Thejudgement of Lord Neuberger provides, in my view, strong indications of judges’willingness merely just to impose questionably valid, artificial and undesirablelimits upon their power to change the law. This reluctance to adapt to a moreactive role in developing the law as in the Nicklinson case, I agree, isespecially mirrored in compelling cases such as the Conway case and the Prettycase, dealing with potential alteration in the law involving assisted suicideand the Suicide Act 1961, which states that if the defendant ‘does an actcapable of encouraging or assisting suicide of another person’ and its conflictwith sections of the Human Rights Act 1998. In these cases, the courts fail tomaximise their power, refusing to perhaps step out of their power and challengeParliament’s legislation or even make a declaration of incompatibility, whichcould be argued to be constitutionally appropriate, especially with regards tothe Suicide Act 1961. Thejudgment of Lord Neuberger in Regina (Nicklinson) and another v Ministry ofJustice and others (CNK Alliance Ltd and others intervening) is evidential ofthe courts limiting their own power, yet there are indications of the courtstaking a more modernised and active role in developing the law.
In these cases,the appellants (Martin, Nicklinson and Lamb) suffered from catastrophicphysical disabilities and wished to end their lives. As they were incapable ofending their own lives without the assistance of a third party it was likelythat those who provided such assistance would be guilty of assisted suicideunder s.2 of the Suicide Act 1961 s.2(1), whilst those who carried outeuthanasia would be guilty of murder. Acrucial argument in favour of the appellants was the breach of article 8 of theConvention,Article 8.
1 of the Convention demands ‘respect for his…privatelife’, furthermore, Article 8.2 states that ‘interference by a public authoritywith the exercise of this right’ is prohibited, insinuating that the appellantsshould maintain autonomy in making their decision to end their lives. Both the Court ofAppeal and the High Court had accepted that articles 8 and 14 of the Conventionwere engaged in the claims of the appellants,11 but had held that the existinglaw was within Parliament’s discretion and margin of appreciation and thusnecessary in a democratic society under the qualifying provisions of thosearticles, consistent with the Strasbourg court. Whilst the High courtmaintained strict adherence to the idea of the separation of powers, abiding byparliamentary legislation, in its decision, as the courts noted that the decision in Pretty v United Kingdom 14 madeit clear that a blanket ban on assisted suicide was not disproportionate andwas compatible with the limitations in article 8(2), however still “theNicklinson case raised significant moral and ethical, as well asconstitutional, questions on the relationship and role of the domestic courtsand Parliament.” Lady Hale dissented strongly against the decision of held inthis case, questioning whether a declaration of incompatibility in accordancewith Convention rights, should be granted on the facts, and that the complexityof 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’., evengoing on to name it a “form of cruelty.” In her Ladyship’s view, that aim didnot in itself justify a universal ban on assisted suicide and a legal systemshould be able to devise a process for identifying those people who should beallowed help to end their lives, perhaps suggesting a narrower ban and a moresubjective approach to be taken.TheCourt, however, held that it was constitutionally open to domestic courts toexamine whether s.
2(1) violated art.8 88 and “institutionallyappropriate” despite the morality of the subject.89 Papadopolou points outthe, “stark contrast with Lord Bingham’s judgment in Pretty that maintainedthat the House of Lords was unable to make ethical and moral decisions.
” Thereforewhilst, the Suicide Act 1961 itself has not been altered, there is a clearprogression in the attitudes of judges. Additionally, as the consequences of adeclaration of incompatibility under section 4(2) HRA are, rather limited, andas Mullock suggests, “the powers conferred to the court do no more thanindicate to Parliament that they should review the relevant provision in orderto reassess its compatibility with the Convention.”33 As Lady Hale confirmed,Parliament is ‘free to cure that incompatibility, either by a remedial orderunder section 10 of the (Human Rights) Act or … by an Act of Parliament, or todo nothing’ Furthermore Mullock states that “For this reason, the SupremeCourt’s warning (that a future declaration of incompatibility might followParliament’s failure to consider this question) has arguably had a similarimpact to an actual declaration.” I disagree with this statement, in that thecourts could have appropriately issued a declaration of incompatibility, yetthe attitude of Lady Hale would definitely in my view indicate a correctapproach to developing the law.
Foster claims Lady Hale’s expression of opinionto be, “judicially brave.” In accordance with Foster, such an expression in myview, displays real “innovative judicial activism, attempting to providejustice through the rule of law and the protection of fundamental human rights.”This conflicting attitude, whilst it did not alter the overall outcome infavour of the appellants, provides a key example of how certain judges of thecourts, are beginning to radicalise their views in favour of adapting a moreactive role in the law. However, the decision of the High Court hindersthis progression, as Foster states it to be, “a stark illustration of thelimited role of (our) domestic courts in upholding human rights and challenginglaws 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 perhapsevaded a strong opportunity to take a more active role in developing the law,in terms of assisted suicide. Diane Pretty experienced pneumonia andrespiratory failure, which she described as, “not life,” claiming she was “alreadydead,” and unable to commit suicide herself.
