The judgement of Lord Neuberger provides, in my view,

The
judgement of Lord Neuberger provides, in my view, strong indications of judges’
willingness merely just to impose questionably valid, artificial and undesirable
limits upon their power to change the law. This reluctance to adapt to a more
active role in developing the law as in the Nicklinson case, I agree, is
especially mirrored in compelling cases such as the Conway case and the Pretty
case, dealing with potential alteration in the law involving assisted suicide
and the Suicide Act 1961, which states that if the defendant ‘does an act
capable of encouraging or assisting suicide of another person’ and its conflict
with sections of the Human Rights Act 1998. In these cases, the courts fail to
maximise their power, refusing to perhaps step out of their power and challenge
Parliament’s legislation or even make a declaration of incompatibility, which
could be argued to be constitutionally appropriate, especially with regards to
the Suicide Act 1961.

 

The
judgment of Lord Neuberger in Regina (Nicklinson) and another v Ministry of
Justice and others (CNK Alliance Ltd and others intervening) is evidential of
the courts limiting their own power, yet there are indications of the courts
taking a more modernised and active role in developing the law. In these cases,
the appellants (Martin, Nicklinson and Lamb) suffered from catastrophic
physical disabilities and wished to end their lives. As they were incapable of
ending their own lives without the assistance of a third party it was likely
that those who provided such assistance would be guilty of assisted suicide
under s.2 of the Suicide Act 1961 s.2(1), whilst those who carried out
euthanasia would be guilty of murder.

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A
crucial argument in favour of the appellants was the breach of article 8 of the
Convention,Article 8.1 of the Convention demands ‘respect for his…private
life’, furthermore, Article 8.2 states that ‘interference by a public authority
with the exercise of this right’ is prohibited, insinuating that the appellants
should maintain autonomy in making their decision to end their lives. Both the Court of
Appeal and the High Court had accepted that articles 8 and 14 of the Convention
were engaged in the claims of the appellants,11 but had held that the existing
law was within Parliament’s discretion and margin of appreciation and thus
necessary in a democratic society under the qualifying provisions of those
articles, consistent with the Strasbourg court. Whilst the High court
maintained strict adherence to the idea of the separation of powers, abiding by
parliamentary legislation, in its decision, 
as the courts noted that the decision in Pretty v United Kingdom 14 made
it clear that a blanket ban on assisted suicide was not disproportionate and
was compatible with the limitations in article 8(2), however still “the
Nicklinson case raised significant moral and ethical, as well as
constitutional, questions on the relationship and role of the domestic courts
and Parliament.” Lady Hale dissented strongly against the decision of held in
this case, questioning whether a declaration of incompatibility in accordance
with Convention rights, should be granted on the facts, and that the complexity
of the moral argument around the protection of vulnerable people should be pursued,
against relying on that as the legitimate aim of the legislation, and it is
“difficult to accept that it is sufficient to justify a universal ban’., even
going on to name it a “form of cruelty.” In her Ladyship’s view, that aim did
not in itself justify a universal ban on assisted suicide and a legal system
should be able to devise a process for identifying those people who should be
allowed help to end their lives, perhaps suggesting a narrower ban and a more
subjective approach to be taken.

The
Court, however, held that it was constitutionally open to domestic courts to
examine whether s.2(1) violated art.8 88 and “institutionally
appropriate” despite the morality of the subject.89 Papadopolou points out
the, “stark contrast with Lord Bingham’s judgment in Pretty that maintained
that the House of Lords was unable to make ethical and moral decisions.” Therefore
whilst, the Suicide Act 1961 itself has not been altered, there is a clear
progression in the attitudes of judges.

 Additionally, as the consequences of a
declaration of incompatibility under section 4(2) HRA are, rather limited, and
as Mullock suggests, “the powers conferred to the court do no more than
indicate to Parliament that they should review the relevant provision in order
to reassess its compatibility with the Convention.”33 As Lady Hale confirmed,
Parliament is ‘free to cure that incompatibility, either by a remedial order
under section 10 of the (Human Rights) Act or … by an Act of Parliament, or to
do nothing’ Furthermore Mullock states that “For this reason, the Supreme
Court’s warning (that a future declaration of incompatibility might follow
Parliament’s failure to consider this question) has arguably had a similar
impact to an actual declaration.” I disagree with this statement, in that the
courts could have appropriately issued a declaration of incompatibility, yet
the attitude of Lady Hale would definitely in my view indicate a correct
approach to developing the law. Foster claims Lady Hale’s expression of opinion
to be, “judicially brave.” In accordance with Foster, such an expression in my
view, displays real “innovative judicial activism, attempting to provide
justice through the rule of law and the protection of fundamental human rights.”
This conflicting attitude, whilst it did not alter the overall outcome in
favour of the appellants, provides a key example of how certain judges of the
courts, are beginning to radicalise their views in favour of adapting a more
active role in the law.

 However, the decision of the High Court hinders
this progression, as Foster states it to be, “a stark illustration of the
limited role of (our) domestic courts in upholding human rights and challenging
laws that possibly breach such rights.”

