In the almost three years since the Supreme Court delivered its reasons in Nicklinson (in which a majority refused to issue a declaration that the blanket ban on assisted suicide in s 2(1) of the Suicide Act 1961 was incompatible with Article 8 of the European Convention on Human Rights (‘ECHR’)), similar questions of compatibility concerning analogous bans have been considered by courts in Canada, South Africa and New Zealand. Additionally, California and Colorado have introduced legislation permitting physician-assisted suicide (taking the total to six States in the US which permit physician-assisted suicide), France has introduced legislation enabling patients to request terminal sedation, and Germany’s Federal Administrative Court this month handed down judgment confirming that the right to self-determination encompasses a right of the ‘seriously and incurably ill’ to, in ‘exceptional circumstances’, access narcotics so as to suicide.
Given news of a new challenge by Noel Conway to the compatibility of s 2(1) of the Suicide Act with Article 8 (the application for permission to review was heard by the Divisional Court yesterday with judgment reserved), it is, then, a propitious time to re-examine a particularly dubious aspect of the majority’s reasoning in Nicklinson namely, its characterisation of the declaratory power, not least given the potential for such reasoning to deleteriously affect the new challenge.
A right to death?
The discussion surrounding assisted suicide in the ECHR context suffers due to a lack of clarity surrounding the nature of the rights being discussed. Since the decision of the European Court of Human Rights (‘ECtHR’) in Pretty v UK it has been accepted that the right to private life enshrined in Article 8 encompasses the “right to choose the manner and timing of one’s death”. That is not the equivalent of a right to die. Importantly, as a qualified right, the State can validly interfere with the right to choose the manner and timing of one’s death provided such an interference complies with the requirements of Article 8 (that is, pursues a legitimate aim and is both necessary and proportionate).
Nicklinson and declaratory relief under the Human Rights Act 1998 (‘HRA’)
The power to issue declaratory relief under s 4 of the HRA is discretionary and, significantly for instant purposes, such a declaration “…does not affect the validity, continuing operation or enforcement of the provision…” (s 4(6), HRA). Parliament can choose to remedy an incompatibility which is the subject of a declaration under s 4 or it can choose “…to do nothing … either because it does not share [the court’s] view that the present law is incompatible, or because, as a sovereign Parliament, it considers an incompatible law preferable to any alternative” (per Lady Hale in Nicklinson at ). Indeed, so limited is the impact of a declaration in terms of rights protection that the ECtHR has found that it does not constitute an effective remedy for the purposes of Article 13 of the ECHR (e.g. Burden v United Kingdom (2006) 21 BHRC 640). Nonetheless, the majority Supreme Court in Nicklinson approached the task of considering compatibility in a way which fundamentally conflicted with the limited nature of the declaratory power.
Each of the nine judges of the Supreme Court who heard the appeals in Nicklinson delivered separate reasons which can be categorised into three distinct camps. Lords Clarke, Sumption, Reed and Hughes considered that the nature of the subject matter and, in particular, its moral complexity, rendered it institutionally inappropriate for the court to consider the compatibility of the ban with the ECHR. In contrast, Lords Neuberger, Mance and Wilson considered that “…it was such a controversial issue…” that it was institutionally inappropriate to issue a declaration without first giving Parliament the opportunity to consider the issue. Whereas Lady Hale and Lord Kerr determined that the blanket bad was incompatible with Article 8 and would have issued declarations to that effect.
The majority’s error(s)
Underpinning the approach taken by both camps comprising the majority appears to be the (erroneous) assumption that a declaration under s 4 would in some way impermissibly encroach upon the role of Parliament as the appropriate source of legislative change. As set out above, a declaration under s 4 does not affect the validity of the legislation concerned (which can be contrasted with, for instance, the power exercised by the Canadian Supreme Court). While it is arguable that the courts ought not to undermine the strength of declarations by issuing them in circumstances unlikely to lead to legislative change, that was not one of the expressed justifications for the majority’s approach in Nicklinson. Indeed, Lord Neuberger (somewhat ominously) signalled to Parliament that should it fail to ‘satisfactorily address’ (whatever that might mean) the issue of amending s 2(1), a subsequent application for a declaration may well be successful, regardless of whether it would be heeded (see ). In the event, amendments to s 2(1) permitting access to physician-assisted suicide in limited circumstances have been considered (unsuccessfully – for different reasons) by both Houses (notably, the House of Commons damningly rejected the proposed amendments by 330 to 118 votes). It is unclear whether the courts considering Mr Conway’s challenge will consider Parliament to have ‘satisfactorily addressed’ the issue.
