Rebecca Stinson’s publication, “The Judiciary vs Parliament: Assisted Suicide” (11 July 2014), offers a stimulating and informative assessment of the recent Supreme Court case of R (Nicklinson) v Ministry of Justice  UKSC 38. The case has inevitably attracted much comment and criticism, partially due to its particularly sensitive subject matter, but also, as Rebecca outlines, for its rather unorthodox methods of legal reasoning. Much critique focuses on the statements made by Lord Neuberger in his ‘ultimatum’ to Parliament, and for Rebecca and many others this signals yet another illegitimate attack on our apparently now forlorn constitutional principle of parliamentary supremacy. Whilst this view is certainly an interesting one, I respectfully disagree. Whilst Rebecca sees the judiciary as an institution behaving too actively, I find myself coming to the opposite conclusion – in this case, precisely because of Neuberger’s unusual ‘ultimatum’, the judiciary failed to actually do much at all.
We must first assess exactly what Lord Neuberger laid out in his judgment. The most peculiar things here (and perhaps the most controversial) are his statements which suggest that, whilst at present he was not drawn to issue a declaration of incompatibility (here, with Article 8 of the European Convention of Human Rights), this was not necessarily because of the merits of the case.
Rather, his reluctance to issue a declaration was because (at para 113) the Court should “accord Parliament the opportunity of considering whether to amend section 2” of the Suicide Act 1961, the legislation which is being challenged in this case. He christened the case a “provisional judgment” which awaits a response from Parliament with the warning (at para 118) that “if [the issue] is not satisfactorily addressed, there is a real prospect that a further, and successful, application for a declaration of incompatibility may be made”. This indeed reads much like an ultimatum and immediately raises concerns for anyone with knowledge of the workings and mechanisms of the Human Rights Act. However constitutionally dubious this route may be, however, it cannot be said that “the Supreme Court Justices have decided that Parliament must change the law on assisted suicide to allow it to take place in the UK”. Lord Neuberger suggested that the Court need only to ‘assess’ the law, rather than to ‘change’ the law. Any indications suggesting otherwise were discarded with Neuberger’s addition (at para 118) that “it may transpire that even if Parliament did not amend section 2, there should be no declaration of incompatibility”. This casts doubt on Rebecca’s assertion that “the judiciary will, as soon as they are able, issue a declaration of incompatibility and stick parliament between that proverbial rock and hard place”. Looking at the actual language used, at least on Lord Neuberger’s part, that conclusion seems unlikely. Judges may be sympathetic to the cause (two out of nine judges – Lady Hale and Lord Kerr – said they would issue a declaration on the facts, after all) and in the future, perhaps it is more likely that the judiciary would issue a declaration, particularly if Parliament does not change the law itself, but it is by no means a certainty. The activism of the Court has perhaps been exaggerated.
Other areas of criticism are perhaps also overstated. Rebecca states that “Lords Neuberger, Mance and Wilson believe that even though the matter of assisted suicide should have input and persuasion from the legislature, such input is not vitally determinative of the issue”, which is difficult to disagree with. However, her conclusion, that this represents an “open and direct challenge to the authority of the legislature”, is more questionable. However much the ever-sacrosanct ‘authority of the legislature’ is actually challenged here, it is difficult to see how anything the Lords said was improper. The scheme of the Human Rights Act, particularly with section 4 and the ability to grant a declaration of incompatibility, plainly permits the judiciary to (perfectly legitimately) ‘challenge the authority of the legislature’. The debate on where the power balance has fallen post-HRA is a lengthy legal debate which is not set out here, but whatever one’s own conclusion about the legitimacy of courts using the Human Rights Act, there is nothing starkly unlawful about the Lords simply suggesting that the Court may disagree with Parliament, even its view on assisted suicide is explicit. Thus, any criticism should be directed squarely at the workings of the Human Rights Act rather than at the actions of judges in this case.
It must be conceded at this point, that, like Rebecca, I find it hard to fathom, on a constitutional level, the methods Lord Neuberger adopted. Whilst to me there is no ‘strong-arming’ going on, it is hard to deny that the route taken was, at best, unusual and, at worst, constitutionally unfounded. This is because, arguably, Neuberger is going beyond the powers given to judges in the Human Rights Act. That Act gives judges three options when dealing with claims such as this one. Firstly, under section 4, judges can declare that the legislation as it stands infringes a Convention right and can issue a declaration of incompatibility in response (the remedy the claimants in the Nicklinson case were seeking). Secondly, judges can, under section 3 of the Act, construe the legislation in such a way as to make it compatible with that convention right, if it is possible to do so (the fairly unambiguous wording of the Suicide Act would make such a solution difficult to engineer in Nicklinson’s case). Finally, judges can simply declare that the legislation does not unlawfully infringe any rights, and leave the law as it stands. Neuberger’s approach does not fit neatly into any of these options. The actual effect of his judgment – underneath all of the rigmarole – is that nothing has changed; neither section 3 nor section 4 were used. It is difficult to see where Neuberger’s authority for issuing such an ‘ultimatum’ (however weak that ultimatum may be) comes from, because there exists nothing obvious within the Human Rights Act which grants him such a power. However, this only makes his gambit all the more spiritless; not only is the ultimatum weak, but it is possibly also illegitimate.
In conclusion, then, what has the Court achieved in this case? I cannot conclude, like Rebecca, that there has been a “clear and definitive usurpation of the principle of parliamentary legislative supremacy”. Rather than dominating the will of Parliament, the Court achieved very little, and it did so by utilising dubious and convoluted legal methods. It is that, rather than any erosion of sovereignty, which is the “disastrous” feature of this case. The passing of responsibility onto Parliament may in theory (and it is implied that this was the intention of the Court) place power back into the hands of the most appropriate body to deal with assisted suicide, but the Court’s means of doing so obstruct any genuine progress. If the Court had used any of the already prescribed methods of dealing with cases like these, Parliament would have a clear idea of where to go next, but as it stands, there is very little guidance from the Supreme Court. If a declaration of incompatibility was issued, for example, Parliament would be able to respond appropriately, knowing exactly which parts of the law were troublesome (of course, there is no obligation for Parliament to change anything, even after a declaration of incompatibility has been issued) and enact change if necessary. This would surely spur the legislative response Lord Neuberger apparently so desperately wants far better than an ambiguous and non-binding ‘ultimatum’. Instead, a vague threat looms over Parliament, but with very few actual details of what needs to be done, or what the Court will do in response. The judgment consists of a lot of conjecture, with very little substance underneath. Perhaps this is the reason why, as Rebecca considered, the implications of the judgment have gone “almost completely unrecognised”.