The Weekly Round-Up: Assisted dying, the Human Rights Act ‘overhaul’, and the limits of Scottish legislation

11 October 2021 by William Craig Cohen

In the news:

The Sunday Times, now committed to its campaign to change the law on assisted dying, has shared the story of Len and Karen Williamson, who spent £45,000 travelling to Switzerland with the assistance of private ambulances and a private flight, in order for Karen to elect the timing of her own death. Physician assisted suicide remains illegal in the UK, with the Suicide Act 1961 (which simultaneously legalised suicide) rendering liable those who aid, abet or procure the suicide of another to fourteen years’ imprisonment. Repeated challenges have been made against this law, with the most prominent being the leading case of Nicklinson & Anor R (on the application of) (Rev 1) [2014] UKSC 38. A nine-judge Supreme Court rejected the application of Tony Nicklinson, who was paralysed from the neck down and who described his life as a ‘living nightmare’, refusing to issue a declaration of incompatibility under s.4 of the Human Rights Act (see Rosalind English’s post on that decision.) This would have rendered the blanket ban on physician assisted suicide incompatible with the article 8 right to private and family life. Instead, the court expressly left the difficult decision up to Parliament. Since then, the Supreme Court has reaffirmed its position in the case of Noel Conway. Conway’s earlier Court of Appeal decision was considered in full on the UK Human Rights Blog.

Now, there appears to be some new hope for advocates of the right to die, a movement which (where the terminally ill are concerned) is supported by over 90% of the UK population. Baroness Meacher’s Assisted Dying Bill has now reached its second reading in the House of Lords, though it has a long way to go yet. The new Bill would permit attending doctors to provide medicines that would bring about the end of the lives of patients with a committed wish to die, where they are mentally competent and within six months of natural death. They would not be permitted to administer the medicines themselves (potentially leaving out individuals with locked-in syndrome who are not able even to swallow). Parliamentary intervention, strongly recommended by the Commission on Assisted Dying in 2012, would go some way towards curing the unprincipled approaches the courts have been forced to take in tragic cases such as Airedale NHS Trust v Bland [1993] UKHL 17 and A (Children), Re [2000] EWCA Civ 254, two cases which legalised the removal of life support by doctors, and the killing by separation of conjoined twins whose lives are parasitic upon and deadly for their stronger siblings, respectively.

With increasing numbers of states legalising physician assisted suicide, and even euthanasia (such as Spain this year), and overwhelming public support, the UK may eventually follow countries such as Switzerland and the Netherlands in finally permitting assisted dying for those for whom continued life is intolerable. As Christopher de Bellaigue observed in The Guardian in 2019

‘Privately, even surreptitiously undertaken, suicide leaves behind shattered lives. Even when it goes according to plan, someone finds a body. That openly discussed euthanasia can cushion or even obviate much of this hurt is something I hadn’t really considered before meeting the de Gooijers. Nor had I fully savoured the irony that suicide, with its high risk of failure and collateral damage, was illegal across Europe until a few decades ago, while euthanasia, with its apparently more benign – at least, more manageable – consequences, remains illegal in most countries.’

In other news:

• The Lord Chancellor criticised the Human Rights Act on Tuesday. Speaking at a party conference in Manchester, Mr Raab used a ‘cherry picking’ generalisation (a form of logical fallacy), when he gave the uncited example of a convicted domestic abuser activating his article 8 rights to avoid deportation (without citing the grounds on which the purported appellant relied) to conclude that the Act was ‘nonsense’ and promised that he would ‘overhaul’ the Act before the next general election. This argument is redolent of Teresa May’s discredited 2011 speech in which she incorrectly claimed that an illegal immigrant avoided deportation because ‘he had a pet cat’. The renewed undermining the social and political rights enshrined in the ECHR follow the UK’s September listing as a ‘country of concern’ by CIVICUS, a global alliance of civil society organisations from 175 countries which assesses the narrowing of civic freedoms around the world.

• The Guardian has revealed that two-fifths of police forces in England and Wales do not have specialist ‘RASSO’ (Rape and Serious Sexual Offences) units. With renewed focus on the police’s response to sexual crimes against women following the Sarah Everard case this year, the lack of RASSO units even in large police forces such as Greater Manchester police does not look promising as evidence of the police’s overall handling of sexual crimes, especially given the commonality of such offences.

