The right to die: deference, dialogue and the division of constitutional authority

The UK Supreme Court’s decision in R (Nicklinson) v Ministry of Justice [2014] UKSC 38 is one of the most constitutionally significant and interesting judgments that has been given under the Human Rights Act 1998 in recent years. The case is also of potentially great social importance, given the nature of changes to the law on assisted suicide that it may foreshadow. It is no surprise, therefore, that, according to Lord Wilson, the nine members of the Supreme Court involved in the case deliberated for six months with “an intensity unique” in his experience.

Background

Almost completely paralysed following a catastrophic stroke, Tony Nicklinson wanted to die, yet his physical incapacity meant that he could not end his life unaided other than through self-starvation. He therefore wished others to assist with his proposed suicide, but section 2 of the Suicide Act 1961 (as amended by section 59(2) of the Coroners and Justice Act 2009) appeared to stand in the way of others doing so lawfully. It says:

A person (“D”) commits an offence if—(a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) D’s act was intended to encourage or assist suicide or an attempt at suicide.

Against this background, Mr Nicklinson sought declarations in the High Court to the effect either that it would be lawful for a doctor to terminate or assist in the termination of his life, or that the law preventing such conduct was incompatible with Article 8 of the European Convention on Human Rights. Article 8 provides that everyone has the right to respect for private life, but that private life can lawfully be restricted for (among other things) “the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

Mr Nicklinson died long before the Supreme Court gave judgment on 25 June 2014: having lost in the High Court, he declined all food and died of pneumonia. However, the case continued—in order to enable the important legal questions it raised to be determined—by joining his wife, Jane, as a party. The Court of Appeal subsequently declined to grant the declarations sought, as a nine-member Supreme Court—by a majority of seven to two—has now also done.

The constitutional question

The essential question facing the Court was whether the current law is incompatible with Article 8. Is making assisting suicide a criminal offence—at least in relation to individuals who wish to end their own lives but cannot do so unaided—an unnecessary and disproportionate restriction of the right to respect for private life? On the face of it, preventing someone like Mr Nicklinson from lawfully obtaining assistance to end his life is a major incursion into the autonomy value lying at the heart of the right to respect for private life. However, the counterargument is that legalizing assisted suicide would risk a “slippery slope”, and that criminalization is a necessary and proportionate way of protecting the rights and interests of the vulnerable, the sick and the old, who might otherwise be (or perceive themselves to be) pressured into availing themselves of assistance to end their lives. Ultimately, then, the question for the Supreme Court was one of proportionality: was criminalization of assisted suicide a necessary and proportionate means by which to manage the risk to vulnerable individuals?

However, while the front-line question falling for determination took that form, it could be confronted only after considering a prior and fundamental question concerning the respective constitutional authority of the judiciary and the legislature. Put simply, if Parliament—by enacting section 2 of the Suicide Act 1961 and, in 2009, re-enacting the relevant provision in substantially the same form—has determined that the balance between the competing matters outlined in the previous paragraph is to be struck by means of an outright prohibition, to what extent, if any, is it appropriate for a court to call that determination into question? It was on this constitutional question that judicial opinion sharply divided. And concealed within the ostensibly binary seven-two split in the Supreme Court there is in fact a three-way disagreement between the Justices:

• The dissentients, Lady Hale and Lord Kerr, concluded that the present law is incompatible with Article 8 and that it would have been appropriate for the Court to intervene by way of issuing a declaration of incompatibility under section 4 of the HRA.
• Four members of the majority—Lords Sumption, Hughes, Reed and Clarke—concluded that it was inappropriate for the Court to second-guess Parliament, on the ground that Parliament’s determination of the matter was entitled to respect by the judiciary.
• However, the other three members of the majority—Lords Neuberger, Mance and Wilson—occupied an intriguing intermediate position, concluding that it would be inappropriate to issue a declaration of incompatibility at the present time, but that the inappropriateness of doing so might be eroded if Parliament were to fail to reconsider the questions raised by the case.

Against that background, the purpose of this post is to highlight and comment on three interlocking aspects of Court’s analysis, namely: the relationship between the ECHR doctrine of margin of appreciation and the domestic doctrine of deference; the application of the doctrine of deference to legislative judgment, and the distinction between adjudicative and remedial forms of deference and the related phenomenon of inter-institutional dialogue.

