As regular readers will be aware, Mr Noel Conway suffers from motor neurone disease, and while he retains the capacity to make the decision, he wishes to enlist the assistance of a medical professional to bring about his death in a peaceful and dignified way. He applied unsuccessfully for judicial review to seek a declaration under s 4(2) Human Rights Act 1998 that s 2(1) of the Suicide Act 1961 – which provides that a person commits a criminal offence if he or she does an act capable of encouraging or assisting the suicide or attempted suicide of another person and their act was intended to encourage or assist suicide or an attempt at suicide – is incompatible with the ECHR. S 2(1). In  EWHC 640 (Admin), Burnett LJ and Jay J refused his application: Charles J dissented. We noted it here.
In this latest judgment however, R (Conway) v Secretary of State for Justice  EWCA Civ 275, McFarlane and Beatson LJJ concluded that permission to appeal and permission to apply for judicial review should be granted, and they remitted the matter to the Divisional Court to hear and determine the case.
The grounds of appeal
The grounds of appeal were as follows:
- it was self-evident from the division of opinion in the Divisional Court that there was a realistic prospect of success; moreover, the issues raised about Mr Conway and those in a similar position to him were of general public importance and there was a compelling reason for the appeal to be heard ;
- there were three substantive grounds underpinning that position :
- that Burnett LJ (with whom Jay J agreed) had misconstrued the majority judgments in R (Nicklinson) v Ministry of Justice  UKSC 38, 2015 AC 657 and had erred in concluding that Parliament had done precisely what the Supreme Court had suggested was necessary ;
- that they had erred in concluding that Mr Conway’s claim for a declaration of incompatibility was “institutionally inappropriate” ; and
- that they were wrong to have concluded that his application for permission to appeal was unarguable .
In short, it was argued that there was a compelling reason for the appeal to be heard: the issues raised were of general public importance and the Article 8 rights engaged were fundamental to the personal and psychological autonomy and integrity of Mr Conway and of others suffering from similar terminal conditions .
The Court noted that the issue in Mr Conway’s case was “the same or very similar” to that considered by the Supreme Court in Nicklinson. By a majority of 5:4, the UKSC had held that in enacting s 4 HRA 1998 Parliament had given the courts power to declare legislation incompatible with the ECHR even where the decision fell within the state’s margin of appreciation and that, in exercising that power, the courts could not compel Parliament to act to remove any incompatibility identified. Therefore, though in that case it would have not been outside the court’s constitutional or institutional powers to declare s 2 of the 1961 Act incompatible with ECHR Article 8, it was inappropriate for it to do so .
The Court rejected the submission that, in the present case, Burnett LJ was “insufficiently alive” to what counsel had described as the temporal question in Nicklinson: the significance of the fact that at the time of that case Parliament was actively considering the Assisted Dying Bill . As Burnett LJ had pointed out, three private member’s bills had been rejected by Parliament, the Government had made it clear that it had no intention of introducing legislation and the Opposition had indicated that it would be unlikely to press for parliamentary time. Other than the fact that the matter was no longer before Parliament and Mr Conway’s case was supported by direct expert evidence, “matters have not changed” .
Notwithstanding the undoubted need for caution and the fragility of the prospects of a successful application for a declaration of incompatibility, it was important to remember that what was at issue was permission to apply for judicial review. The Court of Appeal did not consider that the judgments of the Supreme Court, and in particular that of Lord Neuberger, could be read as having been intended to mean that it would be appropriate for a court to scrutinise Parliamentary debates:
“Article 9 of the Bill of Rights 1689, which prevents a court from judging the quality of debates in Parliament, was not referred to by the Supreme Court. References to ‘satisfactory addressing of the issue’ do not, and constitutionally cannot, require a qualitative assessment of the nature of the debates. In our view, the need for a ‘satisfactory’ assessment simply meant that the issue had to be addressed adequately, i.e. it had to be dealt with” .
Burnett LJ had recognised that the “the settled will of Parliament” was not to change the law and had found that as a result of “continuing parliamentary attention, and renewed recent determination of the underlying issue”, the claim was unarguable . But it was
“difficult to see how Burnett LJ’s conclusion about the consequences once there has been a debate or a vote does not in practice rule out any future exercise of the jurisdiction to make a declaration of incompatibility because of ‘the settled will of Parliament’” .
“if the fact that Parliament has made a settled decision precludes the exercise of the jurisdiction in such an unqualified and unpredictable way, why is that not arguably an abdication of jurisdiction of the very sort expressly deprecated by Lord Neuberger and which is also inconsistent with the approaches of Lord Wilson, the dissenting justices and possibly Lord Mance?” .
The Court concluded that because, since Nicklinson, Parliament had decided not to change the law and the matter was no longer under active consideration, Mr Conway should be entitled to argue that it was “no longer institutionally inappropriate for the court to consider whether to make a declaration of incompatibility, whilst giving due weight to Parliament’s recent decision” . The material before the Court in the present appeal, lthough similar in substance to that in Nicklinson, was a more wide-ranging selection of primary factual and expert evidence . The inadequacy of the evidence in Nicklinson had been a secondary reason for the majority decision not to exercise institutional competence because the Justices who dealt with both questions had considered that the question of whether it was institutionally appropriate to consider the matter at all “was a prior question which it was first necessary to determine” .
“In our judgment … it is arguable that the evidence demonstrates that a mechanism of assisted dying can be devised for those in Mr Conway’s narrowly defined group that is practical so as to address one of the unanswered questions in Nicklinson. That, while not a free-standing reason for granting permission, supports our primary reason, based on the change in the situation because the matter is no longer before Parliament which has now reached a settled decision not to change the law” .
Permission to appeal and permission to apply for judicial review granted: case remitted to the Divisional Court to hear and determine the case .
See also: Rosalind English, UKHRB: Right to die case allowed to proceed.