Tuesday, 17 December 2013

Assisted Suicide ~ appeals to the Supreme Court of the UK

This week, a nine judge strong Supreme Court of the UK has been hearing appeals concerning aspects of the Suicide Act 1961 section 2(1) Complicity in another's suicide Suicide.  It is perhaps the Nicklinson case which attracted the greater publicity (previous post) though, in this appeal, a Mr Lamb was also joined as an appellant.

In Nicklinson/Lamb, the issue is whether the prohibition on assisted suicide in s2(1) Suicide Act 1961 is incompatible with the appellants’ Article 8 right to respect for private and family life. If the answer is yes, the appellants argue that in order to comply with their Article 8 rights s 2(1) Suicide Act 1961 should be read as including a defence of necessity, so that it would not be unlawful for a doctor to assist, or to have assisted, in the suicide of Paul Lamb and Tony Nicklinson where they had made a voluntary, clear, settled and informed wish to end their lives but were unable to do so without medical assistance. Alternatively, if no such defence is available, they seek a declaration that s2(1) Suicide Act 1961 is incompatible with the appellants’ Article 8 rights, in so far as it prohibits assisted suicide in their circumstances.

A further appeal, being heard at the same time, is that of AM ("Martin").

In AM (“Martin”), there are two issues. The first is whether the DPP contravened section 6(1) HRA because his policy statement setting out public interest factors to be considered in the exercise of the discretion to prosecute is an unlawful interference with Martin’s rights under Article 8(1) ECHR (right to respect for private and family life). It is said to be an unlawful interference because it makes insufficiently foreseeable the consequences of a person encouraging or assisting him to commit suicide. The second issue is whether Article 8 requires the DPP not to discourage the sort of compassionate assistance with suicide that Martin seeks.

The Supreme Court Justices have been asked to consider a large volume of material including the report produced by Lord Falconer of Thoroton QC's Commission on Assisted Dying.  In May 2013, Lord Falconer introduced his private member's bill - Parliament - Assisted Dying Bill

Former President of the Family Division, Baroness Butler-Sloss, has argued that we tinker with assisted suicide laws at our peril - Telegraph 15th December 2013.   "Relaxing the law to allow assisted suicide in certain circumstances would turn a long-established legal boundary into nothing more than a weak “line in the sand”, she insisted.

The court will have to consider the argument - put forward to the court by the Ministry of Justice - that Parliament is the place where this controversial matter must be settled.  Even if the Supreme Court is bold enough to read the Suicide Act as including a defence of necessity, difficulties would remain.  Clarity would be required as to the precise circumstances when such a defence would apply.  Perhaps some form of regulation would be required.  How would the weak and vulnerable be adequately protected?  IF (and it is not a certainty) the Supreme Court were to make a declaration that section 2 was incompatible with Article 8, the actual law would not change.  It would then be up to Parliament to decide what to do.  In practice, that would probably require the government to either bring forward legislation or lend support to a private members bill such as that of Lord Falconer or to decide to do nothing about this and say why.  It would ill-become the Ministry of Justice to argue that Parliament is the proper place to resolve this question only for the government to then do nothing.

Additional materials:

An Assisted Suicide (Scotland) Bill was introduced into the Scottish Parliament 0n 13th November 2013.  See the Policy Memorandum.

A House of Commons Library Standard note of 16th March 2012 preceded a backbench debate held in the House of Commons - debate of 27th March 2012.

See also Parliament of Canada - for a useful background paper on the Canadian position. A former Justice of the Supreme Court of Canada (The Hon. John C. Major) has called for the Canadian Federal Government to act to update the law - CBC News 28th October 2013.    In the Canadian Supreme Court decision in Rodriguez v Attorney General of Canada [1993] 3 SCR 519, the court held (5 to 4) to uphold the existing law against assisting suicide.  Jack Major commented that a message to change the law was implicit in the Rodriguez decision.  "I understand why politicians don't want to touch it – because if they introduce a bill to change it, they lose the votes of those opposed. If they do nothing, they lose votes of those in favour,” says Major. “They've chosen to do nothing.”

The Rodriguez decision is considered at:

The problematic moral arguments in the Sue Rodriguez case,

The Court of Pain

Previous posts on this include:

18th June 2012 - Crossing the Rubicon

6th September 2012 - Questions of human mortality - will Parliament act or will the judges have to

13th May 2013 - Questions of Human mortality

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