IntroductionThis articleconsiders whether judges impose artificial and undesirable limits on theirpower to change the law and weather all they are doing on morally sensitiveissues is simply carrying out their judicial function of interpreting lawleaving the role of making and changing law to Parliament. The starting pointhas to be what do we mean by the term morality and why do we expect so much ofjudges and should they be any better at making moral judgments than thepoliticians in Parliament? It seems no matter what decision judges arrive at onmorally sensitive issues they will always run the risk of it being said theyare unelected officials and cannot be called to account if they make law,whereas elected politicians can be called to account. It is unsurprising thatjudges are accused of trying to ‘steer clear’ of changing or modifying the law onmorally sensitive issues. A guide as to how judges in the highest court in theland approach matters can be identified in the recent judgment of LordNeuberger in the supreme court in the case of Nicklinson1on the highly sensitive issue of assisted suicide and the competing issues ofParliamentary and EU sovereignty, which arose in the judgment. What do we mean by morality?The OED2defines morality as “the principal governing right and wrong behaviour” andoffers very little by way of assistance.
It seems one person’s view of rightand wrong will not be the same as another person’s but as can be seen from LordNeuberger3he considered assisted suicide a very sensitive issue of morality and worthy oflengthy consideration in his judgement. Issues of morality are oftencomplicated by the ongoing ‘war of sovereignty’ between the UK courts and theEU institutions, which give rise to concerns that judges do impose artificiallimits on their powers. The LawSuicide Act s21961 (SA)4 (1)A person (“D”) commits an offenceif- (a)D does an act capable of encouraging orassisting the suicide or attempted suicide of another person, and (b)D’s act was intended to encourageor assist suicide or an attempt at suicide Article 8 European Convention of Human Rights(ECHR)5 (1)Everyone has the right to respect for hisprivate and family life, his home and his correspondence.
Section 4Human Rights Act 19986(1)Subsection (2) applies in any proceedings inwhich a court determines whether a provision of primary legislation is compatiblewith a Convention right.(2)Ifthe court is satisfied that the provision is incompatible with a Conventionright, it may make a declaration of that incompatibility. The two appeals in NicklinsonThe supreme courthanded down its decision in Nicklinson in 2014, six months7after hearing the legal arguments. There were two appeals which arose out ofclaims brought by three men. The first appeal consisted of Tony Nicklinson andPaul Lamb. Mr Nicklinson suffered from locked in syndrome as a result of acatastrophic stoke and was completely paralysed.
He could only communicate byblinking and Lord Neuberger described his life as “dull, miserable, demeaning,undignified and intolerable”8.Hewas unable to end his life otherwise than by starving himself and wantedassistance from someone to inject him with a lethal drug or help him set up andoperate a blink operated machine. Mr Nicholson sought a declaration that itwould be lawful for a doctor to kill or assist him to bring his life to an endor a declaration that the Suicide Act was incompatible with his Article 8Convention Right. The High Court refused both applications. Mr Nicholson thenproceeded to refuse all food and medical treatment and died a few days later9.For reasons I will not dwell on Nicholson’s wife continued his legal challengein her name as his testatrix and the Court of Appeal 10subsequently dismissed her appeal.
Paul Lamb was added as a claimant to theaction of Mr Nicholson in the Court of Appeal. Mr Lamb had been in a car crashand was completely immobile and could only move his right hand. He applied forthe same relief as Nicklinson and was also refused.The second appealwas brought by a man only known as ‘Martin’ who suffered from ‘brainstemstroke’11.Martin wanted a carer or health professional to assist him to travel toDignitas12in Switzerland to have an assisted suicide. Unfortunately, the CPS prosecutionpolicy on assisted suicide appeared to disadvantage professional or medicalassistors to greater risk of prosecution other than a lay person. Martin soughtan order that the DPP13should clarify his policy for prosecutors and sought clarification andmodification to enable responsible people including carers to know that theycould assist Martin committing suicide. Martins appeal failed in the High Courtand was partially successful in the Court of Appeal Lords Dyson and Elias14considering the Policy not sufficiently clear in relation to healthcareprofessional.