Distinguishing the doctrines of margin of appreciation and deference

The first point can be dealt with relatively briefly. It relates to the distinction between the Strasbourg doctrine of margin of appreciation and the domestic doctrine of deference. In R (S) v Secretary of State for Justice [2012] EWHC 1810 (Admin), Sales J appeared to equate the two doctrines, suggesting that domestic legislative or administrative action falling within the UK’s margin of appreciation would necessarily be lawful under the HRA. He reached this conclusion on the ground that the HRA renders unlawful only action that is in breach of one or more of the “Convention rights” which, according to s 1(1) of the HRA, are the rights contained in the Convention “as it has effect for the time being in relation to the United Kingdom”. It followed, said Sales J, that:

The ambit of the Convention rights is directly governed by the concept of the margin of appreciation as it falls to be applied under the ECtHR’s case law. Where the ECtHR applies the margin of appreciation so as to conclude that a state has not violated a Convention right when it acts in a particular way, the necessary corollary is that the Convention rights of the individual applicant did not extend to a right to require the state to refrain from acting in that way. Contrary to the submission of the Claimants, I do not think it is easy to separate out the content of the rights from the application of the margin of appreciation.

I have argued elsewhere that Sales J’s analysis is misconceived, not least because it dislocates the margin of appreciation from the transnational-institutional considerations that inform it. The better view is that the margin of appreciation is determinative only on an exclusionary, as distinct from an inclusionary, basis. In other words, domestic administrative or legislative action that falls outside the margin is necessarily rendered unlawful as a matter of UK law by the HRA. However, the fact that action falls within the margin cannot be determinative of its domestic lawfulness, since it may be open for a domestic court—free from the transnational-institutional constraints under which the Strasbourg Court operates—to determine that action falling within the margin is nevertheless disproportionate and so unlawful.

This analysis—which rejects Sales J’s attempt to transplant the margin of appreciation into the domestic adjudicative context—finds strong support in the Supreme Court’s decision in Nicklinson. All nine Justices concluded that the position obtaining in domestic law falls within the UK’s margin of appreciation, either because a “blanket ban” on assisting suicide falls within the margin, or because, even if a “blanket ban” falls outside the margin, prosecutorial discretion coupled with the need for the consent of the Director of Public Prosecutions to any proceedings in respect of the offence render the effective scope of the prohibition sufficiently nuanced—and sufficiently practically distinct from a “blanket ban”—to situate it within the margin.

Importantly, however, the fact that domestic law falls within the margin of appreciation was not determinative of the question whether a declaration of incompatibility could be issued under the HRA. As Lord Mance said, a measure could be “incompatible at the domestic level” while being simultaneously “compatible at the international level”, the possibility of such a disjunction arising because of the distinct lenses—respectively consisting of the margin of appreciation and the doctrine of deference—through which the Strasbourg and UK courts approach questions of proportionality. This disjunction reflects the respective functions of the margin of appreciation and the doctrine of deference, the former demarcating the international and domestic realms, the latter being concerned with the division of domestic judicial and political authority. Yet the possibility of within-margin legislation amounting to a disproportionate restriction upon a right did not mean that domestic courts should readily discover disproportionality in such circumstances. As Lord Neuberger put it:

Where the legislature has enacted a statutory provision which is within the margin of appreciation accorded to members states, it would be wrong in principle and contrary to the approach adopted in Re G [[2009] 1 AC 173], for a national court to frank the provision as a matter of course simply because it is rational. However, where the provision enacted by Parliament is both rational and within the margin of appreciation accorded by the Strasbourg court, a court in the United Kingdom would normally be very cautious before deciding that it infringes a Convention right. As Lord Mance said in Re G, the extent to which a UK court should be prepared to entertain holding that such legislation is incompatible must depend on all the circumstances, including the nature of the subject-matter, and the extent to which the legislature or judiciary could claim particular expertise or competence.

On this analysis, the Supreme Court was not prevented from considering the compatibility question by the fact that domestic law fell within the margin of appreciation.

Deference: contrasting views

Although there was unanimity that the Court was not prevented from dealing with the issue by virtue of the fact domestic law fell within the margin of appreciation, this conclusion was not exhaustive of the constitutional legitimacy of the Court’s determining the core question—concerning the proportionality of an outright prohibition on assisted suicide—raised by the court. Before addressing that core question, the nine Justices of the Supreme Court first had to decide whether—and, if so, to what extent—it was constitutionally appropriate to determine the issue, given the policy choice which Parliament had made and recorded in the impugned primary legislation. This, in turn, required them to consider the argument Parliament’s credentials as a democratic legislature, taken together with the sensitive and controversial social and moral issues at stake, made it inappropriate for the judicial branch to disturb the view at which Parliament had arrived.

