Questions of Human Mortality ~ Will Parliament act or will the judges have to ?

Lord Walker of Gestingthorpe

Updated 8th October:

In the Nicklinson case, the Administrative Court refused a certificate for an appeal to the Court of Appeal - see ruling on ancillary applications

An appeal to the Court of Appeal was allowed in the Martin case. 

Updated 7th September

Judgment in the case of Nicklinson v Ministry of Justice [2012] EWHC 2381 (Admin) Toulson LJ; Royce and Macur JJ was handed down on 16th August 2012.  Mr. Nicklinson died on 22nd August - see BBC 22nd August.  The same judgment also concerned the case of a man referred to as Martin.

In his judgment, at paragraph 2, Lord Justice Toulson stated:

"Put simply, the claimants suffer from catastrophic physical disabilities but their mental processes are unimpaired in the sense that they are fully conscious of their predicament. They suffer from "locked in syndrome". Both have determined that they wish to die with dignity and without further suffering but their condition makes them incapable of ending their own lives. Neither is terminally ill and they face the prospect of living for many years."

In an earlier post on this blog it was noted that Charles J had given permission for the Nicklinson case to go ahead to a full hearing - (judgment of Charles J).  That post looked at the tricky question of whether the judges would "cross the Rubicon" and decide in Mr Nicklinson's favour and the post concluded that it was unlikely that they would do so.  Although all the judges expressed great sympathy for Mr Nicklinson, they refused to alter the law and stated that it was a matter for Parliament.

Only a few weeks after this judgment was handed down, Supreme Court Justice Lord Walker of Gestingthorpe spoke in Australia about the role of judges and the extent to which they felt able to amend the law.  Whilst his speech does not cover the Nicklinson case, it is nevertheless of considerable interest.  First, a brief look at what the judges said in relation to Martin and Tony Nicklinson's cases.

Martin's case:

In essence, Martin was asking the Director of Public Prosecutions to amend the guidance issued about prosecution of those who assist another to commit suicide.  That guidance was issued after the House of Lords decision in  R (Purdy) v DPP [2009] UKHL 45, [2010] 1 AC 345.   The primary relief sought by Martin was an order that the DPP should clarify his published policy so that other people, who may on compassionate grounds be willing to assist Martin to commit suicide through the use of Dignitas, would know, one way or the other, whether they would be more likely than not to face prosecution in England.

Mr Nicklinson's case:

Tony wished to be able to choose to end his life by voluntary euthanasia. This did not mean that he necessarily wanted to end his life immediately but he wanted to establish the right to die with dignity at a time of his choosing.

Why did the judges refuse to amend the law?

The following is the concluding paragraph in Toulson LJ's judgment

1. Tony's and Martin's circumstances are deeply moving. Their desire to have control over the ending of their lives demands the most careful and sympathetic consideration, but there are also other important issues to consider. A decision to allow their claims would have consequences far beyond the present cases. To do as Tony wants, the court would be making a major change in the law. To do as Martin wants, the court would be compelling the DPP to go beyond his established legal role. These are not things which the court should do. It is not for the court to decide whether the law about assisted dying should be changed and, if so, what safeguards should be put in place. Under our system of government these are matters for Parliament to decide, representing society as a whole, after Parliamentary scrutiny, and not for the court on the facts of an individual case or cases. For those reasons I would refuse these applications for judicial review. 

Short concurring judgments were delivered by Royce and Macur JJ

Mr Justice Royce:

1. I agree with the analysis, reasoning and conclusions of Toulson LJ. I add only this. No one could fail to be deeply moved by the terrible predicament faced by these men struck down in their prime and facing a future bereft of hope. Each case gives rise to most profound ethical, moral, religious and social issues. Some will say the Judges must step in to change the law. Some may be sorely tempted to do so. But the short answer is that to do so here would be to usurp the function of Parliament in this classically sensitive area. Any change would need the most carefully structured safeguards which only Parliament can deliver.

Mrs Justice Macur:

1. I agree with the judgment of Toulson LJ and endorse the comments of Royce J. Superfluous as it may therefore appear I nevertheless feel compelled to comment that the dire physical and emotional predicament facing Tony and Martin and their families may intensify any tribunal's unease identified by Lord Mustill in Bland (at 887) in the distinction drawn between "mercy killing" and the withdrawal of life sustaining treatment or necessities of life. Judges of the Family Division sitting in the Court of Protection adjudicate upon applications for declarations in relation to the latter and have become well accustomed to the "balance sheet of best interests" which informs the decision of the Court. However, Mr Bowen QC does not succeed in persuading me that this process may reassure society that the development of common law for which he contends is merited by separate consideration of individual circumstances by individual tribunals of whatever stature and experience. The issues raised by Tony and Martin's case are conspicuously matters which must be adjudicated upon by Parliament and not Judges or the DPP as unelected officers of state.