Regardless of the justifications for the majority’s refusal to consider the question of compatibility, the refusal fundamentally undermined the strength of the declaratory power. As Lord Kerr observed (in dissent) at :
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…
By failing to engage with the question of compatibility, the majority denied Parliament the benefit of its legal assessment and the consequences of this are manifested in the subsequent debate of the House of Commons. As but two examples of the Members’ (erroneous) understanding of the reasoning:
If I am correct, in the Nicklinson case only two of the judges recognised that there was an issue. Seven of the judges—the majority—indicated that the law on this is in accordance with the margin of appreciation under the European convention on human rights…
…Mr Nicklinson[‘s] … case proceeded to the Supreme Court, as everybody here knows, and in June 2012 [sic] the majority held that there was an incompatibility between our current position and fundamental human rights, but because of the margin of appreciation they should not themselves make a declaration to that effect but leave it to Parliament to further consider the issue, and today is that opportunity.
Whatever is required of Parliament to demonstrate that it has ‘satisfactorily addressed’ the question of amendment, that condition certainly cannot be met in circumstances where MPs have fundamentally misunderstood the Supreme Court’s reasoning.
A further consequence of the majority’s mischaracterisation of the declaratory power was the impermissible shifting of the onus of justifying the interference onto the appellant. Once an interference with Article 8 has been found (and there is no dispute that s 2(1) constitutes such an interference), the onus shifts to the State to justify it (e.g. Biao v Denmark (Grand Chamber) (App No. 38590/10) (24 May 2016); Mozer v The Republic of Moldova and Russia (Grand Chamber) (App No. 11138/10) (23 February 2016)). Lords Clarke, Sumption, Reed and Hughes, in refusing to consider compatibility, accepted that the previous ‘considered assessment’ of Parliament of this issue was sufficient to displace the court’s supervisory function (a function which was enshrined by Parliament in ss 3 and 4 of the HRA). Similarly, Lord Neuberger claimed that it was the applicant’s responsibility to ‘sufficiently me[e]t’ the untested (and unverified) concerns of the State. Based on their Honours’ reasoning, it was incumbent upon the applicants to demonstrate that the interference was not justified, which is plainly contrary to the accepted burden borne by the State of proving that the interference is justified. The mere fact that an issue is morally contentious does not permit the State to abdicate its responsibility in this respect. By failing to properly examine the evidential merits of the State’s justifications (and, indeed, by additionally requiring the applicants to meet those untested assertions), the majority erroneously shifted the burden of justifying the interference onto the applicants.
Given the likely significant impact Nicklinson will have on the way in which Mr Conway’s challenge to s 2(1) of the Suicide Act 1961 is argued, it is imperative that a particularly problematic aspect of the majority Supreme Court’s reasoning be examined; namely, its treatment of the declaratory power. It has been argued in this post that the majority’s refusal to issue a declaration was based on a mischaracterisation of the declaratory power; it (incorrectly) assumed that a declaration would in some way impinge upon the principle of parliamentary supremacy. Significantly, by refusing to engage with the question of incompatibility the majority undermined the core strength of the declaratory power, namely as a means of communication with Parliament, and this is borne out in the subsequent misunderstanding of the majority’s reasoning as demonstrated by various MPs during the subsequent House of Commons debate.
Perhaps more significantly, given the likely impact it will have on the evidence tendered and the arguments run on behalf of Mr Conway, the majority’s approach impermissibly shifted the onus of justifying the interference with Article 8 onto the appellant. The approach taken by the majority in Nicklinson, both in refusing to even consider the compatibility of the blanket ban (per Lords Clarke, Sumption, Reed and Hughes) and in deciding not to issue a declaration because Parliament was the better forum given the complexity of the matter (per Lords Neuberger, Mance and Wilson), was based on the untested assumption that the State’s justifications for the ban were valid. This placed an otherwise unjustified burden on the appellant to counter those untested justifications, a burden which is likely to be unnecessarily borne by Mr Conway.
Postscript: in what is likely to be the first of many misconceptions pervading the coverage of Mr Conway’s application, the opening sentence of the Telegraph’s reporting of yesterday’s hearing repeats the misconception that “[t]he courts could overrule a Parliamentary decision not to legalise assisted dying…” All we can hope is that the courts do not also perpetuate the mischaracterisations that tainted Tony Nicklinson’s proceedings.
Stevie Martin is a doctoral student at Cambridge University.