The two dissenting judges, Lady Hale and Lord Kerr, were the clearest in their rejection of that argument. Lord Kerr, for instance, took the view that while judicial scrutiny of the legislative (or administrative) justification for a given measure might vary in its intensity, there was little room for “deference” as traditionally conceived:

It would be wrong, of course, not to recognise that some forms of interference may present greater challenges than others in terms of justification which depends on practical or empirical evidence. And that it may not be appropriate to insist on evidence of that nature in such instances. The need for a particular measure may not be susceptible of categorical proof. This is especially true in the realm of social policy where the choice between fiercely competing and apparently equally tenable opinions may be difficult to make. In those circumstances a more nuanced approach is warranted to the question of whether the interference is proportional. This should not be confused, however, with deference to the so-called institutional competence of the legislature. The court’s approach in these difficult areas may call for a less exacting examination of the proffered justification. But this more generous attitude is not based on the view that Parliament is better placed to make a judgment on the need for the measure than is the court or that the court should therefore regard itself as inept to conduct an assessment of the incompatibility of the measure. Rather, it reflects the reality that choices in these areas are difficult to make and that it may not be easy to prove that the right choice has been made.

Although his work is not referred to in Lord Kerr’s judgment (or elsewhere in the Supreme Court’s decision), this analysis clearly reflects the approach to proportionality and deference advocated by Professor Trevor Allan (see, e.g., “Human Rights and Judicial Review: A Critique of Due Deference” [2006] CLJ 671), who argues that questions of proportionality should be determined by courts in the light of the quality of the arguments presented, rather than by investing “deference factors”, such as institutional competence or democratic legitimacy, with any independent weight capable of sustaining otherwise-unsustainable arguments.

Deference-scepticism was not confined to the two dissentients. It is evident too in the judgments of the members of the majority who were willing to countenance—albeit not at this stage—a declaration of incompatibility. For example, Lord Neuberger acknowledged that: “It is not easy to identify in any sort of precise way the location of the boundary between the area where it is legitimate for the courts to step in and rule that a statutory provision, which is not irrational, infringes the Convention and the area where it is not.” However, he said that “the mere fact that there are moral issues involved plainly does not mean that the courts have to keep out”, and that “difficult or unpopular decisions” can sometimes be “more easily grasped by the judges than by the legislature”, bearing in mind the independence of the former and their consequent capacity to “take a more detached view”.

Yet the intermediate group of Justices willing to countenance a future declaration of incompatibility was not wholly impervious to deference-related arguments. Lord Mance, for instance, said that: “Whether a statutory prohibition is proportionate is, in my view, a question in the answering of which it may well be appropriate to give very significant weight to the judgments and choices arrived at by the legislator, particularly when dealing with primary legislation.” Lord Mance went on to say that it would be a “mistake” to approach questions of proportionality in a way that was “insensitive to considerations of institutional competence and legitimacy”, and acknowledged that when considering whether a measure is justified “on a balance of competing and often incommensurate interests, courts should recognise that there can still be wisdom and relevance” in arguments from relative institutional competence or democratic legitimacy. Yet this was not necessarily or always a knock-out argument, said Lord Mance: the primary decision-maker’s choices may be entitled to “considerable respect”, but there may be situations in which the court would be at least as well placed as a the decision-maker to determine the “intrinsic and comparative weight” to be attached to competing factors.

If the three majority Justices prepared to contemplate a future declaration of incompatibility exhibited a qualified commitment to deference, the remaining four members of the majority displayed a more full-blooded commitment to it. This is particularly apparent from Lord Sumption’s judgment, who addressed this matter in the most detail. He accepted that if, in relation to a Convention right, Parliament is faced with “only one rational choice”, then it is proper for the courts to declare incompatible any other (necessarily irrational) legislative choices. However, he continued:

Where there is more than one rational choice the question may or may not be for Parliament, depending on the nature of the issue. Is it essentially legislative in nature? Does it by its nature require a democratic mandate? The question whether relaxing or qualifying the current absolute prohibition on assisted suicide would involve unacceptable risks to vulnerable people is in my view a classic example of the kind of issue which should be decided by Parliament.

