The Nicklinson and Lamb v UK decision (16 July 2015)

The Court (sitting as a Chamber) declared this application inadmissible on the above date. The domestic case attracted great interest because it concerned the euthanasia issue (in fact, assisted dying). For constitutional lawyers the positions adopted by various of the UK Supreme Court judges under the Human Rights Act regime was of considerable interest, and this was at the heart of the Strasbourg decision.

This brief comment deals solely with the Nicklinson application. Arguably, the Court demonstrated its unwillingness to extend Article 8 law in a way that would, on the facts, require the domestic courts to challenge an Act of Parliament (here section 2(1) of the Suicide Act 1961). In particular, the Court refused to envisage that its jurisprudence on Article 8 should impose on the domestic courts an obligation to pronounce upon the merits of what was at stake in Nicklinson – the legality of the UK’s blanket ban in assisted dying, which was enshrined in section 2(1) of the 1961 Act – to a greater extent than the UKSC had under its understanding of the HRA regime (in Strasbourg words, it would not forced upon the domestic courts ‘an institutional role not envisaged by the domestic constitutional order’ – see below).

Seen another way, the judgment evidenced Strasbourg’s respect for the internal distribution of powers and decision-making process (on the issue at stake) within the UK (as it put it, ‘Parliament’s discretion to legislate as it sees fit in… [an] area’ that was within the UK’s margin of appreciation).

The decision may also be notable for the Court’s statement (see below) that ‘when [it] concludes in any given case that an impugned legislative provision falls within the margin of appreciation, it will often be the case that the Court is, essentially, referring to Parliament’s discretion to legislate as it sees fit in that particular area’.

Background (the UKSC judgment of 2014)

The stances adopted in respect of the HRA by the respective UKSC justices (2014)  form an important background to the subsequent (16 July 2015) Strasbourg inadmissibility decision, so we need to comment on this first.

The Strasbourg Court provides a summary of the UKSC judgment of 2014 (see paras 31-57 of its recent decision).

In essence, the domestic case involved an Article 8 challenge to the UK’s blanket ban on assisted suicide (a ban which was enshrined in legislation). The nine UKSC Justices were unanimous that the compatibility of UK law with Article 8 was an issue that the UK national authorities were capable of resolving under the HRA, in that it was a matter that Strasbourg would consider to the within the margin of appreciation Article 8 and the Convention left to the UK (in other words, the latter did not preclude the UK courts from addressing the matter under Article 8 in the domestic context – a significant finding in itself as regards how the HRA regime of protection should operate).

As such, questions arose as to how the Article 8 matter might be dealt with in that domestic context and the ‘remedy’ that may or may not be afforded under the HRA (e.g. S4 declaration of incompatibility?) in respect of the blanket ban that the relevant legislation imposed. The matter was complex:  see the summary of the various positions adopted by the UKSC Justices at paras 27-29 of the Strasbourg decision. In essence,

– a majority of five Justices (of the nine) held that the UKSC could make a declaration of incompatibility under S 4 HRA that the blanket ban was incompatible with Article 8

– of those five, three declined to grant a declaration of incompatibility, whilst two would have done so.

So no declaration of incompatibility was issued, although the thrust of the judgment otherwise was to the effect that many of the Justices had concerns about the appropriateness of the ban as it existed in UK.

Off to Strasbourg – the Article 8 application

After this lack of success at the domestic level (in that the law being challenged remained in place), Nicklinson applied to Strasbourg. The application was based on a technical aspect of Article 8.

The contention was that there had been a violation of that Article because, in the result, the UKSC had not determined the compatibility of UK law (the blanket ban on assisted suicide) with that Article. To that extent the application rested on the argument that Article 8 required such a determination, it being claimed that it did, given the judgment in Koch v Germany (19 July 2012).

In that case the Court had derived a ‘procedural’ aspect to Article 8. It had held that there had been a violation of Article 8 as the German courts had refused to examine the merits of an application made by a husband whose wife had just committed suicide in Switzerland after having attempted unsuccessfully to obtain authorisation to purchase a lethal substance in Germany.

The Strasbourg decision

The Court dismissed the application as manifestly ill-founded, refusing to extend the procedural aspect of Article 8 (the Koch requirement regarding the need for an examination of the merits of the claim) to the case before it. The fact tat the UK ban was enshrined in legislation seemed crucial to this.

As the Court noted, there was a ‘fundamental problem’ with extending Article 8 procedural protection in the way requested, in essence because the UK ban was enshrined in primary legislation (para 84). It stated:

The Contracting States are generally free to determine which of the three branches of government should be responsible for taking policy and legislative decisions which fall within their margin of appreciation and it is not for this Court to involve itself in their internal constitutional arrangements. However, when this Court concludes in any given case that an impugned legislative provision falls within the margin of appreciation, it will often be the case that the Court is, essentially, referring to Parliament’s discretion to legislate as it sees fit in that particular area (emphasis added).

Reference was then made to the legislative choice adopted by the UK Parliament. It had enacted:

section 2(1) of the 1961 Act, a provision that has been reconsidered several times by Parliament in recent years, having been re-enacted in 2009, with slightly different language, in the Coroners and Justice Act (see paragraphs 58-59 and 65-72 above).

In the circumstances, then, the Court noted that:

If the domestic courts were to be required to give a judgment on the merits of such a complaint this could have the effect of forcing upon them an institutional role not envisaged by the domestic constitutional order (emphasis added).

And the Court added:

Further, it would be odd to deny domestic courts charged with examining the compatibility of primary legislation with the Convention the possibility of concluding, like this Court, that Parliament is best placed to take a decision on the issue in question in light of the sensitive issues, notably ethical, philosophical and social, which arise.

After making these points, the Court also stated that it was satisfied that most UKSC Justices had addressed ‘the substance of the first applicant’s claim’ (para 85).

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