The question of whether the law should prohibit assisted suicide is an ongoing controversy in many Western democracies. It is a question about which reasonable people disagree and which different political communities have answered in different ways. In the American state of Oregon, and in Belgium, Switzerland and the Netherlands, legal prohibitions on assisting suicide have been loosened or abolished entirely. In each case, the decision to change the law has been taken by democratic means. Not so in Canada where in Carter (2015) the Supreme Court by judicial fiat invalidated the federal prohibition on assisted suicide.

Happily, our courts do not yet enjoy the supremacy that North American courts exercise, a supremacy that privileges the views of a small unrepresentative committee over those of the people by way of their elected representatives. And whereas any legislative decision is fully open to correction by a subsequent legislature, judicial decisions like Carter are effectively immune from change. It is next to impossible to correct them by amending the terms of the Constitution and thus one either hopes that the judges change their mind or one tries to change the judges. When judges enjoy the power to decide questions of this kind, then there is every reason to expect judicial appointments to be intensely political.

While British courts cannot invalidate the statutory prohibition on assisted suicide, they have nonetheless been invited in litigation to help undermine it. There have been two main modes of challenge in the courts. The first is a direct argument that the prohibition on assisted suicide flouts the European Convention on Human Rights and that the courts should, by way of the Human Rights Act 1998 (HRA), declare the legislation incompatible with fundamental rights and freedoms. In the Pretty case (2001), the House of Lords rejected just such a challenge, viz. an argument that the prohibition breached the right to life and the right to privacy. In the Strasbourg stage of the same case, Pretty v UK (2002), the European Court of Human Rights upheld the UK’s prohibition but ruled that it was a limit on the applicant’s right to privacy, albeit a limit that was justified because it protected the vulnerable.

The Strasbourg court’s ruling extended the right to privacy very far indeed, much further than the House of Lords in Pretty had thought justified (does a ban on one person helping another person kill himself really disrespect the latter’s privacy?). The consequence of this has been to encourage further challenges, alleging that the prohibition is a disproportionate limitation on the applicant’s right to respect for his private life. In Nicklinson (2014), the UK Supreme Court considered such a challenge – an application for a declaration that the Suicide Act 1961 flouted convention rights.

But this direct mode of challenge, which section 4 of the HRA invites, is not the only way in which courts have been urged to lend their weight to the campaign for law reform. In between Pretty and Nicklinson is Purdy (2009), the last ever judgment of the House of Lords. In this case, the applicant invited the court to compel the Director of Public Prosecutions (DPP) to publish a policy in relation to cases of assisted suicide, such that persons considering committing the offence would know whether they were likely to be prosecuted (and convicted, etc.). The DPP to his credit had refused to issue such a policy because he feared that it would encourage people to disobey the law. The House of Lords ordered the DPP to issue a policy, reasoning that the absence of information about when prosecutions would be likely to be initiated breached the rule of law.

The judgment is wholly misconceived. Whatever one’s views about assisted suicide, the criminal law is entirely clear: assisting another person’s suicide is a serious offence. The likelihood of being detected and prosecuted for committing the offence is irrelevant to what the existing law clearly requires. By ordering the DPP to help would-be law breakers calculate the odds of prosecution, the House of Lords usurped the DPP’s role and undermined the integrity of the criminal law. The decision in Purdy trades on the majesty of the rule of law to help undercut a clear statutory prohibition. This critique of the judgment holds whether or not one thinks that assisted suicide should be lawful: it was perfectly coherent for Sir Keir Starmer to refuse to publish a policy in his capacity as DPP (until the court wrongly compelled him to do so) and later in 2015 to support legislative change in his new capacity as a Labour Party MP.

The mode of challenge one sees in Purdy has been attempted in other jurisdictions too. In Ireland, the High Court declined to follow Purdy. In New Zealand, a related, if slightly different, challenge also failed. And very recently, the courts in Scotland have had to consider whether to permit a similar application. The Suicide Act applies only in England and Wales, not throughout the United Kingdom, and the Scottish criminal law in question differs in important ways from the terms of the Suicide Act. In Ross v Lord Advocate, the Court of Session stressed these differences in explaining its rejection of the application. Unlike in Purdy, there was no gap, the court said, between practice and policy: all or most suspected cases are prosecuted.

It is to the Court of Session’s credit that it did not permit this Purdy-like challenge to succeed. However, it is regrettable that the court did not note more clearly the manifest weaknesses of the reasoning in Purdy, which would fully justify the court in rejecting it. Likewise, the Supreme Court in Nicklinson limited an attempt to extend the logic of Purdy, which had invited continuing challenges to the DPP’s policy. But only Lord Hughes (like Lord Judge in the Court of Appeal stage of Nicklinson) noted with any clarity the absurdity of Purdy. It may be that like other dubious decisions, the reasoning in Purdy will be quietly abandoned and not taken up in the many other similar cases where decisions to prosecute might be said to interfere with privacy. Still, it would be much better for our legal culture if Purdy were clearly rejected as wrongheaded, for this would help avoid further confusion about the rule of law and make it less likely that courts would act to undermine clear legal rules. To this extent, the decision in Ross was a missed opportunity.

The final passages in the Court of Session’s judgment are interesting for another reason. They reflect briefly on some of the constitutional questions raised in Nicklinson, which are extremely important (and complex) and will repay much further attention. Lord Drummond Young notes that both the Scottish Parliament and the Westminster Parliament recently rejected attempts to change the law in question. He maintains, in disagreement with counsel, that this rejection is relevant, and that it weighs against the courts being willing to support change themselves. I am sympathetic to the judge’s disposition, which is to leave such questions to the democratic process. However, even if the legislature had not reconsidered the matter (which is settled by existing statute) the courts should not act to change the law. Certainly, there is no justification for the challenge one sees in Purdy. The merits of the Nicklinson mode of challenge are less clear because of course section 4 of the HRA does authorise the courts to declare legislation inconsistent with convention rights.

In Nicklinson, the Supreme Court divided sharply over the question of whether it was constitutionally legitimate for the courts to issue a declaration in relation to a question like assisted suicide, in light of the Strasbourg court’s rulings on point. Four of the nine judges— Lords Sumption, Clarke, Reed and Hughes—held that a case such as this, which the Strasbourg court had held was within the margin of appreciation, should be left squarely to Parliament. That is, the British courts ought not to opine on the rights-compatibility of the Suicide Act. The other five judges took a different view, reasoning that the British courts should be willing to declare such legislation rights-incompatible, although only two were willing to do so here and now. The other three wanted the matter to be more fully argued and/or wanted to give Parliament first a chance to amend the law. This latter line of reasoning, which at least Lord Neuberger and Lord Wilson adopted, is odd: it amounts to an attempt to make a declaration without making a (formal) declaration. And it plainly invites further litigation for the House of Commons went on to consider and reject a proposal to change the law, after a debate that was widely agreed to have been impressive, balanced and far-ranging.

This division amongst the judges in Nicklinson is extremely important. So too is the willingness of Lord Drummond Young in the Court of Session to comment on the division and to align himself in strong terms with the minority. The concerns about the proper limits of the courts that are articulated by those judges in Nicklinson, and echoed by Lord Drummond Young, are well made. It is to be hoped that unlike the reasoning in Purdy, which should be refuted or abandoned, these concerns will inform the further reasoning of the courts, as well as wider public reflection on the future of our human rights law regime.

Richard Ekins