• Despite ever-increasing advertisement of their own environmental policies and goals, such as by joining the Net Zero Lawyer’s Alliance, elite law firms continue to represent fossil fuel clients in trillions of dollars’ worth of fossil fuel transactions, as demonstrated by Yale University society ‘Law Students for Climate Accountability’, which has developed a fossil fuel scorecard for law firms.

• The chair of the Magistrates’ Association, Bev Higgs, has again suggested that lay magistrates should be empowered to imprison offenders for up to twelve months. Currently, magistrates only have sentencing powers that may deprive offenders’ liberty for up to six months. The suggestion is to improve access to justice for those who are caught waiting by the significant backlog of criminal trials, swollen by the coronavirus restrictions. Others view the right to trial by jury with a professional judge too precious to restrict yet further, or push the suggestion of creating of a new, intermediate court.

In the courts:

• In Manchester University NHS Foundation Trust v Fixsler & Ors [2021] EWHC 2664 (Fam), handed down on Wednesday, the High Court granted the application of the Trust to withdraw the life-sustaining treatment of a two-year-old girl, Alta, at an identified children’s hospice. Alta sustained a severe hypoxic-ischaemic brain injury during her premature birth and, although she might continue to live for another two or more years, would remain dependent on a ventilator and unaware of her surroundings with no prospect of recovery. Deprived of her other senses, Alta has retained only the capacity to feel pain, which she frequently experiences this during spasms. The parents are Orthodox Chassidic Jews who strongly opposed the initial decision to withdraw their child’s life support and have attempted every avenue of appeal, including to the Supreme Court and the ECtHR. However, the court exercised its inherent jurisdiction to withdraw life support in May, and this week has dismissed the parents’ challenge for this to happen at their family home. Although the initial judgment was deeply incompatible with Judaic beliefs, and this week’s judgment may seem harsh on the family, Mr Justice MacDonald was keen to remind the court that it was secular law, and the best interests of the child that was to prevail.

• On Wednesday, in the rather mouthy REFERENCES (Bills) by the Attorney General and the Advocate General for Scotland – United Nations Convention on the Rights of the Child and European Charter of Local Self-Government (Incorporation) (Scotland) [2021] UKSC 42 the Supreme Court declared the attempt by the Scottish Parliament to incorporate the United Nations Convention on the Rights of the Child (UNCRC) to be incompatible with the competences laid down by the Scotland Act 1998. Section 28(7) of the Scotland Act expressly states that the Scottish Parliament’s ability to make laws for Scotland under s.28(1) of the Act does not affect the power of the Parliament of the United Kingdom to make laws for Scotland. Various sections of the Scottish UNCRC Bill would purport to enable the Scottish courts to read down, or to declare incompatible laws which contravened the principles laid down in the UNCRC. Following the Continuity Bill case, the UK Parliament could not be considered to ‘make laws’, if those laws could then be legislatively mandated to be read down or declared incompatible by Scottish courts.

• In a decision on judicial review on Monday, the Administrative court in Cardona, R (On the Application Of) v Secretary of State for the Home Department [2021] EWHC 2656 has determined that a section of the Home Office’s “Permission to work and volunteering for asylum seekers” (“the Work Policy”) was incompatible with s.55 of the Borders, Citizenship and Immigration Act 2009. The impugned section attempts to limit the applicability of s.55, which requires that the best interests of relevant children are taken into account in every decision by immigration officials. The Work Policy lays down some of the restrictive rules on asylum seekers being allowed to work, who are by default unable to work, and left with extremely minimal support under s.95 Immigration and Asylum Act 1999 (currently housing and £37.75 per week). The impugned section was unclear and generated disagreement between Counsel and the court. It therefore did not do enough to draw the attention of officials to the requirements of s.55. However, a new version of the Work Policy was published, which was not at issue, nor did any of it apply to the Claimant’s ultimately ‘academic’ case.

On the UKHRB:

• 1COR’s Natasha Isaac reviews the case of R (Cornerstone) v Ofsted [2021] EWCA Civ 1390, in which the Court of Appeal considered whether it was lawful for the claimant independent fostering agency (Cornerstone) only to accept heterosexual evangelical Christians as potential carers.