Lord Sumption grounded this view firmly in the concept of due deference, invoking considerations of both institutional competence and democratic legitimacy. As to the former, he said that

the Parliamentary process is a better way of resolving issues involving controversial and complex questions of fact arising out of moral and social dilemmas. The legislature has access to a fuller range of expert judgment and experience than forensic litigation can possibly provide. It is better able to take account of the interests of groups not represented or not sufficiently represented before the court in resolving what is surely a classic “polycentric problem”.

Considerations of democratic legitimacy also told strong against judicial intervention, said Lord Sumption, because

the issue involves a choice between two fundamental but mutually inconsistent moral values, upon which there is at present no consensus in our society. Such choices are inherently legislative in nature. The decision cannot fail to be strongly influenced by the decision-makers’ personal opinions about the moral case for assisted suicide. This is entirely appropriate if the decision-makers are those who represent the community at large. It is not appropriate for professional judges. The imposition of their personal opinions on matters of this kind would lack all constitutional legitimacy.

The line taken by Lord Sumption on these points is of a piece with views that he has set out extra-judicially about the limits of the judicial function. Lord Hughes endorsed Lord Sumption’s reasoning, saying that “in this country, with our constitutional division of responsibility between Parliament and the courts, this is very clearly a decision which falls to be made by Parliament”. Lord Reed also endorsed the notion of due deference, explicitly advocating the ascription—where appropriate—of weight to executive and legislative judgement:

[T]he Human Rights Act introduces a new element into our constitutional law, and entails some adjustment of the respective constitutional roles of the courts, the executive and the legislature. It does not however eliminate the differences between them: differences, for example, in relation to their composition, their expertise, their procedures, their  accountability and their legitimacy. Accordingly, it does not alter the fact that certain issues are by their nature more suitable for determination by Government or Parliament than by the courts. In so far as issues of that character are relevant to an assessment of the compatibility of executive action or legislation with Convention rights, that is something which the courts can and do properly take into account. They do so by giving weight to the determination of those issues by the primary decision-maker. There is nothing new about this point. It has often been articulated in the past by referring to a discretionary area of judgment.

These disagreements about if and when UK courts should defer to legislative (or executive) judgment are hardly novel. However, Nicklinson certainly serves as a particularly graphic illustration of the nature and scale of those disagreements.

Dialogue and remedial deference

The third, and in some ways most striking, aspect of Nicklison with which this post will deal concerns relief. As noted above, Lords Neuberger, Mance and Wilson took the view that while a declaration of incompatibility should not be issued in the present proceedings, such relief might at some point in the future be appropriate if the law were not to be changed by Parliament. In this way, although the three Justices concerned exhibited only a qualified commitment to what might be termed adjudicative deference (that is, deference in the course of resolving the proportionality question), their relatively interventionist approach was counterbalanced somewhat by means of remedial deference.

Lord Neuberger sought to justify this remedial deference in the following way:

First, the question whether the provisions of section 2 should be modified raises a difficult, controversial and sensitive issue, with moral and religious dimensions, which undoubtedly justifies a relatively cautious approach from the courts. Secondly, this is not a case like Re G where the incompatibility is simple to identify and simple to cure: whether, and if so how, to amend section 2 would require much anxious consideration from the legislature; this also suggests that the courts should, as it were, take matters relatively slowly. Thirdly, section 2 has, as mentioned above, been considered on a number of occasions in Parliament, and it is currently due to be debated in the House of Lords in the near future; so this is a case where the legislature is and has been actively considering the issue. Fourthly, less than thirteen years ago, the House of Lords in Pretty v DPP gave Parliament to understand that a declaration of incompatibility in relation to section 2 would be inappropriate, a view reinforced by the conclusions reached by the Divisional Court and the Court of Appeal in this case: a declaration of incompatibility on this appeal would represent an unheralded volte-face.

Lord Mance associated himself with Lord Neuberger’s reasoning on this point, adding an explicitly dialogic justification on the ground that (quoting Renquist CJ in Washington v Glucksberg 521 US 702 (1997)) there is currently “an earnest and profound debate about the morality, legality, and practicality of …. assisted suicide” and “[o]ur holding permits this debate to continue, as it should in a democratic society”. The notion of dialogue was also invoked by Lord Wilson, who wrote positively of enabling Parliament and the courts “to collaborate … in the amendment of the statutory provision which is discovered to have overridden human rights”. However, Lord Wilson went on to say that such dialogue would be fully meaningful only if the court goes beyond identifying the reasons for the infringement by articulating “options for its elimination”. In that spirit, Lord Wilson suggested that Parliament might consider an exception to the offence of assisting suicide in circumstances in which the High Court was satisfied that the person’s wish to commit suicide was “voluntary, clear, settled and informed”. He then listed no fewer than 18 factors (from which Lord Neuberger distanced himself, thinking this premature) that the High Court might wish to consider before deciding whether it could be so satisfied.

