrary opinion, so well articulated by Lord Sumption and Lord Hughes, I am of the view that, provided that the evidence and the arguments justified such a conclusion, we could properly hold that that section 2 infringed article 8. A court would therefore have to consider an application to make a declaration of incompatibility on its merits, and it seems to me that it would be inappropriate for us to fetter the judiciary’s role in this connection in advance. More specifically, where the court has jurisdiction on an issue falling within the margin of appreciation, I think it would be wrong in principle to rule out exercising that jurisdiction if Parliament addresses the issue: it could be said with force that such an approach would be an abdication of judicial responsibility.

This has to be right. Ruling out a decision on compatibility as “inappropriate” would indeed be to chuck in the judicial gown. Up to this point, although I’m puzzled by the questions Lord Neuberger has asked, his answers are surely correct.

Yet at §113 he thinks (this is the third level of his answer to Lord Sumption) it would not be appropriate to make declaration of incompatibility at this time. He says Parliament should first be given the chance to amend the law (or not) in the light of the Supreme Court’s provisional views.

However, I consider that, even if it would otherwise be right to do so on the evidence and arguments which have been raised on the first appeal, it would not be appropriate to grant a declaration of incompatibility at this time. In my opinion, before making such a declaration, we should accord Parliament the opportunity of considering whether to amend section 2 so as to enable Applicants, and, quite possibly others, to be assisted in ending their lives, subject of course to such regulations and other protective features as Parliament thinks appropriate, in the light of what may be said to be the provisional views of this Court, as set out in our judgments in these appeals.

This, fundamentally, is the point at which the Supreme Court judgment goes astray. What Lord Neuberger unwittingly does here, I think, is conflate the question whether to grant a declaration of incompatibility with the different question whether to decide if the legislation is compatible or not. He appears in paragraph 113 to be avoiding the first, and indeed is avoiding it; but as a result he also avoids the second. Along with the bathwater, an important baby has been lost.

Lord Neuberger actually tells us at §119 that he would have ruled section 2 rights-compatible had he felt it “institutionally appropriate” to do so. Nonetheless, he’s made no such ruling. He has successfully avoided saying the legislation is incompatible with human rights without making the logically corollary ruling: that it does comply with them.

This leads to the idea that Parliament should now consider the matter without knowing what the human rights law position is, and the extraordinary paragraph 118:

Parliament now has the opportunity to address the issue of whether section 2 should be relaxed or modified, and if so how, in the knowledge that, if it is not satisfactorily addressed, there is a real prospect that a further, and successful, application for a declaration of incompatibility may be made. It would not be appropriate or even possible to identify in advance what amounts to a reasonable time in this context. However, bearing in mind the predicament of the Applicants, and the attention the matter has been given inside and outside Parliament over the past twelve years, one would expect to see the issue whether there should be any and if so what legislation covering those in the situation of Applicants explicitly debated in the near future, either along with, or in addition to, the question whether there should be legislation along the lines of Lord Falconer’s proposals. Nor would it be possible or appropriate to identify in advance what would constitute satisfactory addressing of the issue, or what would follow once Parliament had debated the issue: that is something which would have to be judged if and when a further application is made, as indicated in para 112 above. So that there is no misunderstanding, I should add that it may transpire that, even if Parliament did not amend section 2, there should still be no declaration of incompatibility: that is a matter which can only be decided if and when another application is brought for such a declaration.

Obviously Lord Neuberger doesn’t mean it this way – but isn’t that a vague sort of threat? He raises the ominous prospect that he might go on to rule the legislation incompatible with the right to respect for private life if Parliament doesn’t “explicitly” and “satisfactorily” address this issue within an unspecified “near future”. And whatever Parliament does, he might decide it’s compatible with human rights; or he might not. What on earth are MPs supposed to make of this?

If I were Speaker of the House of Commons, frankly I’d be concerned. Lord Neuberger’s intention was clearly to defer to Parliament rather than threaten it. Nonetheless, by offering it this “opportunity to address the issue” of assisted suicide he does seem to have given it a sort of ultimatum.

The Human Rights Act was not, I think, meant to work like this. Parliament clearly gave judges two ways of “putting the ball into Parliament’s court”: either by reinterpreting legislation to be rights-compatible using section 3 of the Act (prompting Parliament to amend it if it disagreed); or else by making a declaration of incompatibility (which Parliament could do something about, or not). There is no third way of putting pressure on Parliament without daring to do either of those things.

