R (Nicklinson & Lamb) v. Ministry of Justice - Press release prepared by Doughty Street Chambers

Supreme Court Judgment 25 June 2014

 

Supreme Court stops just short of making a declaration of incompatibility with human rights in a landmark judgment on the right to die cases of Tony Nicklinson, Paul Lamb and ‘Martin’

 

Paul Bowen QC of Doughty Street Chambers, instructed by Saimo Chahal QC (Hon) of Bindmans LLP, represented Tony & Jane Nicklinson & Paul Lamb. 

 

Heather Rogers QC, Caoilfhionn Gallagher and Maria Roche of Doughty Street Chambers, instructed by Yogi Amin and Marcelo Masri of Irwin Mitchell LLP, appeared for the British Humanist Association (intervener).

 

1.    Jane Nicklinson, acting in place of her late husband Tony Nicklinson, and Paul Lamb have fallen just short in their bid to obtain a declaration from the Supreme Court that section 2 of the Suicide Act 1961, which criminalises assisted suicide, is incompatible with their right to respect for private life under Article 8 of the European Convention on Human Rights. Their appeals were heard by a 9-judge Supreme Court over three days in December 2013. Today, by a majority of 7-2, their appeals were dismissed. However, the judgments send a clear message to Parliament that the Suicide Act should be reconsidered, to determine whether changes are needed in order for it to comply with Convention rights protected in the Human Rights Act 1998 (HRA).

 

2.    In the linked appeal of ‘Martin’, the Supreme Court unanimously allowed an appeal by the Director of Public Prosecutions, ruling that her guidance on when    a criminal prosecution would be brought for an offence of assisting suicide was lawful.

 

3.    In this landmark ruling, the Supreme Court unanimously held that it had jurisdiction to determine whether the blanket ban on assisted suicide imposed by s 2 of the Suicide Act 1961 disproportionately interfered with the appellants’ Article 8 rights, even though the European Court of Human Rights in Pretty v United Kingdom had found the ban to be a lawful one (the "constitutional" question). As a result, the question was whether it was for Parliament or the courts to strike the Article 8 balance between individual autonomy and the protection of the rights of others (the “institutional” question). As to that, the court held by a majority (Neuberger, Mance, Wilson, Hale and Kerr) that, while great weight was to be given to Parliament’s views as to where the balance was to be struck, as expressed through the 1961 Act, it was open to the court to find that there was a disproportionate interference with individual autonomy in breach of Article 8 and to make a declaration of incompatibility under section 4 of the HRA. The dissenting minority (Sumption, Clarke, Hughes and Reed) held that, given the highly controversial nature of the issues at stake, it was for Parliament, not the courts, to carry out and determine the balancing exercise. So, on these important constitutional and institutional questions, the appeals succeeded.

 

4.    Two of the justices in the majority, Lady Hale (Deputy President of the Supreme Court) and Lord Kerr, would have made a declaration of incompatibility, on the basis that, in their view, s2 of the Suicide Act 1961 is incompatible with Article 8. The protection of vulnerable individuals might justify a general ban on assisting suicide, but it was not sufficient justification for a total ban - one that made no allowance for exceptional cases and that had the effect of forcing Mr Nicklinson and Mr Lamb (and others like them) to go on living with intolerable suffering.

 

5.    However, the remaining three of the five majority justices (Neuberger, Mance and Wilson) held that it would be inappropriate to grant a declaration of incompatibility now, for two reasons: (1) the evidence before the court on these appeals was insufficient to show that the current prohibition on assisted suicide was necessarily disproportionate; and (2) in any event, Parliament should be given the opportunity to debate the issues first, with Lord Falconer’s Assisted Dying Bill 2014 being before Parliament. Lord Neuberger (President) indicated that his "provisional" view was that the current law was incompatible with the HRA.

 

6.    These three justices, together with Lord Clarke on this point, made clear that they would expect to see Parliament debate whether the law should be changed to  address those in the situation of the appellants in the near future. That might be together with, or in addition to, debate on Lord Falconer's Bill (which would only legalise assisting in the suicide of persons with less than six months to live and therefore not cover those in Tony Nicklinson and Paul Lamb’s situation). If Parliament did not grapple with the issues, there would be a real prospect that a further application for a declaration of incompatibility would succeed. Three justices (Neuberger, Mance and Wilson) did not exclude the possibility of such a declaration being made if Parliament, having debated the issue, decided not to change the law.  Lord Clarke's view was that, once Parliament had debated these issues, the courts would have no further role. 

