Assisted to change the legislation accordingly, therefore limiting

Assisted
suicide is the concept that when a person is incapable of terminating their own
life due to circumstances such as physical disability, that someone else is
therefore needed to aid in this process. Consequently, the problems surrounding
this area are whether crimes such as murder and manslaughter are to be applied
to the people attempting such things. There is much discussion on this both
legally and morally on whether judges should or shouldn’t sentence person B for
assisting in person As death.

 

Judges
use a range of ways to interpret the law. Statutory interpretation is the
process that judges use to apply the law to cases. The four main rules in which
judges do this are via the Literal rule, the golden rule, and the mischief rule
and the purposive approach.  Parliament
has given the courts the ability to use these rules to be able to implement the
right course of action, reading the same statute but interpreting it slightly
different. However, there are limits to such rules and there is discussion as
to how far courts should go to interpret the law as parliament is the supreme law-making
body and the courts are unelected and undemocratic in comparison.

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!


order now

 

The law
on assisted suicide is found in Suicide Act 19611 (section 2). The Human
rights Act 19982
incorporates elements selected from the European Convention on Human Rights and
gives them special legal status as ‘Convention rights’.3 Section 4 subsection 24 states that a judge can
make a declaration of incompatibility if they cannot interpret the domestic law
to coincide with a convention right. However, the judge cannot do anything
further with this declaration as it is then up to parliament to change the
legislation accordingly, therefore limiting their powers.

 

The case
of Nicklinson5
provides evidence that English Judges are willing to impose artificial and
undesirable limits on their own power to change the law, especially in cases
with compelling moral arguments to do so. In this case, there were two appeals,
the first being Mrs Nicklinson and Mr lamb, who used Article 8 of the European
Convention on Human rights, saying it was within their rights to be able to
seek help from a third party to be able to end their life in a private and
dignified manner subject to some controls. They did this by saying the Court
should read the legislation in a way that complies with the convention rights,
or create a declaration of incompatibility. In this case the Secretary of State
said that this is not a contention which a domestic
court should entertain. The second appeal was that the 2010 policy wasn’t
specific enough regarding the likelihood of third parties being prosecuted. Secondly,
the Policy should be changed to make it clear that this person would not be
held liable. Consequently the DPP argued that it is not the courts place to
dictate what her policy should be. In the case of Pretty6,
the European Court of Human Rights held that her desire to end her life did in
fact coincide with article 8.1, it did not however with any other article. This
was decided in the Strasbourg court however he appeal still failed and she was
only partially successful. The case found that the right to
die is found within the right to respect for private and family life contained
in article 8 of the Convention. Her appeal was dismissed due to the fact the
court found that interference with this right is in accordance with the law as
it provides protection.

 

The evidence that this gives that English judges are all
too willing to impose artificial limits on their own power even when they
morally they should take a more active role is, that they don’t issue
declarations of incompatibility. In Lord Neuberger’s judgement in the
Nicklinson case7
it was said that this contention is not capable of being raised before a court
due to the United Kingdoms constitutional settlement, courts are there to
uphold the law given by Parliament. This is because it raises the question of
how much power the courts should have in comparison to Parliament, hence is it
the courts job to question legislation or to apply it. However, by limiting
themselves in ways such as this it causes pain to families and individuals who
otherwise would be able to give themselves the relief they desperately seek.

Furthermore, the DPP arguing that its not the courts place
to argue what her policy should be can seem to be morally wrong, in cases such
as this the defendants in question should be able to appeal and question policy’s
which affect their human rights. With moral arguments such as this, it could be
said that the court is too willing to impose limits upon itself because
ultimately it’s a human life that is in question and how can it be brought down
such decisions when the person in question wants to end their life and have a
willing third party to assist. It was made in The Suicide Act 1961 8 that it was legal to
commit suicide and not punishable by law for attempting to do so. So that
raises the question of why people who are unable to commit suicide on their own
but can express their need for it, are unable to and are denied this right. In
this case the five judges held that the European Court had said that it was up
to the convention states to decide if their own laws on assisted suicide
infringed article, so the fact that parliament had recently spoken on this
meant that the courts can refuse a declaration of incompatibility as it would
seem inappropriate to them.9 This provides evidence
that judges can be seen to be too willing to impose limits on their own powers
even because as said in the judgement, courts waive their right to impose declarations
of imcompatability.

