Strasbourg rejects right to die cases
20 July 2015
This is the latest development in a long running series of decisions concerning various challenges to the UK’s law and prosecutorial guidelines on assisted suicide and voluntary euthanasia. You can read the press release here and the full decision here. Last year, the Supreme Court considered the issues in several joined appeals, with the Court unanimously finding that the question of whether to impose a general ban on assisted dying lay within the UK Parliament’s margin of appreciation, and a minority going on to conclude that Article 8 ECHR, the right to respect for private and family life, was infringed by the UK’s bar on assisted dying. You can read Rosalind English’s summary here.
The application to the ECtHR was brought by Mrs Nicklinson, widow of Mr Nicklinson who suffered locked-in syndrome, and Mr Lamb, a man left profoundly disabled by a car accident. Mr Lamb and Mr Nicklinson had both wished to end their own lives, but were unable to do so without assistance.
Mrs Nicklinson argued that UK Courts had failed to determine the compatibility of the law in the UK on assisted suicide with her and her husband’s right to respect for private and family life, pursuant to Article 8. Mr Lamb argued that his rights under Articles 6 (right to a fair hearing /access to court), 8, 13 (right to an effective remedy) and 14 (prohibition of discrimination) had been infringed by the failure to provide him with the opportunity to obtain the permission of the Court to allow a volunteer to administer lethal drugs to him with his consent.
The ECtHR, in Mrs Nicklinson’s case, found that the matter was inadmissible, because Article 8 does not impose procedural obligations on domestic courts to examine the merits of a challenge in relation to primary legislation. The UK state has designated to Parliament the role of assessing the merits of the law on assisted dying, and the law has been considered by Parliament several times in recent years. Further, the majority of the Supreme Court had dealt with the merits of Mrs Nicklinson’s claim, and had weighed Parliament’s views heavily in the balance, as they were entitled to do. The ECtHR found:
“The Contracting States are generally free to determine which of the three branches of government should be responsible for taking policy and legislative decisions which fall within their margin of appreciation and it is not for this Court to involve itself in their internal constitutional arrangements. However, when this Court concludes in any given case that an impugned legislative provision falls within the margin of appreciation, it will often be the case that the Court is, essentially, referring to Parliament’s discretion to legislate as it sees fit in that particular area. Thus, in Pretty this Court held that it was for States to assess the risk and likely incidence of abuse if the general prohibition on assisted suicide were to be relaxed or exceptions created (at § 74 of its judgment). In the context of the United Kingdom, that assessment had been made by Parliament in enacting section 2(1) of the 1961 Act, a provision that has been reconsidered several times by Parliament in recent years, having been re-enacted in 2009, with slightly different language, in the Coroners and Justice Act … If the domestic courts were to be required to give a judgment on the merits of such a complaint this could have the effect of forcing upon them an institutional role not envisaged by the domestic constitutional order. Further, it would be odd to deny domestic courts charged with examining the compatibility of primary legislation with the Convention the possibility of concluding, like this Court, that Parliament is best placed to take a decision on the issue in question in light of the sensitive issues, notably ethical, philosophical and social, which arise.” 
Mr Lamb’s complaint was ruled inadmissible because he had not exhausted all domestic remedies, as required before applying to the ECtHR. He had not pursued before the Supreme Court his argument (pursued earlier in the litigation) that there should be a judicial procedure to authorise voluntary euthanasia in certain circumstances.
Assisted dying is not likely to leave the legal news any time soon. Lord Falconer’s Assisted Dying Bill ran out of time before the General Election, but MP Rob Marris is proposing a Bill thought to be very similar in substance. The first debate is expected in September 2015.
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- Withdrawal of nutrition and hydration would not offend right to life – Strasbourg Court
- Supreme Court rejects right to die appeals
- British Columbia Supreme Court grasps the nettle in right to die case
- Locked-in sufferer’s challenge to ban on voluntary euthanasia fails in the High Court
- ‘No precedent’? Then set one! The Nicklinson right to die case
- Toppled, choked and locked in: where are human rights when you need them?
- Are lawyers in right to die cases breaking the law?
- What is a life worth living? Further analysis of “M”
- States Not Obliged to Assist Persons Wishing to Commit Suicide – Antoine Buyse
- GMC to announce policy of striking off doctors who prolong the lives of terminally ill patients against their wishes [updated]
- Previous posts on the Pretty and Purdy cases