By Robert Clarke of Alliance Defending Freedom

The United Kingdom’s Supreme Court handed down a landmark decision at the end of June concerning assisted suicide. In R (Nicklinson & Anor) v. Ministry of JusticeR (AM) v. DPP, the court ruled that Britain’s law, which criminalizes assisted suicide, should not be declared incompatible with the European Convention on Human Rights. This joint case related to three severely disabled men who want or wanted to commit suicide.

In R (Nicklinson & Anor) v. Ministry of Justice, Tony Nicklinson (who died during the proceedings and whose case was continued by his widow) and Paul Lamb argued that the law should permit them to have help ending their lives. Although committing suicide is not a crime in the United Kingdom, assisting with the suicide of another person is under Section 2 of the Suicide Act 1961. This case was heard alongside another case involving a disabled man known as “Martin,” who wanted clarification from the Director of Public Prosecutions (DPP) on whether health professionals such as a nurse, doctor or caregiver, would be prosecuted if they assisted with his suicide. Up until this point, the DPP’s policy only pertained to family members who helped a loved one die.

Nicklinson and Lamb based their case on Section 4 of the Human Rights Act 1998 which allows a senior court within the United Kingdom to declare a piece of legislation incompatible with a Convention right. They argued that the offence of assisting someone commit suicide should be declared incompatible with the right to respect their own private lives under the European Convention since this includes the right to die in a way, and at a time, of a person’s choosing. This was crucial for them since neither man was physically able to take his own life and needed assistance from another person to do so.  

R (Nicklinson & Anor) v. Ministry of JusticeR (AM) v. DPP failed at the High Court, but Martin did succeed at the Court of Appeal which ruled DPP’s policy required further clarification. Although the Supreme Court rejected the claims of all three men, many who support the legalization of assisted suicide described this as a “substantial success” since five justices did not declare the statute incompatible with Article 8, which protects an individual’s “private and family life,” but instead gave Parliament the opportunity to consider changing the law. The court made it clear that it expects this to be done “in the near future” and that a declaration of incompatibility may follow parliamentary inaction.

The justices also went even further by suggesting how the law could be framed – notably saying that it would be unsatisfactory to limit it to only those who were terminally ill.

Lord Neuberger said that less than 13 years ago, the House of Lords ruled in Pretty v. DPP that a declaration of incompatibility in relation to Section 2 would be inappropriate, a view reinforced by the Divisional Court and the Court of Appeal. He believes that to now rule for a declaration of incompatibility would represent “an unheralded volte-face.”

Yet this unprecedented turnaround is exactly what this judgment represents.

This current case comes 13 years after a leading judgment from Britain’s highest court on assisted suicide in Pretty v. DPP. In this case, Dianne Pretty suffered from a progressive degenerative illness affecting her motor neurons. She was believed to have only a short time to live, but was mentally alert and wished to die at a time of her choosing. However, she was unable to take the necessary steps herself and sought assurances from the DPP that her husband would not be prosecuted for assisting in her death. After the DPP refused to grant this assurance, Pretty challenged the decision in court, claiming that Section 2 of the Suicide Act is incompatible with the European Convention on Human Rights. 

But the court denied the declaration sought. Lord Bingham stated that “[the court] is not a legislative body. Nor is it entitled or fitted to act as a moral or ethical arbiter. It is important to emphasize the nature and limits of the committee's role, since the wider issues raised by this appeal are the subject of profound and fully justified concern to very many people.”

Lord Bingham believed Article 8 was not in play but understood why interference could be seen as justifiable. He reasoned that “it is not hard to imagine that an elderly person, in the absence of any pressure, might opt for a premature end to life if that were available, not from a desire to die or a willingness to stop living, but from a desire to stop being a burden to others…” But even recognizing the “heavy burden” required to justify such an infringement, “ample grounds” had been demonstrated to support the law making assisted suicide an offence.

This decision was upheld by the European Court at Strasbourg which concluded that because laws preventing assisted suicide are designed to safeguard life by protecting the weak and vulnerable--especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life-- the law is necessary to protect life.

Individuals suffering from terminal illnesses deserve compassion and care. But laws should be based on common sense, not misguided feelings. Baroness Campbell, a member of the United Kingdom’s House of Lords, who suffers from a degenerative condition called Type 1 spinal muscular atrophy, strongly opposes any softening of assisted suicide laws. She recognizes, as argued in Pretty v DPP, that laws are not made for a particular situation, but “for men in general,” and that “to permit a law to be modified at discretion is to leave the community without law. It is to withdraw the direction of that public wisdom by which the deficiencies of private understanding are to be supplied.”

The United Kingdom should heed Baroness Campbell’s wise words and let those suffering die with dignity and not meet a premature death.

-Robert Clarke is litigation staff counsel with Alliance Defending Freedom in Vienna, Austria.

Alliance Defending Freedom is an international, alliance-building legal organization that advocates for religious freedom, the sanctity of life, and marriage and the family in numerous courts and consultative bodies worldwide.