The position occupied by Lords Neuberger, Mance and Wilson is an uncomfortable one. The reasons that underpin their remedial deference do not sit entirely easily together. This is particularly apparent from Lord Neuberger’s judgment. The second, third and fourth of the reasons given by Lord Neuberger in the excerpt above appear to reduce to a pragmatic imperative that the courts should not do something that might bounce Parliament into a hasty response. In contrast, the first reason relies upon the sensitive and controversial nature of the issues at stake. This analysis is open to two potential objections.

First, to the extent that remedial deference is animated by concerns about the morally sensitive and complex nature of the issues that are at stake, it is difficult to see why such concerns should merely delay—rather than tell against—judicial intervention. Indeed, the concerns relevant to Lord Neuberger’s first reason for remedial deference are factors that are traditionally thought to invite adjudicative deference. If the issues at stake are as controversial and sensitive as Lord Neuberger supposes, then it is not immediately clear why this invites a stay of execution in respect of the offending legislation, rather than caution on the Court’s part when determining whether, in the first place, the legislation is incompatible.

Second, and more generally, it is arguable that the other concerns which informed the remedial deference advocated by Lords Neuberger, Mance and Wilson are in fact already accommodated by the inherently deferential nature of the declaration of incompatibility as a remedial device. As is well-known, and as is apparent from the nomenclature, a declaration of incompatibility does not affect the validity or enforceability of the impugned measure, and does not place Parliament under any domestic legal obligation to repeal or amend it. In this way, the declaration is a necessarily dialogic and deferential remedy, since it gives the final word to the legislature. Moreover, in contrast to systems that allocate the final word to legislators by permitting legislative override of judicial invalidation, the HRA secures a different allocation of the burden of inertia by enabling the incompatible provision to remain in force unless and until it is amended or repealed. It is therefore curious, to say the least, to find Lord Wilson invoking notions of collaboration and dialogue in order to justify refusing to issue a remedy that is collaborative and dialogic at its core.

This point applies with particular force in the light of the Supreme Court’s unanimous view that the impugned provision falls within the UK’s margin of appreciation. In many instances, declarations of incompatibility are invested with a degree of potency by virtue of the fact that they foreshadow the likely outcome of litigation in Strasbourg. Measures that are declared incompatible by the UK Supreme Court and which fall outside the margin of appreciation are very likely to be the subject of an adverse ruling by the ECtHR, at which point the UK becomes obliged, as a matter of international law, to amend or repeal the offending provision. In contrast, when, as in this case, the Supreme Court determines that the measure is within the margin but incompatible viewed through a domestic lens, the resulting declaration of incompatibility is shorn of the anticipatory legal force it often enjoys. The upshot is that in circumstances such as those obtaining in Nicklinson, the argument that a declaration of incompatibility should be withheld so as to preserve legislative discretion is particularly hard to sustain.

Concluding thoughts

The Nicklinson case reveals very significant and entrenched divisions within the Supreme Court about judicial review of legislation in cases that raise sensitive ethical and moral questions. In turn, those divisions reflect deeper disagreements about the respective roles of the legislature and the judiciary and about how those two branches should relate to one another. To some extent, these disagreements are overlaid with, or viewed through the prism of, the HRA, at least as far as the more-interventionist judges are concerned. For instance, Lord Mance—echoing the position adopted by Lord Bingham in the Belmarsh case [2005] AC 68—pointed out that, through the HRA, “Parliament has assigned to the courts a constitutional role of balancing the relevant interests”. However, while specific arguments about the courts’ role under the HRA are clearly germane, it is equally clear that what is really at stake here is a debate concerning fundamentally different and infinitely contestable visions of our underlying constitutional architecture. That Nicklinson does not resolve these issues is therefore entirely unsurprising. The case is, however, a canvas upon which these disagreements are project with unusual candour. For that reason, among others, it is likely to become a reference point within the enduring debate about the division of constitutional authority between the judicial and political organs of government.