The Round Up: The right to die battle – last rites, or the long game?

24 July 2015 by Laura Profumo

Laura Profumo delivers the latest human rights happenings.

In the News:

Right to die campaigners have sustained yet another setback, following the judgment of R (AM) v General Medical Council last week.

‘Martin’, a sufferer of ‘locked in’ syndrome, submitted that the GMC’s guidance on assisted suicide violated ECHR Articles 8 and 10, interfering with his right to choose the time and manner of his death. The guidance states that any doctor advising a patient under section 2 of the Suicide Act 1961 will likely face disciplinary procedures, or be struck off the register altogether. Whilst the High Court accepted that Article 8 was engaged, the Council’s failure to align with the DPP’s revised policy was deemed irrelevant – any interference remained justified under 8(2). A second Wednesbury challenge was given similarly short thrift. UKHRB’s own Isabel McArdle offers a clear exposition of the case here. The judgment follows in the wake of Strasbourg’s rejection of the right to die challenge of Nicklinson and Lamb v UK – the disappointing culmination of a protracted legal battle for Paul Lamb and Jane Nicklinson, the widow of Tony who died during the proceedings. It also follows the news that two daughters were forced to cancel a fundraising event to send their terminally ill mother to Switzerland, after police warned them of possible prosecution. Despite the landmark victory of Debbie Purdy, it seems prosecutorial discretion remains a disquieting force for relatives and loved ones left behind.

Yet there’s hope for the campaign yet. A new Assisted Dying Bill, founded on Lord Falconer’s proposals, is set to be debated in the Commons in September. Furthermore, maverick voluntary euthanasia advocate, Philip Nitschke, remains characteristically strident, accusing the NT branch of the Australian Medical Association of “insufferable arrogance and paternalism”, following their refusal to reinstate his membership. The decision was made despite Nitschke’s successful Supreme Court appeal against the suspension of his medical licence. The national medical board suspended his licence last year, amongst allegations that the doctor had counseled a patient to take their own life. Nitschke, grimly dubbed “Dr Death”, is due to satirise the right to die debate in his upcoming Edinburgh Fringe Show, where he will invite audience members to be “gassed” by his new “Destiny” euthanasia machine. The machine provides users with “a peaceful and reliable means of death”, which even those who are severely disabled may use lawfully. It was commissioned following Tony Nicklinson’s legal plight, who, as a sufferer of locked-in syndrome, required a device of “minimal assistance” to use unaided. The machine asks three threshold questions to the user, before issuing the lethal gas. Whilst the show may well be a gas, whether there is a legal right to such gas, vaulting the barriers of section 2 of the Suicide Act 1961, remains to be seen.

 In Other News…

•  The Court of Appeal has overturned a High Court ruling that it was unlawful for the government to ban inmates with a history of absconding from being transferred to open prisons. The policy was implemented after several cases of violent prisoners absconding, though it was held inconsistent with the justice secretary’s parole directions.

• The High Court has ruled that the Charity Commission will face a judicial review of its decision to pressure charities not to fund ISIS-linked advocacy group Cage. The Commission allegedly exceeded its powers in asking two charities to cease funding the group, after it announced that the Islamic State executioner, “Jihadi John”, was radicalized by Britain. Cage also announced that it was considering defamation proceedings against David Cameron, following his labeling of the group as “extremist” in his landmark counter-terrorism speech earlier this week.

• In coincidence with Mandela Day, South Africa’s key figures have called on Cameron not to repeal the Human Rights Act. In an open letter to the Observer, 25 of the country’s most influential intellectuals and activists warn that Britain is in danger of betraying its own noble role in the anti-apartheid movement, in abolishing the 1998 act. The signatories describe their “horror” at Cameron’s plans to replace the act with a British Bill of Rights: “Dividing people, setting their rights and freedoms apart…stripping them of their human rights….led to apartheid. And it can only lead to further injustice and dispossession in the future”.

• The right to be forgotten does not, it seems, always confer amnesia. R(Khashaba) v Information Commissioner concerned a judicial review challenge against the Commissioner, arguing that he had erred in approving Google’s refusal to de-index articles on the applicant, and duly failing to take enforcement action against the company. Mr Khashaba’s application was refused on the grounds that he could have sought direct proceedings against Google, and that the Commissioner exercised his discretionary powers reasonably and proportionately.

• The UKCLA HLA Watch offers another, considered commentary on the embattled Human Rights Act. Elizabeth Stokes discusses, in the post-Hirst climate, the effect of HRA repeal on prisoners’ domestic rights. Whether a Bill of Rights would continue to recognise prisoners as right-holders, not social penumbra, remains to be seen. Yet Dominic Raab’s admonishing of our current “rights contagion” suggests “there may be little room for the detained, and non-citizen’s rights”. Whatever the outcome, Stokes predicts that the position of prisoners in the debate will remain “rhetorical rather than real”, evading the questions brought to light in Nick Hardwick’s final prison report.

• Democrats are preparing to unveil their expansive anti-discrimination bill, which aims to extend Civil Rights Act protections to LGBT people, such as housing and employment. Yet with the Republicans’ control of both chambers, the bill’s passage will prove steep.

• The home secretary, Theresa May, failed to protect three potential victims of trafficking held in an immigration detention centre, the High Court has ruled. May admitted she had failed to correctly identify trafficking victims, failed to make the appropriate referrals to police and trafficking authorities, and allowed the detained fast-track system to operate in a discriminatory way. Garden Court QC, Stephanie Harrison, called on the Home Office to “urgently review the asylum system so victims of trafficking are no longer detained and denied vital protections”.

• And finally, for a bit of light relief this silly season, Charon QC pens a brilliantly Rabelaisian letter to the Lord Chancellor here.

 In the Courts: 

 Satakunnan Markkinaporssi Oy and Satamedia Oy v Finland

ECtHR weighed in on the data protection debate last week. The Finnish Supreme Court had ruled that a magazine publishing publicly accessible tax data could lawfully be prevented from publishing, in order to protect the data privacy rights of the individuals concerned. Dismissing the magazine owner’s appeal, ECtHR held the national court had correctly calibrated the balancing of Article 8 and 10 rights, closely considering the public interest value of potential publication. The judgment clarified that the lower such public interest value, the more likely the rights of the data subject will prevail.

Coventry v Lawrence

The pre-April 2013 Conditional Fee Agreement System, under which claimants could recoup legal costs and expenses from the losing party, has narrowly survived an Article 6 challenge. By a majority of 5-2 the Supreme Court held that the scheme was compatible with the Convention, as it was justified by the need to enhance access to justice following the legal aid withdrawal for civil cases, and it fell within the wide discretionary ambit of the legislature. The judgment held that the scheme was, as a whole, rational and coherent, and not incompatible with Article 6, though not before two concurring justices describing the case as an “awkward” one. For a close analysis of the ratio, read David Hart QC’s commentary here.

UKHRB posts in the last week

• “Limbs in the loch” killer wins Article 8 claim
• More bad news in the fight for the right to die
• Strasbourg rejects right to die cases
• Supreme Court no-win-no-fee regime compatible with Article 6
• Scheme for Exceptional Case Funding not providing the required safety net
• Copying for private use: to be quashed with prospective or retrospective effect?

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