 When might the judges alter the law?

There have been a number of occasions when the judges have amended the law and, in some instances, they have swept away a long standing rule.  Perhaps the most obvious example of this was when the House of Lords removed the archaic rule that a husband could not be guilty of raping his wife - R v R [1992] 1 AC 599 where their Lordships referred to their decision as "the removal of a common law fiction which has become anachronistic and offensive."  They considered that it was their duty to act by removing the rule from the law.

In a recent speech delivered in Australia, Lord Walker (Justice of the Supreme Court of the UK) looked at a number of situations where the judges have developed the law and some where they have not.  His speech is well worth reading in full - "Developing the common law: how far is too far?" - 4th September 2012.

Lord Walker said:

"If we stand back it is not easy to discern, from the pronouncements of the House of Lords and the Supreme Court in the different areas that I have looked at, any clear policy as to what is, and what is not, off-limits for the development of the common law by a court of last resort. A lot seems to depend on judicial intuition. But the cases suggest that it is common law rules which might be described as “lawyer’s law” – such as witness immunity, or mistake of law – that the judges are most ready to develop. Lord Goff had passionately-held views about mistake of law, but it is not a topic that is much talked about on the Clapham bus. Conversely issues which potentially have large social and economic consequences, such as causation in clinical  negligence and industrial diseases, are generally best left to Parliament."

One of the points which Lord Walker makes is that "in the field of human mortality, Parliament has shown a marked reluctance either to clarify or change the law."  The Nicklinson judgment (paras. 45-49) looked briefly at the "Assisted Dying for the Terminally Ill" Bills introduced by Lord Joffe in 2003, 2004 and 2005.    The case of Tony Bland was decided in the House of Lords almost 20 years ago but there has been almost no legislative activity in this sensitive area.  The Mental Capacity Act 2005 with its provision for people to make "Advance Decisions" to refuse treatment is perhaps the major exception.  Lord Walker's concluding remarks are interesting since they point to the possibility that the judges might eventually have to step in so as to resolve cases even in controversial areas.  Lord Walker referred to a comment of Lord Browne Wilkinson in the Bland case::

"The judges’ function in this area of the law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society. If Parliament fails to act, then judge-made law will of necessity through a gradual and uncertain process provide a legal answer to each new question as it arises. But in my judgment that is not the best way to proceed.”
Lord Walker then concluded by saying:

In conclusion, I repeat that judges cannot simply say “pass”. In the absence of legislative action they must resolve justiciable issues brought before them, however much they may feel that parliamentary intervention would have been the better and the more democratic course. As Lord Bingham said in another sensitive case about childcare* it is ultimately the duty of the court to give effect to its own judgment:  “That is what it is there for . . . once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can.  So sometimes, when Parliament refrains from addressing a new problem, the court has no option but to give the best judgment that it can.”


* Re Z (A Minor)(Identification: Restrictions on Publication) [1997] Fam 1, 33

Conclusion

Lord Walker' speech should not be pressed too far in this area since he did not specifically address cases such as Mr Nicklinson's.   Once a society moves away from the stance of prohibiting voluntary euthanasia then the potential problems must be addressed such as guarding against the possibility that individuals might be coerced into taking such a step and there are clear dangers in a situation in which resources to maintain life are expensive.  The matter is one which Parliament ought to properly address.

Further reading:

Law Society Gazette 16th August 2012 - High Court declines JR of assisted suicide law

UK Human Rights Blog - 16th August - Rosalind English - Locked in sufferer's challenge to ban on voluntary euthanasia fails in the High Court

Marlyn Stowe Blog - Tony Nicklinson: the right to die 

UK Supreme Court Blog - Lord Walker urges Australian judges to make tough calls

House of Lords - report on Lord Joffe's Assisted Dying Bill

Scotland - Consultation on a proposed Assisted Suicide Bill

See also The English Legal System by Slapper, G and Kelly, D - 13th Edition 2012-13 - Chapters 3 and 10

Commission on Assisted Dying

which proposed a legal framework for assisted dying  including strict criteria to define who might be eligible to receive assistance and robust safeguards to prevent abuse of any new law.  For a viewpoint on the Commission's report see

Living and Dying Well 28^th February 2012

and for a view that the Commission's report is a terrible proposal which should be rejected see The Commentator.

This Parliamentary Briefing Paper is also a valuable source of information.

World Federation of Right to Die Societies - Euthanasia and Assisted Suicide in Australia -  looks at the Northern Territories Rights of the Terminally Ill Act 1995 which was later overturned by the Australian Federal Parliament.

Exit International - Australia  and also looks at the position in the USA, Canada, Switzerland, Holland, Belgium. Luxembourg and the UK.