I’ve been critical of Lord Neuberger here. But since his judgment seems to be a response to issues raised by Lord Sumption, Lord Sumption must share in responsibility for this even though, strangely, the same legal issues seem not to appear in his judgment, or at least not clearly. But I’ll come to that later.

Finally, Lord Neuberger asked whether the court should actually make a declaration of incompatibility in this case. He says would not have done so on basis of evidence and argument he heard (§119):

even if I had concluded that it would in principle have been institutionally appropriate to make a declaration of incompatibility in these proceedings, I would not have done so on the basis of the evidence and arguments laid before the courts.

To be fair to him again, his hesitancy here is based on the possible significance of “eyeblink computer” technology, which seems to have been raised for the first time in the Supreme Court. But he does not make clear that the legislation is rights-compatible subject to that new technology. He actually says (§125)

I consider that it is certainly conceivable that a court could conclude that section 2 infringes article 8 in so far as it precludes an Applicant from receiving assistance in committing suicide, provided that a High Court Judge has formally determined that he has a voluntary, clear, settled and informed wish to do so.

The suggestion that a High Court judge should be involved comes from Lady Hale, and it’s one heavily criticised by Jon Holbrook at Spiked. I’m less concerned than he is about that – but it is a typically judicial piece of policy-making. Judges sometimes tend to approach policy issues by seeing judge-shaped holes to plug (another example of this was the European Court of Human Rights’s suggestion that the answer to the prison votes question was to let a judge decide each case individually). I hope the idea doesn’t steep and stew into the Supreme Court’s acid test of the right-compatibility of anything Parliament does here.

Lord Mance

Lord Mance basically agrees with Lord Neuberger (§166):

It is in my view a mistake to approach proportionality as a test under the Human Rights Act which is insensitive to considerations of institutional competence and legitimacy.

Lord Wilson

So does Lord Wilson; at §202 he sets out in his own language the same sort of ultimatum to Parliament:

Were Parliament for whatever reason, to fail satisfactorily to address the issue whether to amend the subsection to permit assistance to be given to persons in the situation of Mr Nicklinson and Mr Lamb, the issue of a fresh claim for a declaration is to be anticipated. It would no doubt be issued, as was that of Mr Nicklinson, in the Family Division of the High Court. The Crown would be entitled pursuant to section 5(1) of the 1998 Act to notice of the claim and I expect that the Attorney General would thereupon see fit to intervene pursuant to section 5(2). In that way the court would, I hope, receive the focussed evidence and submissions which this court has lacked. While the conclusion of the proceedings can in no way be prejudged, there is a real prospect of their success.

Dr Mark Elliot is surely right to have written, the day after the judgment, that

The position occupied by Lords Neuberger, Mance and Wilson is an uncomfortable one.

Lord Sumption

Lord Sumption surprisingly seems not to consider the constitutional issues in as much depth as Lord Neuberger. But he does unhelpfully (I think) look at them in terms of whether Parliament or the court is better placed to make decisions about assisted dying. At §230 he says

Doubtless, where there is only one rational choice the Courts must make it, but the converse is not true. Where there is more than one rational choice the question may or may not be for Parliament, depending on the nature of the issue. Is it essentially legislative in nature? Does it by its nature require a democratic mandate? The question whether relaxing or qualifying the current absolute prohibition on assisted suicide would involve unacceptable risks to vulnerable people is in my view a classic example of the kind of issue which should be decided by Parliament.

But his approach makes his conclusion (at §233) confused:

In my opinion, the legislature could rationally conclude that a blanket ban on assisted suicide was “necessary” in Convention terms, i.e. that it responded to a pressing social need. I express no final view of my own. I merely say that the social and moral dimensions of the issue, its inherent difficulty, and the fact that there is much to be said on both sides make Parliament the proper organ for deciding it. If it were possible to say that Parliament had abdicated the task of addressing the question at all, so that none of the constitutional organs of the state had determined where the United Kingdom stood on the question, other considerations might at least arguably arise.

Saying Parliament could rationally ban assisted suicide is to say doing so is rights-compatible. Only the courts can give a “final view of their own” on that question – and Lord Sumption should have done so.

