I'm here to discuss the Supreme Court's recent decision in Nicklinson.
Technically the title of the judgment is: R (on the application of and another) (Appellants)
v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v
The Director of Public Prosecutions (Appellant); and R (on the application of AM) (AP) (Respondent)
v The Director of Public Prosecutions (Appellant) again.
Judgment given on 25th June 2014, it's a very long judgment, 132 pages, nine judges and,
for the purposes of this presentation, I'm not going to attempt to discuss all the implications
of the case.
I'm going to argue why I think that Lady Hale, who was one of two dissenting judges in the
Supreme Court, was right.
What's the case about?
Well, in part it's about the right to die, in part the application of the European Human
Rights Law in the domestic context.
So let's start with that.
Article 8 of the European Convention on Human Rights provides for the right to respect for
private and family life.
At the first paragraph we learn, everyone has the right to respect for his private and
family life, his home and his correspondents.
But as with many articles the second paragraph has the reservations, if you like.
There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic wellbeing of the country
for the prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.
So, clearly this is not an absolute right it's hedged around with restrictions and limitations.
Does it mean that you have a right to die?
There have been many difficult cases argued both at home and across Europe.
The European Court of Human Rights has been edging towards recognising a right to die,
so I'll just give one quote from one recent case, Harson Switzerland decided in 2013.
The court said at paragraph 51, an individual's right to decide by what means and at what
point his or her life will end, provided he or she is capable of freely reaching a decision
on this question and acting in consequence, is one of the aspects of the right to respect
for private life within the meaning of Article 8 of the Convention.
So, this seems to me to be right.
You should in principle be able to choose for yourself how you spend the last stage
or stages of your life.
The state should not put unreasonable or unjustified, or disproportionate obstacles in your way.
Lady Hale says at paragraph 312 of the decision of the Supreme Court in this case, Nicklinson,
that protecting the vulnerable is a reason to justify a general ban on assisting suicide.
But it's not sufficient to justify a universal ban that's the rub, the difference between
a general ban and a universal ban.
The problem starts with Section 2 of the Suicide Act 1961 which makes it a criminal offence
to encourage or assist the suicide of another person.
The Suicide Act 1961 decriminalised suicide but it remains an offence to encourage or
assist someone else's suicide.
Should it be an offence for anyone in any circumstances to help someone commit suicide?
That's the question or one of the questions that the nine judges were considering in this
case.
They considered a series of questions which included the constitutional and some might
say somewhat technical questions of whether it was for the judiciary to do this or whether
they should leave the question to parliament.
By a majority of seven to two they voted not to issue a Declaration that Section 2 is incompatible
with Article 8.
This is all about the Human Rights Act 1998 which incorporated the European Convention
on Human Rights into domestic law in a rather clever way.
Parliament recognised that judges aren't elected and so it didn't give them the power to strike
down laws which they believe are in breach of our fundamental rights.
All the judges can do is issue something called a Declaration of Incompatibility.
The judges in this case were divided over various questions in relation to the possibility
of a Declaration of Incompatibility; in particular the majority thought that now was not the
time to issue one, not in this case.
I'm with the minority, Lady Hale and Lord Kerr, they aren't so very radical.
All they would have done is issue a Declaration of Incompatibility which would have forced
parliament to decide what to do next.
It's important to stress I think that they were not telling parliament what to do.
If they'd had their way, if they had been the majority, parliament would now have had
three options.
The very unlikely option is that it could have amended Section 2 of the Suicide Act
by way of what's called the Remedial Order under Section 10 of the Human Rights Act 1998.
That's a very unlikely option I think because it would have been unthinkable for parliament
to make this very controversial issue to change primary legislation by secondary or delegated
legislation.
The second option for parliament would have been to amend the law by a new act of parliament
and that would I think be my, well it would certainly be my preferred option and I think
Lady Hale's.
Parliament though could of course, even with a Declaration of Incompatibility, do nothing.
That might be because it didn't agree that the present law was incompatible or much more
likely because as a sovereign parliament it considered that an incompatible law is preferable
to the alternative.
So, if our current law is not compatible with Article 8 of the European Convention of course
I would argue the courts have a duty to say so.
Why do the two judges in the minority say that the law is incompatible?
Well, because it's too rigid.
Section 2 of the Suicide Act doesn't allow for any exceptions, which means that no-one
can legally help Mr Nicklinson and people like him to die.
According to Lady Hale, making people like him, or Mr Lamb, or Martin, the third appellant
in this case, live on is itself a form of cruelty.
