It was the 25th June 2014 and the Highest Appellate court of the UK handed down a heart-breaking judgement to family members of individuals attempting to end their lives by assisted suicide. On the same day this Supreme Court decision also threatened the certainties of the supremacy of Parliament and plunged the UK into a new constitutional crisis. This, although mentioned in the media review of the judgment, has failed to spark the common interest of the people. Unfortunately and, quite possibly with disastrous consequences, it seems to have also failed to spark the interest of parliament. This article is not a review of the horrific circumstances which brought about the appeals in cases such as Nicklinson. The individual case of this very brave but ultimately unsuccessful claimant is a nightmare to contemplate. My particular concern over the rejection of the appeals which would have certainly changed the law around assisted suicide is focusing on the calamitous repercussions of the decision for the relationship between the judiciary and parliament.
As previously mentioned it seems to have gone almost completely unrecognised in both the media and in parliament. In very simple terminology, for the effect I am after, it is enough to say that the Supreme Court has demanded that parliament acts in order to change the legislation. There is no equivocation here. The Supreme Court Justices have decided that parliament must change the law on assisted suicide to allow it to take place in the UK. I cannot be the only one considering how earth shattering this is, can I? Parliament’s legislative supremacy is being openly and very abrasively challenged by the highest judicial authority. The doctrine, which is certainly established and widely accepted by academics, parliamentarians and, strangely, judges has come under fire. It is of course not the first time and it will not be the last. But this development is absolutely monumental and I thought it required some atmospheric build up!
In the judgment Lords Neuberger, Mance, Kerr, Wilson and Lady Hale held that they had the constitutional authority to deliver a declaration of incompatibility with the ECHR, in accordance with the Human Rights Act 1998. This in of itself is hardly anything novel. The HRA specifically provides for the judiciary to deliver declarations of incompatibility where legislation contradicts the provisions of the European Convention on Human Rights and cannot be reconciled. So it is of course within their authority to make such a declaration. Indeed by virtue of the doctrine of parliamentary legislative supremacy the Supreme Court is afforded this capability. The genuine concern enters the frame when further context and comments by the Justices are considered.
Lady Hale and Lord Kerr were prevented from issuing the declaration by the refusal of the three other Lords to agree that one should be delivered at this point. It was further stated that the issue of allowing assisted suicide was a matter for the consideration of parliament alone as it would clearly involve the repeal of section 2 of the Suicide Act 1961 and a shift in the attitudes of the legislature and the judiciary in handling such cases. What followed in the judgment of the Supreme Court were the critical points which have brought into contest the simple view of parliament as supreme. Lords Neuberger, Mance and Wilson believe that even though the matter of assisted suicide should have input and persuasion from the democratically elected legislature, such input is not vitally determinative of the issue. This is certainly an open and direct challenge to the authority of the legislature, at least on the matter of assisted suicide so far.
The court surmised its decisions on the matter by stating that the declaration of incompatibility would not be issued until the matter has once again been considered by parliament. This of course can be perceived as a simple request for parliament to clarify the issue and state its certain position to the judiciary so that a clear judgment can be provided to future claimants whether incompatible or otherwise. However, this perception cannot withstand the circumstances surrounding this recent judgment. In 2009 parliament revisited the issue of assisted suicide by amending the Suicide Act 1961. The legislature at this point chose not to repeal the provisions of section 2 which ensure it is a criminal offence to assist in the suicide of another. This happened only 5 years ago. It is surely not compatible with the doctrine of parliamentary supremacy that the judiciary can demand a review of legislation every time a new parliament is elected.
What is entirely more offensive to the doctrine is that the judgment has clearly enforced an ultimatum on parliament. It is never a positive attribute of any piece of legislation that it can be held incompatible with the ECHR and parliament will strive, generally, to ensure that an act is in a more secure or compatible format in order to avoid claims arising out of such incompatibility. Clearly with an issue as wrenching and terrible as assisted suicide there will be claims. Parliament had 10 years prior to reconsidering the Suicide Act in 2009 to amend the current law in light of the HRA 1998 and chose, actively, not to do so. In recent years there have been numerous cases involving assisted suicide which have been very high profile. So much so that parliament has been all too aware of the matter and several MPs and Lords have demanded parliamentary action.
Yet they have felt the matter needs no further action at this time. The Supreme Court has placed this ultimatum on parliament in order to force action. If the legislature now fails to amend or repeal the provisions which blanket ban assisted suicide then it is clear the judiciary will, as soon as they are able, issue a declaration of incompatibility and stick parliament between that proverbial rock and hard place. If this is not an abrasive ultimatum which directly challenges the concept of parliament’s supremacy then I am a cute little chipmunk called Daisy Goldspink. (I’m not, by the way!). Of course the law would continue to have effect but the legislation would be the target of many challenges before the domestic courts and subsequently the ECHR. This would in the very least then, place the judiciary and the legislature at odds over a very distressing issue and such an emotive matter will undoubtedly see parliament on the back foot, having to hastily respond.
It can certainly be suggested, and indeed I am sure it is, that the judiciary merely want to help parliament’s legislative aims to be clear and precise but this cannot be farther from the truth. Were parliament to once again refuse to change the current position on assisted suicide, they would very shortly be placed in a position which was futile and doomed and would resultantly change their stance creating the effect desired by the Supreme Court Justices. A clear and definitive usurpation of the principle of parliamentary legislative supremacy.
I cannot state that I am drastically fearful of the demise of the doctrine of legislative supremacy of parliament. I believe it rather barbaric and archaic that the constitution allows an elected legislature carte blanche over the legal position on absolutely everything within the UK. It is nothing short of a spectacular move by the Supreme Court though and I am worried that not enough fuss has yet been made of such a move. Hopefully, while I cannot expect a standing ovation for the thoughts in this very short article on this immensely complex issue, further attention will be paid to this constitutional crisis. However the matter of assisted suicide is decided, it will certainly alter the relationship between the judiciary and the legislature as a result of the brave, if not rash, move by these Justices.