The Court of Appeal gave Mrs Nicholson and Mr Lamb leave to appealin the first appeal and the DPP leave to appeal on the second appeal. The JudgmentLord Neuberger’sstarting point in Nicklinson was to cover the law on the issue of assistedsuicide together with related case law. He began with the basic premise that killingsomeone with intention is murder and without intention can be manslaughter. Hethen considered mercy killings in the context of assisted suicide but said itwould amount to murder15. Lord Neubergerhelpfully reviewed related case law throughout his judgment were the courtsintroduced what amounts to and what I shall call ‘legal fictions’ namely courtsanctioned acts which lead to the death of a person and do not fall foul on thelaw of murder and/or assisted suicide. Lord Neuberger’sanalysis of the case law appears to demonstrate the courts will on occasions todo the exact opposite of imposing artificial limits on themselves and introduceconcepts such as ‘legal fictions’ to allow applicants to succeed. In Airedale16the courts held “the doing of a positive act with the intention of ending lifeis and remains murder”. However, Lord Goff in Bland,17-said, “No offence when treating a patient which hastens death, if the purposeof the treatment is to relive pain and suffering”, even if a positive act isneeded to bring life to an end.
Bland decided that there was no offence inrefusing or withdrawing medical treatment or assistance because the courtintroduced the ‘legal fiction’ of calling a positive act an omission. This is aclear example of the courts not imposing artificial limits on their powers. The case of Re A18involved conjoined twins and is of significance.
In order for one twin to live,it needed to be separated from the other which enviably hastened the death ofthe subsequent twin and therefore a positive act of separation was needed. Thiswas not a positive act that the court could call an omission as per the case ofBland. The court took the law further in allowing positive acts in order toimprove the life expectancy of one twin not withstanding the positive act wouldcause the death of the other. This is further evidence of the court notimposing artificial limits on their powers. In Re B19Dame Butler-Sloss P authorised a more convoluted legal fiction, and extendedthe scope of positive acts the court would allow. In this case, she authorisedthe turning off of a life support machine because she said the continuedapplication of the life support machine to the person’s body constituted in lawtrespass to the person and that trespass needed to be stopped.
A theme runningthrough these cases is that decisions are needed to be made ‘now’ and cannotwait. The courts will intervene and demonstrate a willingness to removeartificial limits on their powers and if necessary, introduce ‘legal fictions’to overcome the problems. An example of this comes from the case of Re A calling a positive act an omission.
So why is it thecourts are reluctant to intervene in cases of assisted suicide but will do soin the cases listed above? The answer may lie in the number of potentialclaimants which could be affected by their decision, i.e., there will be veryfew cases of conjoined twins in any one year but, as Lord Neuberger said20there could be many thousands of requests for assisted suicide. Lord Neuberger thenconsidered the ‘wider issue’ of Sovereignty both in terms of the courtsrelationship with parliament and with the EU institutions on morally sensitiveissues. In these situations, questions on sovereignty can’t be ignored as the claimantsoften seek a declaration that UK legislation is inconsistent with EUlegislation. In Nicklinson Lord Neuberger appeared to impose on himself and thecourt an artificial limit as to the courts power, when he said,21″…whether section 2 infringes Article 8, on the ground that it is an issuewhich is purely one for Parliament?” It makes no sense for Lord Neuberger tosay it was purely a matter for parliament. Parliament gave the courts power tomake declarations of incompatibility.
Lord Neuberger then considered the casesof Koch22,Hass23and Gross24and found them of no particular assistance, save only to confirm, that they didnot call into question his decision that s2 SA 61 did not impose a blanket ban.On the question of blanket bans the courts did not impose artificial limits ontheir powers because there was no need to and the decision of Lord Neubergerwas consistent with Parliaments intention in s2. A declaration ofincompatibility could have meant unelected judges appearing to make law andeffectively abolishing an Act of parliament and this could be seen as a breachof the Doctrine of Separation of Powers. Even though, a declaration does notabolish an Act of Parliament. As far as theissue of the DPP’s guidelines are concerned the court would not make the ordersought by Martin.
The courts will insome cases impose what could be called artificial and undesirable limits onthemselves especially in cases on assisted suicide and ParliamentarySovereignty. In other cases they will not impose artificial limits on theirpowers and use the concept of ‘legal fictions’. ConclusionIn cases involvingmorally sensitive issues, for example, assisted suicide, issues of sovereignty betweenthe courts and parliament as well as EU institutions often arise. The courtsare not afraid to create ‘legal fictions’ to overcome limitations on theirpowers, s2 SA 61, which does not allow anyone to assist someone to commit suicideby way of a positive act (Bland) but by virtue of judicial intervention we findthat positive acts to kill which are not permitted are called omissions as inRe A and therefore judicially sanctioned.
