End of life – now await Lord Falconer’s bill on 18 July in the House of Lords

tony nicklinson

The long awaited judgment in R v Nicklinson has been handed down in the Supreme Court. Here is a link to the YouTube video.

Readers will note that the judgment comes after considerable deliberation by  a massive nine  Supreme Court Judges – an extremely rare occurrence. It follows that this is one of the most important judgments of recent times, and is worthy of a careful and comprehensive read.

Dignity in Dying summarise the 366 paragraphs of judgment thus:

Summary of the case outcomes

Martin case

None of the nine justices ordered the Director of Public Prosecutions (DPP) to clarify the prosecuting policy on assisted suicide in relation to healthcare professionals. However, Lord Neuberger, Lady Hale, in particular, made it clear that the justices expect the DPP to look again at her policy in the light of their concerns and comments, and to amend it as she sees fit.

This is, in particular, to address a clear contrast between what the prosecuting policy actually says about healthcare professionals and assisted suicide, and the interpretation given to it by the DPP’s legal counsel during the court hearing on her express instruction (this was essentially agreeing with Lord Judge’s interpretation in his decision on the case at the Court of Appeal).

Nicklinson/Lamb case

Whilst there was no declaration of incompatibility, several of the justices indicated that they think the court could (depending on the application before it) declare section 2 of the Suicide Act incompatible with Article 8 ECHR rights in the future if Parliament does not amend it.

Lord Neuberger, Lord Wilson and Lord Mance accept that, in the right case and at the right time, it would be open to the Supreme Court to make a declaration that section 2 of the Suicide Act 1961 is incompatible with the right to respect for private life protected by article 8 of the European Convention on Human Rights. However, they would prefer that Parliament have an opportunity of investigating, debating and deciding upon the issue before a court decides whether or not to make such a declaration.

Lady Hale and Lord Kerr would make a declaration of incompatibility now. Lord Kerr put matters simply:

“If one may describe the actual administration of the fatal dose as active assistance and the setting up of a system which can be activated by the assisted person as passive assistance, what is the moral objection to a person actively assisting someone’s death, if passive assistance is acceptable? Why should active assistance give rise to moral corruption on the part of the assister (or, for that matter, society as a whole), but passive assistance not? In both cases the assister’s aid to the person who wishes to die is based on the same conscientious and moral foundation. That it is that they are doing what the person they assist cannot do; providing them with the means to bring about their wished-for death. I cannot detect the moral distinction between the individual who brings a fatal dose to their beloved’s lips from the person who sets up a system that allows their beloved to activate the release of the fatal dose by the blink of an eye”.

Is  the judgment the ‘yellow card’ to our legislature; or simply indicative of the Supreme Court judges being too cautious – despite the weight of public opinion concerning their moral duty?

The Assisted Dying Bill brought by Lord Falconer is due for its first reading in the House of Lords on 18 July 2014. The majority of Supreme Court judges have sent a clear message to the legislature – ‘whilst we will not interfere now, should the law not be clarified by new legislation, we may’.