There is no point in the courts repeatedly expressing sympathy while inevitably concluding that nothing can be done on assisted dying, writes Jean-Yves Gilg
13 April 2017
Debbie Purdy ran out of time. So did Diane Pretty before her. The two women were early campaigners in the battle to legalise assisted dying. Countless others have run out of time since. Noel Conway is hoping he won’t be the next one on the list. He probably will, and he knows it, too.
Conway suffers from a terminal form of motor neurone disease. In November 2014 his life expectancy was estimated to be between six and 18 months. Like other sufferers his fears are about loss of dignity in the final stages of the illness.
But knowing he is unlikely to derive any personal benefit from his action hasn’t stopped him from pressing for a change in the law. Yesterday, he got a little closer when the Court of Appeal allowed his application to proceed for a declaration that the law is incompatible with his right to family life under the European Convention on Human Rights.
If changing perceptions about assisted suicide is difficult, decriminalising it is a Sisyphean challenge. For every survey in favour or new laws passed in another country, opposition in parliament knocks it back down the hill. In the past decade, MPs have declined to change the law at least three times. The courts have been softening their stance. Despite appearances, the idea of removing the ban on assisted dying is gaining ground.
Judges and politicians have expressed sympathy for the plight of patients suffering from degenerative illnesses. As far as the law is concerned, however, nothing has changed since the House of Lords’ decision in the Purdy case forced the DPP to issue specific guidance. Even though more than 80 per cent of the public appear to support a change in the law, MPs rejected the last assisted-dying bill by a crushing 330-118 majority.
With the Nicklinson case decided less than three years ago, it was unlikely that the divisional court would take responsibility for allowing a re-examination of the issue. Especially as parliament has made its position so clear in the wake of the case.
That, however, should not be a bar to Conway’s case, the Court of Appeal has now said. On the contrary, for judges to justify their decision not to intervene on the grounds that parliament has made its views known about an issue means that the courts would never be able to make declarations such as the one sought by Conway. This is logically very pleasing and, at the same time, incredibly forward.
In his ruling, Lord Justice Beatson further unpicked two key points in the Supreme Court’s Nicklinson ruling: the lack of extensive evidence and the absence of a framework providing safeguards that address the legitimate concerns of those against a change in the law. In the Conway case, the application includes a wide-ranging selection of primary factual and expert evidence, and it proposes a possible mechanism with practical safeguards.
Of course, having an arguable case isn’t the same as seeing it succeed. But the Court of Appeal’s decision is the call to action that reformers needed to hear. There is no point repeatedly expressing sympathy while inevitably concluding that nothing can be done, especially where, as in this case, an applicant is also coming with a workable solution. Judicial activism? Perhaps, but what matters is that this declaration of incompatibility now looks a lot more realistic.
This story was first published on Solicitors Journal on 13 April 2017 and is reproduced by kind permission