Lord Hughes

In the same way, Lord Hughes concludes (at §267), agreeing with Lord Sumption, that

in this country, with our constitutional division of responsibility between Parliament and the courts, this is very clearly a decision which falls to be made by Parliament. For the moment, the balance between the public interest in the protection of the vulnerable and the preservation of life on the one hand and the private interests of those minded to commit suicide on the other has been struck by the 1961 Act, re-enacted in 2009. A change, whether desirable or not, must be for Parliament to make.

This is surely, in reality, a decision that the Suicide Act is compatible with article 8. Why not say so?

Lord Clarke

Lord Clarke also agrees Parliament should now debate assisted suicide. He says at §293

If Parliament chooses not to debate these issues, I would expect the court to intervene. If, on the other hand, it does debate them and, after mature consideration, concludes that there should be no change in the law as it stands, as at present advised and save perhaps in exceptional circumstances, I would hold that no declaration of incompatibility should be made.

Again, this is the sort of slightly ominous language used by Lords Neuberger and Wilson. But why should Parliament’s order of business be dictated by judges, like this?

Now, finally, to the three judges who (while they disagreed on whether the ban on assisted suicide complies with human rights) got the big legal picture right – on the constitutional relationship between the courts and Parliament over human rights.

Lord Reed

Lord Reed’s judgment, in contrast to the ones before, is a model of succinct orthodoxy on the application of the Human Rights Act. At §295-298 he rejects a declaration of incompatibly because the Act is compatible with human rights:

it is within the jurisdiction accorded to this court under the Human Rights Act 1998 to decide whether the law is or is not compatible with the Convention rights recognised by UK law. If the question whether a provision of primary legislation is compatible with a Convention right arises before one of the courts listed in section 4(5) of the Human Rights Act 1998, the court evidently has jurisdiction to determine it.

[The HRA] … does not alter the fact that certain issues are by their nature more suitable for determination by Government or Parliament than by the courts. In so far as issues of that character are relevant to an assessment of the compatibility of executive action or legislation with Convention rights, that is something which the courts can and do properly take into account. They do so by giving weight to the determination of those issues by the primary decision-maker. There is nothing new about this point. It has often been articulated in the past by referring to a discretionary area of judgment.

[The right to die issue] raises highly controversial questions of social policy and, in the view of many, moral and religious questions on which there is no consensus. The nature of the issue therefore requires Parliament to be allowed a wide margin of judgment: the considered assessment of an issue of that nature, by an institution which is representative of the citizens of this country and democratically accountable to them, should normally be respected. That is not to say that the courts lack jurisdiction to determine the question: on the contrary, as I have explained. But it means that the courts should attach very considerable weight to Parliament’s assessment.

In the present case, I am far from persuaded that that assessment is unjustifiable under the Convention. That is not to say that it is inconceivable that the position could alter in the future: changes in social attitudes, or the evolution of the Convention jurisprudence, could bear on the application of the Convention in this context, as they have done in other contexts in the past. But that is not the position at present.

He has I think seen the law here more clearly than many of his colleagues on the court. It’s not that there’s some principle of “constitutional competence” or “institutional appropriateness” which must be asked before the court can even consider compatibility. Rather, the court’s duty is to determine compatibility having given due weight to Parliament’s views and (in a case like this) a wide margin of judgment. He’s absolutely right that this is nothing new.

Notice how much simpler his approach is; and that it does not involve giving marching orders to Parliament.

Lady Hale

I don’t agree with Lady Hale that section 2 of the Suicide Act is incompatible with the right to privacy; but that’s not the important point, of course. She’s right (§300) that there’s no reason the Supreme Court should not rule on compatibility now.

Lord Kerr

Lord Kerr puts my argument admirably at §343-4:

An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with ECHR. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act it is open to Parliament to decide to do nothing.

What the courts do in making a declaration of incompatibility is to remit the issue to Parliament for a political decision, informed by the court’s view of the law. The remission of the issue to Parliament does not involve the court’s making a moral choice which is properly within the province of the democratically elected legislature.

He’s right. A declaration of incompatibility is not the usurpation some of his colleagues think it is. On the contrary, the court fulfils Parliament’s intention (in the Human Rights Act) if it makes one. The result is to let Parliament remove the incompatibility if it chooses to – or not. I think he’s wrong to see the ban on assisted suicide as incompatible. But like Lord Reed and Lady Hale, he’s right on the fundamental constitutional law point.

