Assisted dying again: R (Conway)

By 2:1, the Administrative Court has dismissed the application of Mr Noel Conway for a declaration that s 2(1) of the Suicide Act 1961 breached his human rights under Articles 8(1) and 14 ECHR.

Background

In R (Conway) v Secretary of State for Justice [2017] EWHC 640 (Admin), Mr Conway, aged 67, had been diagnosed with Motor Neurone Disease. A time would come when he would be told that he had less than six months to live and he wished at that point, while still able to make the decision himself, to die with medical assistance. S 2(1) of the 1961 Act criminalises those who assist individuals to commit suicide. Whether someone will be prosecuted for assisting suicide is governed by the detailed policy promulgated by the Director of Public Prosecutions in 2010 in response to the decision in R (Purdy) v Director of Public Prosecutions [2009] UKHL 45 and refined in 2014 following R (Nicklinson) v Ministry of Justice [2014] UKSC 38.

A similar declaration of incompatibility was sought in Nicklinson but refused by the Supreme Court by a majority of seven to two. Therefore:

“The essential question in this application is whether the circumstances which led the Supreme Court to refuse to grant the declaration in June 2014 have changed so that a different outcome could be possible today. I note that Mr Conway seeks a declaration of incompatibility with Article 14 ECHR in addition to Article 8 ECHR. No such declaration was sought in the Nicklinson case, not least because earlier authority precluded such a course. To my mind, there can be no realistic prospect of the claimant succeeding under Article 14 ECHR if he is unable to succeed under Article 8 ECHR” [4].

The judgment

Burnett LJ, with whom Jay J concurred, concluded that permission to apply for judicial review should be refused:

“The core reason for doing so is that Parliament has reconsidered the issue of assisted dying following the decision of the Supreme Court in Nicklinson, as that court encouraged it to do. Both the House of Commons and the House of Lords have debated the matter in the context of bills proposing a relaxation of the strict application of section 2(1). The result is that Parliament has decided, at least for the moment, not to provide for legislative exceptions to section 2(1) of the 1961 Act. The policy of the DPP has also been subject to parliamentary scrutiny and debate. That controls the practical application of the statutory provision. The Strasbourg court has ruled that the question whether there should be exceptions to a blanket ban on assisting suicide falls within the margin of appreciation of the State parties to the ECHR. Whilst the Nicklinson case recognised a jurisdiction in the courts to issue a declaration of incompatibility in these circumstances, even where Parliament had struck the balance for itself, the Supreme Court also recognised that Parliament was better placed to resolve these sensitive issues. For the purposes of CPR Part 54, I do not consider that it is arguable that a declaration of incompatibility should be made, in the light of the post-Nicklinson parliamentary consideration of this very difficult moral issue” [5].

Burnett LJ cited with approval Lord Clarke’s conclusion in Nicklinson at [293], as follows:

“If Parliament chooses not to debate these issues, I would expect the court to intervene. If, on the other hand, it does debate them and, after mature consideration, concludes that there should be no change in the law as it stands, as at present advised and save perhaps in exceptional circumstances, I would hold that no declaration of incompatibility should be made … In these circumstances, I would conclude that the courts should leave the matter to Parliament to decide. I recognise that it may well be that, for the reasons given by Lord Neuberger and Lord Wilson, Parliament will conclude that some such process as they suggest might be appropriate but, as I see it, that is a matter for it (and not the courts) to determine. In particular, judges should not express their own personal views on the moral questions which arise in deciding what is the best way forward as a matter of policy. As Lord Sumption says in para 228, the imposition of the personal opinions of professional judges in matters of this kind would lack all constitutional legitimacy” [Conway at 15: emphasis added].

In short:

“… the settled position of both Government and official opposition is that any change in the law must await a private member’s bill which commands support in both houses. All current indications are that such a bill would struggle to pass. Whatever the position in the courts any change in the law seems unlikely in the foreseeable future” [29].

Charles J’s dissent

In the view of Charles J, the questions to be addressed were these:

“i) Whether the effect of the judgments given by a nine-member Supreme Court in Nicklinson found the conclusion that the Claimant has not raised an arguable ground for judicial review that merits full consideration? and

ii) Whether as a matter of discretion permission should be refused?” [31].

He concluded that the answer to both questions was “no” – and that permission should therefore be granted. It was at least arguable that the majority of the relevant reasoning in Nicklinson was that at some time and in some circumstances, it would be

“institutionally appropriate for the court to entertain an application for a declaration that s 2 of the Suicide Act 1961 is incompatible, notwithstanding the common view that Parliament is the preferable forum for deciding the issues. On that basis, the issue on permission is whether in light of what has happened since the decision in Nicklinson it is arguable that in the circumstances of this case, and so now, it is institutionally appropriate for the court to entertain such an application” [41].

He concluded that the underlying problem of institutional competence addressed in Nicklinson did not found a conclusion that Mr Conway should be refused permission to bring his claim. [53].

See also Rosalind English, UKHRBJudges once again avoid right to die issue.

Cite this article as: Frank Cranmer, "Assisted dying again: R (Conway)" in Law & Religion UK, 3 April 2017, http://www.lawandreligionuk.com/2017/04/03/assisted-dying-again-r-conway/

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