Dying with Assistance: The Call for an Inquiry, the Power of a declaration, the role of evidence

ABSTRACT

The article analyses recent legal challenges of the prohibition of assisted suicide in England and Wales to review where we are in the debate for reform, and where we can go. The article, principally, advocates for an evidence-based new governmental inquiry. Aside the fact that this is widely-supported by various interested parties, this argument stems from the approach recently attempted by claimants in English courts in challenging the prohibition of assisted suicide, and that is, an evidence-based approach to judicial review. As this article discusses, the review of ‘the available evidence’ is unlikely to be done by English courts, but what this new legal strategy does is to send a strong message to Parliament and the government that there is a need to identify and examine the evidence. The findings of a fresh governmental inquiry, will allow Parliament to engage in a careful, informed review of the law and practice on assisted suicide and decide whether there is another way to protect the vulnerable, while respecting individual choice. The benefits of this inquiry go beyond England and Wales; an English (or indeed UK-wide) inquiry will inform discussions currently taking place elsewhere, and vice versa.

I. INTRODUCTION

Those of us who attempt to retain control over periods of incapacity and decline by means of available control mechanisms,¹ have reflected, at least at some point in our lives, on one of these mechanisms - assisted suicide.² In England and Wales, this is prohibited by section 2(1) of the Suicide Act 1961 (hereafter, the prohibition or section 2(1)).³ Several statutory attempts failed to lead to reform,⁴ and legal challenges of the prohibition have reached the highest courts on multiple occasions. The article focuses on these legal challenges, what they tell us about assisted suicide in England and Wales today, and what they may mean for the future.

Significant developments have taken place since 1961 and as a result of legal challenges of the prohibition. To date, however, section 2(1) remains in place. Individuals continue to travel to Switzerland to receive assistance with dying,⁵ some are forced to commit suicide alone and earlier than if regulated assisted suicide at home was permissible,⁶ others refuse food with the intention of dying,⁷ or engage in dangerous, unregulated practices with the same intention.⁸ Calls for reform have proved not led to change in England, and respective governments have failed to appreciate that assisted suicide takes place anyway and away from the safety and transparency a legal framework can offer. Other jurisdictions have responded more promptly to calls for change in the law on assisted dying.⁹ One example is Canada, which has played a key role in how recent legal challenges in England have taken shape. In Section II I provide a brief overview of the factual and legal context of the Carter litigation, which led to law reform in Canada, and from Section III, the article begins to tell the story of how claimants and the judiciary in England have been influenced by the decision in Carter. The role of evidence, and specifically ‘primary evidence’, is key to these legal challenges and is a clear sign of the Carter-effect.¹⁰ Primary evidence is first-hand evidence, which in the context may include data on how the law works domestically and data on how it works abroad. I call this ‘the available evidence’. In Section III, Nicklinson is discussed, as this was the first case in England that discussed the potential role primary evidence can have in assessing the compatibility of the prohibition with human rights legislation.¹¹ A majority in Nicklinson was openly critical of the law and practice on assisted suicide, with two dissenting judgments, for the first time, supporting a declaration of incompatibility (section 4(2) of the Human Rights Act 1998 (HRA)) with Article 8 of the European Convention of Human Rights (ECHR), the right to private and family life.

Section IV continues to review how post-Nicklinson case law has responded to the ground-breaking judgment of the United Kingdom Supreme Court (UKSC) in 2014. In one sense, the next legal challenge, Conway,¹² took the debate some steps back compared to Nicklinson, especially if one considers the widening of the government’s justification for the prohibition, and the quick dismissal for an appeal to the UKSC. On a different level, Conway positively established that courts have the jurisdiction to consider the compatibility of section 2(1), even if Parliament has already expressed an opinion on that matter. This was not as clear in Nicklinson, and will allow judges in the future to deal with the substantive matters in question, rather than with matters of jurisdiction. It is also encouraging that the High Court (HC) in Conway engaged in a compatibility assessment of Article 8, for the first time since the dissenting judgments in Nicklinson. Another positive element of Conway was that the Court of Appeal (CA) relied on some speeches in Nicklinson to note that, although the evidence in Conway was more extensive, it was still not ‘primary evidence’.¹³ But why is this important?