What’s most impressive about Lord Kerr’s judgment is his insistence that whether courts should decide about human rights compatibility does not depend on whether Parliament is “better placed” to decide policy. At §347 he says, in response to Lord Mance’s approach,

it appears to suggest that the court’s assessment of whether a particular statutory provision is incompatible should be adjusted or, indeed, disavowed, according to the court’s perception of whether it or the legislature can lay claim to ‘greater expertise’. It appears to me that this is fundamentally at odds with the court’s duty under section 4 of the Human Rights Act. … The view that Parliament might have the means to consider the issue more fully or on a broader canvas does not impel the conclusion that the courts should shy away from addressing the question whether the provision is incompatible with a Convention right, judged on the material that has been presented. On the contrary, such is the court’s duty when presented with that claim.

At this point, I was tempted to cheer. The Supreme Court was indeed duty bound to decide whether or not the Suicide Act was compatible with Convention rights. What’s wrong with its Nicklinson judgment is the excessively sophisticated way some of the Justices talked themselves out of doing so.

another wrong turning

What’s happened in this case reminds me of the error the House of Lords fell into on a related issue issue – also involving the compatibility of legislation under the Human Rights Act – in a series of cases in the early 2000s, such as R v A (at least in Lord Hope’s speech) and Bellinger v Bellinger. For a time, an excessively cautious approach took hold, in which our highest judges were so reluctant to use their interpretation powers under section 3 of the Act (out of a misguided, in my view, concern for Parliament) that they were readier than they should have been to issue declarations of incompatibility. That was an unbalanced approach to the Human Rights Act, and one not in accord with Parliament’s original intention. Lord Steyn rightly exorcised it – calling it “a wrong turning” – in the leading 2004 case of Ghaidan v Godin-Mendoza. That involved a slightly different issue; but it’s an earlier example of how judges’ excessive concern for Parliament’s rights isn’t, always, the best way to respect Parliament. Something similar has happened here.

It’s no good telling Parliament it must debate assisted suicide again. The law can never be settled until the courts give a clear view about whether Parliament’s policy (whatever that is) complies with human rights or not. The next time the Supreme court is called on to make such a ruling, it should simply do so.


The French niqab ban: BBC Radio Wales discussion with Faeeza Vaid and Bénédicte Paviot

July 3, 2014

I took part in a BBC Radio Wales discussion yesterday following the European Court of Human Rights’s ruling upholding the French “blanket ban” on wearing full-face veils, including the niqab and burka. Steffan Garrero was presenting the Jason Mohammad show, and the other participants were Faeeza Vaid of the Muslim Women’s Network UK, and the […]

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The state of freedom in Britain, at LSE

June 11, 2014

Last week at LSE, Professor Conor Gearty chaired an event on “the state of freedom in Britain” at which Professor Nicola Lacey and Liberty’s director Shami Chakrabarti (who’s a bit of a guest star on this blog at the moment) each looked at liberty in the UK from their own angle. You can watch the […]

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Gordon Brown: strange, vague and wrong on the constitution

June 10, 2014

In an article in today’s Guardian, Gordon Brown argues that Scotland should stay in the UK because of its “social union” with England, and our shared welfare state. Fair enough. That’s essentially the Labour case for the Union. But what really interests me in his piece is the thread of hostility to the British constitution that runs […]

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Shami Chakrabarti: I haven’t heard a single promise from Mr Khan

June 8, 2014

Speaking to the Tory Reform Group yesterday, Liberty’s director Shami Chakrabarti attacked not just the coalition government for its legal aid cuts, but Labour and the political class as a whole – which she said doesn’t really believe in the rule of law. Showing frustration with Labour’s front bench, she said she’d not heard any positive promise on legal aid […]

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Sir Ivan Lawrence QC: The government’s legal aid cuts are “total madness”, “weakening” and “betraying” the rule of law

June 7, 2014

Speaking to members of the Tory Reform Group today, the former Conservative MP Sir Ivan Lawrence QC attacked what he called the “total madness” of the government’s legal aid policy, saying it was “fatuous”, will make at best “pitiful” savings, and is “against all we stand for”. Sir Ivan tried to speak for five to […]

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The SARAH Bill: a victory for common sense!

June 5, 2014

This is the Justice Secretary, Chris Grayling, explaining what he calls his “Social Action, Responsibility and Heroism Bill”, trailed in the Queen’s Speech this week. It is, he says, all about tackling the elf ‘n’ safety jobsworth culture in our society that leaves all too many people who want to do the right thing, who […]

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