However, it could be said that judges don’t limit their
powers with regards to moral arguments. This is shown in the case of Bland10,
where the courts held the appeal that an omission to give/receive food is
not a positive act and patients have the right to refuse such things. The
doctors are not to be found liable in such cases because patients are well
within their rights to refuse treatment. This is an example of the court taking
a more active role in developing the law but this needs to be furthered by
including positive acts from third parties where the defendants are unable to
commit such acts.

Another example of when the courts were not willing to
impose limits upon themselves was in the case of re A (Children)11. In this case the courts
dismissed the appeal from the childrens parents, who were conjoined and shared
some vital arteries, to keep the children together. Based on the doctors
prediction that the two together would not live longer than a few months but
separate, the smaller child will pass but the stronger of the two would be able
to live a relatively normal and healthy life, the courts decided to give
permission to the doctors to go ahead with the operation. This was in
protection of the children and even if it infringed one of the child’s rights
it protected the other. This court has taken a more active role in developing
the law in this case and not limiting itself even if it could seen
unconstitutional as it was against the parents’ wishes.

Another reason that the courts don’t apply artificial
limits on themselves when morally they shouldn’t, is the fact that the problem
surrounding assisted dying have been spoken about in Parliament regularly in
recent years. The proposition of the Assisted dying bill12 shows the courts that
Parliament are still considering matters such as this. This bill was not passed
as it was not agreed upon in the House of Lords so therefore will not become
legislation, showing the courts that if they agreed to allow people such as Mrs
Nicklinson assistance in death that they would be directly going against
Parliament and going against the nature of the courts as they are not the
Supreme law making body, Parliament is. This gives evidence from the case, that
the limits courts face are not artificial (however seemingly undesirable) as it
is not the courts place to question parliament.

The fact that The Suicide Act is in direct opposition to
article 8 has caused a lot of problems in the courts as can be seen from the
many cases. However, in Lord Neuberger’s Judgement of the Nicklinson case he mentions that Lord Falconer has proposed some
reforms via the Falconer report. One of these being the idea that only people
who are terminally ill are to be able to be grated assisted dying and only those
who have six months to live.

Conclusively, the statement that Lord Neuberger in the
Nicklinson case gives evidence that judges in England are too quick to impose undesirable
and artificial limits on their powers even when it seems like they should take
a more active role in developing the law is in fact true because it shows in
this case that judges will fail to issue declarations of incompatibility even
if our domestic law infringes article 8. This problem will continue to be an
issue until Parliament can either resolve it by changing parts of section 2 to
include third parties being able to assist in suicide if the victim in question
has expressed they are fully willing or to pass a law such as the Assisted
Dying Bill.

 

1
The Suicide Act 1961 sct 2.

2
Human Rights Act 1998 sct 1.

3
Holland, J. and Webb, J. (2016). Learning
legal rules. 9th ed. Oxford: Oxford University Press, p.302.

 

4
Human Rights Act 1998 sct 4(2)

5 Regina (Nicklinson) and another v Ministry
of Justice and others (CNK Alliance Ltd and others intervening) 2014 UKSC
38.

6 R. (on the application of Pretty) v DPP
(2346/02)

7
Ibid para 56.

8
The Suicide Act 1961 sct1.

9 Steve
Foster, ‘Still No Right To Die: A Study In The Constitutional Limitations Of
The UK Judiciary’ (2018) Case Comment Coventry Law Journal

10 Airedale
NHS Trust v Bland 1993 AC 789 , 885.

11 re A (Children) (Conjoined Twins: Surgical
Separation) 2001 Fam 147 (“Conjoined Twins”).

 

12 Assisted
Dying Bill HL 2016-17.