It is important because T¹⁴ and Newby¹⁵ relied on this CA comment in Conway, and on the discussion of primary evidence and its role in Nicklinson to ask the HC to permit the use of primary evidence with cross-examination. The two cases are discussed in Section V. In that section I advocate for more involvement by the judiciary, and note what this new approach to the legal challenge of the prohibition signifies. Although this request was rejected by the HC as unnecessary, I argue that it is a message to Parliament that ‘the available evidence’ must be identified and examined by Parliament. A positive reading of all these judgments may even show a subtle message from the judiciary itself to Parliament to this effect.

I argue that this re-assessment by Parliament should take the form of a fresh governmental inquiry. This must include, as a minimum, a review of domestic practice (to include a comparison of prosecutions under section 2(1) and the numbers travelling to Dignitas, data and impact of police investigations, number of suicides by terminally ill patients, a review of unregulated and dangerous alternative practices and their impact on those concerned), as well as regulation abroad (especially in relation to eligibility standards, and legal and procedural safeguards). An inquiry by the UK government will be instructive for other jurisdictions currently having these discussions,¹⁶ while discussions and inquiries in other jurisdictions will equally be instructive on any domestic inquiries.¹⁷

Although the power of English courts is limited compared to the power of the Supreme Court of Canada (SCC) to strike down legislation as it happened in Carter, English courts still have a key role to play in ensuring that the rights of individuals and society are equally considered. Although, as it is argued later, it is highly unlikely that an English court will allow primary evidence to be heard alongside cross-examination, a compatibility assessment and a declaration do not need primary evidence, as evident by the dissenting judgments in Nicklinson, and by Conway. The message for reform from the courts by means of a declaration is crucial to demonstrate that it is possible to create a framework that will ensure that the concerns of the government are met, while individual choice is respected. The urgency of reform is highlighted time and again with every new legal challenge that reaches the courts, with every new Bill in Parliament, and with every media report on another assisted suicide abroad. The judiciary, the Parliament, the government all have a role to play and can no longer ignore the evidence.

II. CARTER

The SCC in Carter struck down those provisions of the Criminal Code¹⁸ prohibiting physician-assisted dying for competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition.¹⁹ In an unanimous judgment on 6 February 2016, the SCC declared the provisions void for breaching key aspects of the Canadian Charter of Rights and Freedoms of 1982 (the Charter).²⁰ The Federal Government passed legislation in response. Before Carter, Canada had seen many statutory reform attempts²¹ and legal challenges on assisted dying,²² so change was not unexpected and was the result of various factors.²³ For the SCC in 2015, the key factors were the evolving ‘legislative landscape’ in ‘permissive jurisdictions’.²⁴ Aspects of the case have influenced how the legal challenges have been presented before English courts, and how Carter was litigated also highlights the need for the UK government to organise a fresh inquiry on the law and practice on assisted suicide.

A. Carter: Factual Background

Katherine ‘Kay’ Carter was diagnosed with spinal stenosis in 2008. She expressed a wish to end her life as she did not want to live out her life lying flat in bed as an ‘ironing board’.²⁵ She could either take her own life or wait for natural death while enduring intolerable suffering. Finding neither ‘option’ satisfactory, Kay asked her daughter, Lee Carter, and her daughter’s partner, Hollis Johnson, to assist her to travel to Switzerland for an assisted death. Neither were prosecuted for assisting Kay to die in Dignitas in 2010. Gloria Taylor, another Canadian citizen, who was diagnosed with Amyotrophic Lateral Sclerosis (‘ALS’) in 2009 did not have the means to die in Switzerland. Gloria feared dependency on others and days ‘wracked with pain’, which she described as assaults to her privacy, dignity, and self-esteem.²⁶ Her ‘options’ were to either prematurely take her own life, or live dependent on others and in pain. She challenged the constitutionality of section 14²⁷ and section 241(b)²⁸ of the Criminal Code, the Canadian prohibition of voluntary euthanasia and assisted suicide respectively,²⁹ by means of the Charter’s section 7 (the right to life, liberty, and security of the person)³⁰ and section 15 (the right to equal treatment by and under the law).³¹ Gloria was joined by Lee Carter and Hollis Johnson who thought that Kay ought to have had a physician-assisted suicide at home and not go through a stressful and expensive procedure in Switzerland.³² There were two more claimants: Dr William Shoichet, a British Columbia physician (who would be involved in physician-assisted suicide if this was regulated), and the British Columbia Civil Liberties Association.³³