Attempting to prolong her lifeuntil she had had enough of life, spending her final moments with her lovedones, she refused the idea previously of ending medical treatment. Refusingthis withdrawal of treatment, it had become impossible within law to hasten herdeath quicker. Unable to gain a form of assisted suicide after this refusalindicates a potential suggestion of immediacy to suicide, highlighting a flawin the Suicide Act, which I feel supplies a real opportunity for the courts todevelop the law, agreeing with Diane Pretty herself, “The law has takenaway all my rights”Thecase was taken to the European Court of Human Rights where she claimed that herrights underArticles 2, 3, 8, 9 and 14 of the European Convention of Human Rights werebeing infringed, following the DPP’s dismissal of her request to grant herhusband immunity from liability should he assist in her suicide.
The appellantargued that Article 3 of the European Convention of Human Rights, whichestablishes that ‘no one shall be subjected to torture or to inhuman ordegrading treatment or punishment’ could be referring to her permanent state ofdiscomfort, and therefore, the continuation of her life was in conflict withsuch legislation. However the dictum of the courts in this case directlydemonstrates judges’ willingness to impose artificial limits upon their power,avoiding to take a more active role in developing the law, as the Court foundthat private life is “a broad term not susceptible to exhaustivedefinition” Pretty v UnitedKingdom (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 incompelling cases such as this to be left with unclear guidelines and no remedyto their current issue, thereby reinforcing the stance taken in the Nicklinsoncase.Thecourt therefore concluded in para 78 that “the interference in this case may bejustified as ‘necessary in a democratic society’ for the protection of therights of others”, so that there was no violation of article 8.It could beargued that perhaps the court is taking a strong standpoint, in adhering totheir role in applying law set out through Parliamentary legislation in the SuicideAct 1961, reinforced by Lord Bingham, that the courts, “had shown amplegrounds to justify the existing law and the current application of it.
“However, again the case of Pretty shows a rather antique aspect that stillexists in the judiciary system, and perhaps suggests that judges could do moreto modernise and adapt the law to fit with contemporary issues. Papadapoloupoints out how Lord Bingham noted that a number of bodies previously rejectedthe reform of the law: the House of Lords Select Committee on Medical Ethics in1994, the Criminal Law Revision Committee in 1980, and the Council of Europe’sRecommendation 1418 in 1999 on the protection of the human rights and dignityof the terminally ill and dying.53 Papadopolou draws the distinction betweenthe House of Lords approach in Pretty in 2001, highlighting that the case forreform has been already examined and rejected, and the Supreme Court’s approachin Nicklinson in 2014, in which some judges not only do not justify theprohibition, but also suggest how the law may be reformed.
54 Therefore indrawing this distinction between the attitudes of judges in the Pretty case andthe Nicklinson case, whilst there has still been no reform of the Suicide Act1961, there has been a strong alterationof attitudes towards how the Suicide Act would engage articles of theConvention. Purdy: The case of R. (onthe application of Purdy) v DPP DebbiePurdy sought information from the DPP as to his likely attitude to a prosecutionof 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 inpre-existing legislation, the debate led to the drafting of the 2010 Policy for Prosecutors in Respect of Cases ofEncouraging or Assisting Suicide.
However, as stated in the introduction of the policy the ‘case of Purdydid not change the law: only Parliament can change law on encouraging or assistingsuicide’. The supremacy of Parliamentover the courts remained intact in the outcome of this case, regardinglegislation, meaning that judges have their power limited, and therefore cannotuse their own power to change the law. However, Departing from its decision inPretty v DPP, following the Strasbourg court’s decision in Pretty v UK, theHouse of Lords upheld her contention that the DPP’s refusal infringed herarticle 8 rights. Given that her article 8 rights were engaged, Ms Purdy wasentitled to expect the law to be accessible and foreseeable, and this requiredthat “the law must indicate with sufficient clarity the scope of any suchdiscretion conferred on the competent authorities and the manner of itsexercise”, as Lord Hope said at para 43 quoting from Hasan and Chaush vBulgaria (2000) 34 EHRR 1339, para 84.
This thereby indicates how the courtsactually take initiative in a compelling case and attempt to add clarity to theconsequences of an infringement of parliamentary legislation, showingintentions of wishing to help develop the law, as portrayed in Lady Hale’sprogressive attitude,in para 64, “the object of the exercise should be tofocus, not upon a generalised concept of ‘the public interest’, but upon thefeatures which will distinguish those cases in which deterrence will bedisproportionate from those cases in which it will not”.