In this essay, I will discuss that the approach the Courts take as demonstrated by Lord Neuberger’s judgment in Nicklinson, is within the jurisdiction of their judicial powers while respecting the principles of Parliamentary sovereignty and the Separation of Powers. In the R (Pretty) v DPP case, the courts at first held that the Suicide Act 1961 didn’t violate her rights under art 8 and 14 from the HRA, this case was brought to the European Court of Human Rights in which it was held that they did violate her rights under art.8 (1) because she had the right to choose how to die, and involving a third party didn’t breach art 8(1); they also held that art 8(2) justified the breach of art.8(1), because it protected the vulnerable people that could be influenced to commit suicide this way. The only way for people in cases like Pretty’s to die a dignified death at the time of their choosing would be if the courts declared an incompatibility between Suicide Act 1961 s.2 and Human Rights Act 1998 art.8.
Although the Courts could have declared an incompatibility after the Pretty case to prevent more people in cases like hers to die an undignified death, they choose against doing so. If they would have filed a declaration of incompatibility, they would not have gone against the principle of Parliamentary Sovereignty, because declarations of incompatibility are within the Court’s jurisdiction according to Human Rights Act 1998 s.4 (2).
What prevented them from doing so? the most likely answer would be that there are many moral discussions about assisted suicide, and making a decision would have brought a conflict of interests not only morally but also about the extent of the Court’s powers when it comes to a final dictum.Other cases in which Lord Neuberger and other judges abstained from declaring incompatibility between HRA 1998 art 8 and the suicide act 196 are the R. (on the application of Nicklinson) v Ministry of Justice case in which they agreed on the incompatibility but didn’t declare it, choosing instead to bring the matter to Parliament for them to discuss, this resulted in the decision of keeping the law unchanged. It should also be taken into consideration that, even if the Courts made a declaration of incompatibility, Parliament is in their own right of keeping the law unchanged according to the Human Rights Act 1998 s.4 (6) therefore leading to the same result they got from the Nicklinson case.Since then another case, R. (on the application of Conway) v Secretary of State for Justice came, but the courts still refuse to declare incompatibility because now they would be going against precedent but also because Parliament is currently considering an Assisted dying Bill thus, being the sensible thing not to declare incompatibility while there is an on-going legislative process, because if they did it would be seen as institutionally inappropriate.
Even if the House of Lords approved the assisted dying Bill, just like the Suicide Act 1961, this Bill might not be compatible with the convention rights because it makes no exceptions. It would only include those who are terminally ill therefore excluding those like Nicklinson and lamb, those with lock-in syndrome which have as much right as those terminally ill; excluding them might violate their rights under art.14 of the Human Rights Act 1998. In Conclusion, although it could be argued that in cases where there are compelling moral arguments like those of Nicklinson, Conway and Pretty the Courts should make use of their role as judiciary in a more active manner in order to change the law or bring the attention of Parliament towards the issue and for them to find a solution. In many cases the Courts might refuse to do so because it might interfere with decisions Parliament might make or has already settled, and challenging or meddling with Parliamentary decisions is both inappropriate and unconstitutional, which proves that they are not imposing limits on themselves but rather applying the law as they should. BIBLIOGRAPHYSuicide Act 1961 (c.60) s.2 Human Rights Act 1998 art.
8 (1)Human Rights Act 1998 art.14 Human Rights Act 1998 s 4 (2)Human Rights Act 1998 s 4 (6)R. (on the application of Conway) v Secretary of State for Justice 2017 EWCA Civ 275 (CA (Civ Div)) R. (on the application of Nicklinson) v Ministry of Justice 2014 UKSC 38; 2015 A.C. 657 (SC) Nicklinson v United Kingdom (Admissibility) (2478/15) (2015) 61 E.H.R.
R. SE7 (ECHR) Pretty v United Kingdom (2346/02) 2002 2 F.L.R. 45 (ECHR)In R (Pretty) v Director of Public Prosecutions 2002 1 AC 800Steve Foster, ‘Still no right to die: a study in the constitutional limitations of the UK judiciary’ (2017) 22(1) Cov LJ 57Nuno Ferreira, ‘The Supreme Court in a final push to go beyond Strasbourg’ (2015) PL 267Alexandra Mullock, ‘The Supreme Court decision in Nicklinson: human rights, criminal wrongs and the dilemma of death’ (2015) 31(3) PN 18