In addition, positive acts areallowed in exceptional cases as in Re B, the ‘legal fiction’ being the removalof trespass to a person. However, on the ‘wider issue’ of sovereignty thesupreme court seemed to be divided between the more conservative arm, four of theSupreme Court judges25in Nicklinson were clearly of the view that it would be institutionallyinappropriate to make an declaration notwithstanding s4 HRA 1998 allows them tomake one. Two of the more liberal judges (Hale, Kerr), took the stance that theywould have made a declaration in any event. Lord Neuberger along with LordsMance and Wilson said they would be prepared to make a declaration in thefuture if the evidence supported it but did not do so in this case. LordNeuberger added the caveat 26,”…at this time”.
He appears to be issuing a warning to Parliament that if theydo not address the issue as the elected representatives of the people, thecourts may be forced to address it for them. On the question of the declarationthat Martin sought that the DPP’s guidelines were insufficient Lord Neubergerin common with all other members of the court27said, “I do not consider that the court should involve itself with the terms ofthe DPP’s policy on assisted suicide…”, again adding a further caveat, “…Iwould expect the DPP to clarify her policy”. This seems to be another warning,but this time directed to the DPP that if ‘she’ doesn’t clarify the guidelines,the courts will. As to the ‘floodgates’ argument, it could be argued that themore individuals that are affected by a judgment, the less likely the courtswill exercise judicial intervention, and they are more likely to impose limits(artificial or not) on their power leaving the decision-making process toParliament.
These applications to the highest court in the land by three verysick individuals to bring their lives to an end, seeking a s4 HRA 1998declaration and a declaration that the DPP’s guidelines were unclear, all ofwhich failed may have as much impact as if there had been a verdict in favourof the appellants28.The reason appears to be that a majority of the court have sent a ‘warning’ toParliament to resolve the issue of assisted suicide and the lack of clarity onthe DPP’s guidelines because next time, the decision of the court, may bedifferent and they may decide to free themselves from any artificiallimitations (to the extent they existed) they imposed on themselves inNicklinson. 1 Regina (Nicholson)and another v Ministry of Justice and others (CNK Alliance Ltd and othersintervening) 2014 UKSC 382 https://en.oxforddictionaries.com/definition/morality3 Para 90-994 Suicide Act 19615 European Conventionof Human Rights 19536 The Human RightsAct 19987 The Supreme Courtdecision in Nicklinson: Human Rights, criminal wrongs and the dilemma of death,Dr Alexandra Mullock, Para 18 Regina (Nicholson)and another v Ministry of Justice and others (CNK Alliance Ltd and othersintervening) 2014 UKSC 38- Paragraph 39 Regina (Nicholson)and another v Ministry of Justice and others (CNK Alliance Ltd and othersintervening) 2014 UKSC 38- Paragraph 610 Regina (Nicholson)and another v Ministry of Justice and others (CNK Alliance Ltd and othersintervening) 2014 UKSC 38- Paragraph 711 Regina (Nicholson)and another v Ministry of Justice and others (CNK Alliance Ltd and othersintervening) 2014 UKSC 38- Paragraph 912 Regina (Nicholson)and another v Ministry of Justice and others (CNK Alliance Ltd and othersintervening) 2014 UKSC 38- Paragraph 1013 Regina (Nicholson)and another v Ministry of Justice and others (CNK Alliance Ltd and othersintervening) 2014 UKSC 38- Paragraph 1114 Regina (Nicholson) and another v Ministryof Justice and others (CNK Alliance Ltd and others intervening) 2014 UKSC 38-Paragraph 1215 Regina (Nicholson)and another v Ministry of Justice and others (CNK Alliance Ltd and othersintervening) 2014 UKSC 38- Paragraph 17 16 Airedale NHS Trust v Bland 1993AC 789 , 88517 Regina (Nicholson)and another v Ministry of Justice and others (CNK Alliance Ltd and othersintervening) 2014 UKSC 38- Paragraph 1818 re A (Children) (Conjoined Twins:Surgical Separation) 2001 Fam 147 (“Conjoined Twins”)19 re B (Consent to Treatment –Capacity) 2002 1 FLR 1090 (” Re B (Treatment) “) 20 21 Regina (Nicholson)and another v Ministry of Justice and others (CNK Alliance Ltd and othersintervening) 2014 UKSC 38- Paragraph 58 C22 Koch v Germany (2013) 56 EHRR 6 , paras 46 and 5123 Haas v Switzerland (2011) 53 EHRR33, para 5124 Gross v Switzerland (2014) 58 EHRR7 , para 60. 25 Regina (Nicholson)and another v Ministry of Justice and others (CNK Alliance Ltd and othersintervening) 2014 UKSC 38- Paragraph 14826 27Regina (Nicholson) and another v Ministry ofJustice and others (CNK Alliance Ltd and others intervening) 2014 UKSC 38- Paragraph 148 E 28