Dissenting judge keeps door open for future attempts at forcing a change in the law
30 March 2017
The High Court has refused permission to hear an application that could have paved the way for a review of assisted-dying laws in the UK.
Former social sciences teacher Noel Conway (pictured with his wife) had started judicial review proceedings for a declaration that the ban on assisted suicide is incompatible with his right to a dignified death, which would force parliament to reconsider the law.
The Supreme Court last discussed the issue in the 2014 Nicklinson case. At the time Lord Neuberger concluded it would be ‘institutionally inappropriate’ to make a declaration of incompatibility while MPs were already debating a private member’s bill on the matter.
Conway argued that circumstances had changed since the Nicklinson ruling. His application even included proposals for a framework making assisted suicide lawful for patients suffering from terminal conditions and diagnosed with less than six months to live.
Rejecting the argument, Lord Justice Burnett said ‘the settled will of parliament following the Nicklinson case is that there should be no change in the law by relaxing section 2(1) of the 1961 [Suicide] Act’.
Since Nicklinson, Burnett LJ remarked, parliament had turned down the opportunity to legalise assisted suicide on three occasions and there had been further debates about the issue in Westminster, the last one as recently as 7 March.
‘Parliament has further considered the matter and … despite full investigation and consideration, has been unable to coalesce around a change in the law which would command popular acceptance,’ the judge said. ‘Parliament has done precisely what the Supreme Court suggested was necessary. Having done so, it remains institutionally inappropriate for a court to make a declaration of incompatibility.
‘Had parliament done nothing after the Nicklinson case the claimant’s case that permission should be granted would be unanswerable, however it might fare on further investigation. As a result of the continuing parliamentary attention, and renewed recent determination of the underlying issue, in my opinion the claim is unarguable and I would refuse permission.’
While expressing ‘deep sympathy’ for Conway, Burnett LJ also warned that the lack of consensus around the issue in parliament made a change in the law ‘unlikely in the foreseeable future’.
Conway, who suffers from terminal motor neurone disease, had crowdfunded £30,000 towards his legal costs when he applied to the court on 21 March. Today, funds raised stood at more than £80,000 under a ‘stretch’ target of £100,000.
It is not yet known whether the 67-year-old will decide to appeal against the ruling. If he does, he could find support in the dissenting judgment by Mr Justice Charles, who said he would have allowed the application to proceed to a full hearing, even though this may have been ‘effectively academic’.
Charles J referred to the 7:2 majority ruling in Nicklinson but said it was ‘at least arguable’ based on the majority of the justices’ comments that ‘at some time and in some circumstances, it will be institutionally appropriate’ for the court to entertain an application for a declaration of incompatibility.
In effect, the judge said, there may have been a 5:4 majority in favour of granting permission to proceed to a full hearing.
A ruling is still awaited in a separate application brought by a man known only as Omid, who would like the ban removed for patients suffering from incurable illnesses which, although not terminal, lead to lifelong suffering and a shortened life expectancy.
This story was first published on Solicitors Journal on 30 March 2017 and is reproduced by kind permission