Pretty:

R
(Pretty) v Director of Public Prosecutions 2002 1 AC 800 (” Pretty v DPP “Pretty:
the case of Pretty provides another key example of how the courts perhaps
evaded a strong opportunity to take a more active role in developing the law,
in terms of assisted suicide. Diane Pretty experienced pneumonia and
respiratory failure, which she described as, “not life,” claiming she was “already
dead,” and unable to commit suicide herself. Attempting to prolong her life
until she had had enough of life, spending her final moments with her loved
ones, she refused the idea previously of ending medical treatment. Refusing
this withdrawal of treatment, it had become impossible within law to hasten her
death quicker. Unable to gain a form of assisted suicide after this refusal
indicates a potential suggestion of immediacy to suicide, highlighting a flaw
in the Suicide Act, which I feel supplies a real opportunity for the courts to
develop the law, agreeing with Diane Pretty herself, “The law has taken
away all my rights”

The
case was taken to the European Court of Human Rights where she claimed that her
rights under
Articles 2, 3, 8, 9 and 14 of the European Convention of Human Rights were
being infringed, following the DPP’s dismissal of her request to grant her
husband immunity from liability should he assist in her suicide. The appellant
argued that Article 3 of the European Convention of Human Rights, which
establishes that ‘no one shall be subjected to torture or to inhuman or
degrading treatment or punishment’ could be referring to her permanent state of
discomfort, and therefore, the continuation of her life was in conflict with
such legislation. However the dictum of the courts in this case directly
demonstrates judges’ willingness to impose artificial limits upon their power,
avoiding to take a more active role in developing the law, as the Court found
that private life is “a broad term not susceptible to exhaustive
definition”   Pretty v United
Kingdom (2002) 35 E.H.R.R. 1 at 61 Instead of refusing to define the law further,
the courts again impose artificial limits on the law, causing the appellants in
compelling cases such as this to be left with unclear guidelines and no remedy
to their current issue, thereby reinforcing the stance taken in the Nicklinson
case.

The
court therefore concluded in para 78 that “the interference in this case may be
justified as ‘necessary in a democratic society’ for the protection of the
rights of others”, so that there was no violation of article 8.It could be
argued that perhaps the court is taking a strong standpoint, in adhering to
their role in applying law set out through Parliamentary legislation in the Suicide
Act 1961, reinforced by Lord Bingham, that the courts, “had shown ample
grounds to justify the existing law and the current application of it.”
However, again the case of Pretty shows a rather antique aspect that still
exists in the judiciary system, and perhaps suggests that judges could do more
to modernise and adapt the law to fit with contemporary issues.

Papadapolou
points out how Lord Bingham noted that a number of bodies previously rejected
the reform of the law: the House of Lords Select Committee on Medical Ethics in
1994, the Criminal Law Revision Committee in 1980, and the Council of Europe’s
Recommendation 1418 in 1999 on the protection of the human rights and dignity
of the terminally ill and dying.53 Papadopolou draws the distinction between
the House of Lords approach in Pretty in 2001, highlighting that the case for
reform has been already examined and rejected, and the Supreme Court’s approach
in Nicklinson in 2014, in which some judges not only do not justify the
prohibition, but also suggest how the law may be reformed.54 Therefore in
drawing this distinction between the attitudes of judges in the Pretty case and
the Nicklinson case, whilst there has still been no reform of the Suicide Act
1961,  there has been a strong alteration
of attitudes towards how the Suicide Act would engage articles of the
Convention.

 

Purdy:

 

The case of R. (on
the application of Purdy) v DPP Debbie
Purdy sought information from the DPP as to his likely attitude to a prosecution
of her husband in the circumstances that her husband would assist her suicide,
and he declined to give it. Whilst the outcome of the case had its grounds in
pre-existing legislation, the debate led to the drafting of the 2010 Policy for Prosecutors in Respect of Cases of
Encouraging or Assisting Suicide.
However, as stated in the introduction of the policy the ‘case of Purdy
did not change the law: only Parliament can change law on encouraging or assisting
suicide’. The supremacy of Parliament
over the courts remained intact in the outcome of this case, regarding
legislation, meaning that judges have their power limited, and therefore cannot
use their own power to change the law. However, Departing from its decision in
Pretty v DPP, following the Strasbourg court’s decision in Pretty v UK, the
House of Lords upheld her contention that the DPP’s refusal infringed her
article 8 rights. Given that her article 8 rights were engaged, Ms Purdy was
entitled to expect the law to be accessible and foreseeable, and this required
that “the law must indicate with sufficient clarity the scope of any such
discretion conferred on the competent authorities and the manner of its
exercise”, as Lord Hope said at para 43 quoting from Hasan and Chaush v
Bulgaria (2000) 34 EHRR 1339, para 84. This thereby indicates how the courts
actually take initiative in a compelling case and attempt to add clarity to the
consequences of an infringement of parliamentary legislation, showing
intentions of wishing to help develop the law, as portrayed in Lady Hale’s
progressive attitude,in para 64, “the object of the exercise should be to
focus, not upon a generalised concept of ‘the public interest’, but upon the
features which will distinguish those cases in which deterrence will be
disproportionate from those cases in which it will not”.

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