Let me hesitate for a moment and remind you about some of the facts of the case.
Mr Nicklinson had suffered a catastrophic stroke some nine years ago since when he was
completely paralysed save that he could move his head and his eyes, and for many years
he had wanted to end his life but couldn't do so without assistance other than by self
starvation, which he said was a protracted, painful and distressing exercise.
Mr Lamb, another of the appellants, since a car crash in 1991 has been unable to move
anything except his right hand.
His condition is irreversible and he wishes to end his life.
For Lady Hale forcing these people to live on is itself a form of cruelty.
She says the current universal prohibition is a disproportionate interference with their
right to choose the time and manner of their deaths.
It goes much further than is necessary to fulfil its stated aim of protecting the vulnerable.
It fails to strike a fair balance between the rights of those who have freely chosen
to commit suicide, but are unable to do so without some assistance and the interest of
the community as a whole.
Lady Hale said that paragraph 317.
Today it's actually difficult to know whether someone who actually helps someone else in
this situation to die would actually be prosecuted.
The courts have already created a certain leeway, a certain flexibility which might
be seen by some people as a slippery slope.
I'll paraphrase what Lord Sumption says when he summarises the current position at paragraph
255 of his judgement.
A person who is legally and mentally competent is entitled to refuse food and water and to
reject any invasive manipulation of his body or other form of treatment, including artificial
feeding even though without it he will die.
If he refuses medical practitioners must comply with his wishes and a patient may express
his wishes on these points by an advance decision or living will.
A doctor may also give objective advice about the clinical options available such as sedation
or other palliative care which would be available if a patient were to reach a settled decision
to kill himself.
A doctor is not criminally liable merely because he or she agrees in advance to relieve the
pain that a patient is suffering.
Medical treatment intended to relieve pain and discomfort is not unlawful only because
it has the incidental consequence, however foreseeable, of shortening the patient's life.
Those are Lord Sumption's words.
This is the controversial doctrine of double effect.
It's also important to point out that prosecutions for encouraging or assisting suicide are very
rare.
According to the Supreme Court, Lord Sumption again, between 1998 and 2011 a total of 215
British citizens appear to have committed suicide with medical assistance at the Dignitas
Clinic in Switzerland.
Not one case has given rise to prosecution.
Cases of assisted suicide, euthanasia, are periodically reported to the police but there's
only been one recent prosecution for assisting suicide.
So, this question, this problem is not going to go away.
I've been interested in the issue ever since the case of Tony Bland in 1993.
Tony Bland was a 17 year old who was very seriously injured in the Hillsborough Stadium
disaster in 1989.
Since April 1989 he'd been in a persistent vegetative state and the hospital supported
by his parents sought the court's permission to stop the treatment which was keeping him
going, the life sustaining treatment, including feeding him.
The House of Lords held in that case that withdrawing the artificial feeding through
the nasogastric tube and declining antibiotic treatment if and when infection appeared was
lawful.
In effect he was allowed to starve to death, which I suspect must have been an unpleasant
situation for his family to watch.
I think the House of Lords was right to let him die.
That is, the House of Lords was right to say that the doctors and nurses involved in his
care would not be guilty of murder in allowing him to die.
I was and I remain critical of the reasoning.
Can you really distinguish, morally and legally, letting someone die from killing them?
The House of Lords drew then what I think is an artificial divide between killing and
letting die, which as Lady Hale points out in this much more recent case, she points
out it means that those people who can breathe without artificial help are denied a choice
which is available to those who cannot breathe alone.
Turning off life support seems to be deemed to be letting die and so okay.
So, why not change the law and make it clear that just sometimes people should be allowed
to help other people die?
Lady Hale points out that it would not be beyond the wit of a legal system to devise
a process for identifying those very few people who should be allowed assistance to end their
own lives.
Of course there would have to be essential safeguards.
Her words echo much of what has been written by many people.
I wrote an article 20 years ago in the Liverpool Law Review, Tim Helm, Nicola Padfield's "Setting
Euthanasia on the Level", easily available on the internet, which proposed a system very
similar to that which is proposed by Lady Hale.
Let's hope, I hope, that parliament will be persuaded to revisit this very important area.
Perhaps I can also finish this clip with a PS to any potential law students who are listening.
If you're wondering about studying law, I really recommend a visit to the Supreme Court,
it has really interesting, excellent displays and a great cafe just next door to Westminster
Abbey and over the square from Parliament, but check first on its website to see what's
going on.
Thank you.