Assisted suicide, human rights and Parliament: a wrong turning by the Supreme Court

by Carl Gardner on July 8, 2014

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.

THE HUMAN RIGHTS ACT

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.

{ 5 comments… read them below or add one }

1 David Radlett July 8, 2014 at 14:33

Thank you for this fascinating analysis of the Nicklinson case in the Supreme Court. Such a rich analysis requires further reflection (on the nature of the wrong turning, for example: some of us think it was taken in Ghaiden – right result, wrong reasoning).
But pending the fruits of such reflection, surely Lord Kerr is simply wrong when he asserts that “What the courts do in making a declaration of incompatibility is to remit the issue to Parliament for a political decision.” Declarations of incompatibility empower the relevant minster to bring forward proposals to rectify an incompatibility, but s/he may decide not to do so. If s/he does make a remedial order, Parliament’s role is restricted to a “yes”/”no” vote. So the making of a declaration of incompatibility may pave the way for Parliament to rubber-stamp a political decision, but the issue is remitted by the court to the minister.
Under the current constitutional settlement (which I believe to be under threat, but still in place) Parliament is free to change the law on such matters as it likes at any time, and it needs neither a statutory mechanism nor the permission of the court to do so.

2 Adam Wagner July 9, 2014 at 12:28

Carl – thank you for this fascinating discussion of the case, which has certainly increased my understanding alongside Mark Elliott’s excellent post.

Isn’t there an elephant in the room here which pierces through the neat constitutional arrangement envisaged by the HRA: that a declaration of incompatibility met by the Parliamentary long grass treatment (a potential outcome in this case, given how controversial the issue is) would potentially lead to Strasbourg taking up the reins and reversing its decision in Pretty? In which case, Parliament “must” obey, at least according to its international legal responsibilities. I think that this pressure is behind Lord Neuberger’s contortions.

I am not for a moment jumping on the anti-Strasbourg bandwagon, but I do think the Supreme Court justices are currently caught up in the political pressure surrounding the relationship with Europe and the future of human rights, and are finding it difficult to separate the constitutional wood from the trees. Every other judgment at the moment seems to be attempting to rewrite the constitutional playbook in the name of deference to Parliament (Nicklinson), deference to Strasbourg (Chester), deference to the common law (Osborn)… it really is quite exhausting, and that is before we get into the extra-judicial speechifying.

I think Lord Sumption is playing an important role in this; as you (and Lord Neuberger) imply, Lord Sumption’s pre-HRA view of the proper role of judges in the constitutional system is a constant looming presence in the UKSC’s recent judgments, either explicitly or implicitly.

I find myself wishing (as you and Dr Elliott clearly do to) that the Justices would leave the political issues to Parliament and get on with judging. Because at the moment, although these treatises on the constitution are put in the language of deference to Parliament, they in fact demonstrate an over-inflated view of the Supreme Court’s role, which is surely limited to human rights judging rather than human rights policy making.

Argh!

3 Carl Gardner July 9, 2014 at 16:33

David,

I suppose a court making a declaration doesn’t “remit” the issue to Parliament in the sense of sending it a message which Parliament must act on on any way. But it is like raising a red flag which it knows Parliament will see. And whether to do anything is a political decision. So I think Lord Kerr is right.

You mention remedial orders, but they’re only available if the minister reasonably thinks there are “compelling reasons” to go down the remedial order route (see section 10(2) of the HRA). So the default is for any changes to be made by primary legislation. Parliament is in charge: it can reject any remedial order, and pass a bill of its own.

I’m pleased you agree with me that our constitutional settlement is under threat: I think the threat is a slow-motion one from written-constitution advocates, republicans, and some politicians whose constitutional thinking is shallow and who are tempted to indulge in large-scale tinkering (I’d put the last two Prime Ministers in this category).

I agree of course that Parliament doesn’t need permission. But if you’re going to have a domestic human rights scheme at all (and I think that’s a good idea) then this sort of red flag signal is useful, I think.

4 Carl Gardner July 9, 2014 at 17:00

Adam,

Thanks for pointing out the piercing elephant! I agree with you about the pressures on the court. I think the Justices are trying to be cautious and to negotiate it all carefully.

I reckon there’s another element in all this too, though. I don’t think the judges are only nervous of upsetting Parliament and starting off a round of human rights madness again. I suspect they must also be finding it hard to say No to campaigners and to applicants like these. I know judges are used to making unpopular decisions, but the evasions in Purdy and this case leave no other conclusion possible. So the judges are caught between two concerns.

I do think the answer is to forget all that stuff, though, and to get on “naively” doing the legal analysis, even if the heavens fall.

Strange that the Supreme Court actually seems to think, more or less 7-2, that the Suicide Act is compatible with human rights. Yet Parliament’s being told it must look at it again. A very odd situation.

5 PJ July 20, 2014 at 04:56

No has the right to die, because we cannot control every matter in our lives as a human right, most human rights are the right to life.

I refer to assisted suicide bill that should have being voted out at first reading.

The judgement by the supreme court of Nickerson case would not have came under this bill, he was not dying and it does not have nothing to do with this assisted suicide bill in House of Lords.
It is incompatible bill to his case and therefore is unconstitutional.
What the bill has raised is fear among vulnerable people and distrust of Doctors between patients and doctors it is no one right to take another person’s life and there is no love or compassion in it.

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