 

7.    There was judicial support (Neuberger, Wilson and Hale) for the development of a system of safeguards for assisted suicide in special cases (such as those of the appellants), where the ultimate decision-maker would be the High Court. The judiciary has experience in making extremely difficult life and death decisions in other types of case, including where individuals lack capacity to make relevant decisions themselves or where a competent patient wishes to terminate their life support system. From the outset, this was the very system proposed by Tony and Jane Nicklinson and Paul Lamb.

 

8.    So, although they did not attain their ultimate objective, the Appellants have achieved much of what they set out to do:

 

  • The Supreme Court has unanimously established that the HRA gives courts jurisdiction to find that primary legislation is incompatible with Convention rights, even in an area where the Strasbourg Court would not intervene because the matter falls within the "margin of appreciation" afforded to member states. Under the HRA, the domestic courts can now develop their own, domestic human rights jurisprudence. 
  • The Supreme Court has held (by 6-3 majority) that it would not be unconstitutional for the court to make such a finding - even where the decision is in an area of social and moral controversy, where Parliament is the preferred forum for debate on the issue. 
  • A majority of the Supreme Court has indicated that the current blanket ban on assisted suicide either is incompatible with Article 8 (Kerr and Hale) or may well be so (Neuberger, Mance and Wilson). 
  •  Six of the Supreme Court justices have called for Parliament to consider whether the assisted suicide ban is necessary and proportionate in cases like those of Tony Nicklinson and Paul Lamb.

 

9.    The court stopped just short of making a declaration of incompatibility: the bold view in favour of making a declaration (Hale and Kerr) would have gone further than the more “softly softly” approach (Neuberger, Wilson, Mance and Clarke). But the Supreme Court has opened a ‘dialogue’ with Parliament. Having expressed their views (on some issues, provisionally), the Supreme Court has left it to Parliament to debate, and make a decision about, the law.

 

10.  The stage is set for a further HRA challenge in the event that Parliament should fail to grasp the nettle when they come to debate Lord Falconer’s Assisted Dying Bill later this summer.

 

Notes

 

11.  Tony Nicklinson suffered a catastrophic stroke when he was 51, leaving him paralysed and with Locked in Syndrome. He needed 24 hour care, could not communicate save for blinking, and he could move his head and his eyes.   Despite loving and devoted attention from his wife, Jane,  and family he regarded his life as dull, miserable, demeaning, undignified and intolerable and wished to end it in a dignified manner, at a time of his choosing, at home with his family.  

 

12.  After nearly 2 years of battling with the Legal Aid Agency he won the right to public funding. Tony Nicklinson then applied to the High Court for a Declaration that it would be lawful for a doctor to kill him or to assist him in terminating his life or alternatively a Declaration that the current state of law was incompatible with his rights under Article 8 of the European Convention.  The High Court refused Tony Nicklinson’s claim on the ground that the Courts had no jurisdiction to entertain his claim because it was for Parliament, not the Courts, to decide whether the law should be changed. 

 

13.  Tony Nicklinson was devastated by the judgement and embarked on the painful course of self-starvation, refusing all nutrition, fluids and medical treatment.  He died of pneumonia on 22 August 2012.

 

14.  Jane Nicklinson, his wife was added as an applicant in the claim, both in her own right and in her capacity as Administratrix of Tony Nicklinson’s estate. 

 

15.  Paul Lamb came forward and applied to be substituted in place of Tony Nicklinson place and took over the remainder of his claims. Paul Lamb was involved in a car crash in 1990, following which he was left completely immobile and needed the use of a wheelchair , save that he is able to move his right hand slightly and can speak and communicate. He requires 24 hour care for all of his daily needs.   He has stated that his life is monotonous, undignified and he is in constant pain which cannot be alleviated.  He wishes to be able to terminate his own life at the right time. The applications were refused by the Court of Appeal.  Permission was given to appeal to the Supreme Court.  

 

16.  The Supreme Court accepted that there is reliable statistical and anecdotal evidence indicating that hundreds of people suffering from terminal or chronic conditions, whose lives are often painful and/or undignified, commit suicide each year and that a significant number of them are assisted in doing so. However, owing to the extent of their disabilities, people like Tony Nicklinson and Paul  Lamb cannot end their lives without assistance - yet they are unable to obtain the assistance they need, because of the current state of law.

 

The judgment of the Supreme Court can be read here 

Its summary is here

The British Humanist Association (which intervened in these cases) statement is here 

Irwin Mitchell Solicitors press release is here

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