The right to decide about the right to die

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It was impossible to feel anything but sympathy for Tony Nicklinson, who died a few days ago of pneumonia. Nicklinson suffered from “locked-in syndrome”: left almost entirely paralysed (but intellectually unimpaired) by a stroke, he considered that his quality of life was so low that it would be preferable to die. But his physical incapacity meant that he was himself unable to take the steps necessary to end his life; in practice, he would have required the assistance of a doctor. Earlier this month, Nicklinson asked the Administrative Court to rule on whether it would be lawful for such assistance to be provided. In doing so, he sought to establish that he had a “right to die” – and that the court should change the law, so as to permit voluntary euthanasia, in order to accomodate that right.

Whether the law should be changed in this way, such that one person would lawfully be able to help another person to die, is a highly controversial issue that raises complex ethical, moral and religious questions. But is it also a legal question? In one sense, of course, it is: whether any given act – be it helping someone to die or driving without insurance – should be lawful or unlawful must be a legal question, in that it is a question about what the law ought to be. But was the question raised in the Nicklinson case a legal question in the sense that it was one with which a court of law could properly engage? This may seem like a strange question: after all, the courts’ job is surely to do precisely this sort of thing – that is, working out what exactly the law is and then applying it to the facts of the case. It’s also true that courts “make” law: significant parts of English law are made up of “common law”, or judge-made law, as opposed to legislation enacted by Parliament. Yet in the Nicklinson case, the Administrative Court held that it was not for it, as a court of law, to resolve the issue that had been put to it. Rather, said the Court, the legalisation of voluntary euthanasia was something that could be accomplished only through the enactment of legislation by Parliament. Why?

The Court was influenced by the principle of separation of powers – the idea that the authority of the state is divided between the courts, the legislature and the executive government. That principle would be breached were the courts to bring about the sort of substantial change in the law sought by Nicklinson. But we have already noted that courts can sometimes make law: so how do we know whether, as the Administrative Court held in Nicklinson, a given change is one that only Parliament can bring about? The answer lies in two concepts that can be used to determine the proper limits of the courts’ role under the separation of powers.

First, the courts recognise that they have limited constitutional competence: that primary responsibility for making law resides not with them, but with democratically-elected legislators in Parliament. And while this consideration does not prevent courts from accomplishing incremental changes in the law, it bites with greater force when the change is more radical – especially if the issue, as in the Nicklinson case, is a highly contentious one. In the light of such considerations, Lord Justice Toulson concluded that:

“It is not for the court to decide whether the law about assisted dying should be changed and, if so, what safeguards should be put in place. Under our system of government these are matters for Parliament to decide, representing society as a whole, after Parliamentary scrutiny, and not for the court on the facts of an individual case or cases.”

Second, the courts also have limited institutional competence. In other words, there are certain things that courts are just less well-placed, in practical terms, to do – and which are better left to Parliament. This may be the case, for instance, where a court is confronted not with a simple binary question – “Should X be lawful?” – but with a more complex set of choices. Such was the case in Nicklinson. If the Administrative Court had decided that voluntary euthanasia should not necessarily be unlawful, it would inevitably have had to go on and decide in precisely what circumstances it should be lawful. What, if any, safeguards should there be? Would the person concerned have to be terminally ill? If so, how close to a natural death would they need to be? If not, would they have to have some other form of illness – such as locked-in syndrome – or could a perfectly healthy person be helped to die if they so wished? Would there need to be evidence – and, if so, what sort of evidence – that they had not been coerced into ending their life? Should the law allow assistance to be provided by anyone, or just by doctors? It is strongly arguable that questions such as these – which are complex and interconnected – could best be confronted by Parliament, following appropriate reflection, as opposed to courts. The line between adjudicating (deciding cases according to law) and legislating (making new law) is an indistinct one: but what the court was being asked to do in this case lay very clearly on the legislative side of the boundary. As Mr Justice Royce put it:

“Some will say the Judges must step in to change the law. Some may be sorely tempted to do so. But the short answer is that to do so here would be to usurp the function of Parliament in this classically sensitive area. Any change would need the most carefully structured safeguards which only Parliament can deliver.”

In other words, the Court wasn’t prepared to decide that Nicklinson had a right to die – because, in the first place, the Court had no right to determine that issue. For the courts, in effect, to refuse to engage with the substance of the arguments on the ground that it is not for them to decide the matter may seem perverse: but it does not follow that every question put to a court is a “legal” question that judges can properly answer.

Further reading

The judgment in the Nicklinson case can be found here. Paragraphs 50-87 of the judgment are the most relevant to the issues discussed above.

Question for further reflection

Here’s a possible counterargument to the above.

The courts could change the law – including attempting to answer the various subsidiary questions about the precise circumstances in which voluntary euthanasia should be lawful – and if Parliament doesn’t like the new law, it can change it as it wishes. In this way, courts and legislators may have a form of “dialogue“, where by judicial changes in the law can be reversed or finessed by legislators.

What do you think? Is that an adequate response to the “separation of powers” concerns referred to in the post above?

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