B. Carter: Judicial History

In 2012, in a ground-breaking summary trial in the British Columbia Supreme Court, Smith J found in favour of Gloria Taylor.³⁴ The assessment of ‘the impressive record’ of the available evidence by the trial judge was key to her decision. The ‘record was voluminous’ and concerned end-of-life practice in Canada, and the law and practice in ‘permissive jurisdictions’.³⁵ Smith J’s judgment has been praised for its depth.³⁶

Smith J said that she was not bound by the SCC’s decision in Rodriguez,³⁷ the leading authority in Canada before Carter, so she could review the constitutionality of the provisions again because of changes in the law, and the different social and factual landscape since 1993 and Rodriguez.³⁸ Although the doctrine of stare decisis is fundamental, Smith J said that ‘respect for the law will diminish if it fails to adapt and change in response to changed circumstances’.³⁹

Thus, an assessment of the available evidence allowed the trial judge to conclude that the prohibition breached section 7 and section 15 of the Charter.⁴⁰ The prohibition was found first to engage all three aspects of section 7: life, liberty, and security of the person. The right to life was engaged insofar as the prohibition could force Gloria Taylor to take her life earlier than she otherwise would if she had access to a physician-assisted death in Canada.⁴¹ Gloria Taylor was deprived of her liberty, which encompasses ‘the right to non-interference by the state with fundamentally important and personal medical decision-making’, while on security, it was found that the prohibition restricted her control over her bodily integrity, ‘free from state interference and free from state-imposed psychological and emotional stress’.⁴² This interference was incompatible with the principles of fundamental justice (especially overbreadth and gross disproportionality), and was broader than necessary.⁴³ The trial judge found that it was possible to create a framework to achieve the same object (to protect the vulnerable), but not restrict individual rights: ‘the evidence shows that risks exist, but that they can be very largely avoided through carefully-designed, well-monitored safeguards’.⁴⁴ The Criminal Code provisions in question were therefore struck down as unconstitutional, the federal government was granted a one-year suspension of invalidity to legislate, and Gloria Taylor, the only claimant directly affected by this suspension, was granted a constitutional exemption to access assisted death in Canada. In fact, she eventually died in hospital as a result of complications from an infection.

Smith J’s judgment was overturned by the British Columbia Court of Appeal in 2013.⁴⁵ Newbury J, writing for the majority, stressed that Rodriguez still applied.⁴⁶ Sue Rodriguez, who like Gloria Taylor suffered from ALS, had challenged the constitutionality of section 241(b) by means of various Charter provisions, including section 7.⁴⁷ Nothing short of a blanket prohibition, the majority in Rodriguez held, would protect the vulnerable from abuse; there was ‘no halfway measure that could be relied upon’ to protect the vulnerable and maintain respect for human life.⁴⁸ It is noteworthy that Rodriguez was decided on a slim majority (5:4); even in 1993 Canada, four dissenting judges took a critical stance to the prohibition.⁴⁹

On 6 February 2015, the SCC published its judgment in response to Gloria Taylor’s appeal. It set aside any last doubts about the constitutionality of the prohibition. Rodriguez was overruled. The SCC unanimously (9:0) declared section 14 and section 241(b) unconstitutional.⁵⁰

The absence of any dissent in the SCC’s decision is striking. The SCC signed the judgment as ‘the Court’, sending a strong message to the Federal Government that the law needed to change. The SCC confirmed that Smith J was not bound by Rodriguez.⁵¹ Trial courts may revisit rulings of higher courts if a new legal issue is raised and where there is change in the circumstances or evidence that ‘fundamentally shifts the parameters of the debate’.⁵² Both conditions were met; the legal framework on section 7 had changed with regards to the principles of overbreadth and gross disproportionality, and there was fresh evidence on the risks associated with physician-assisted dying.⁵³ The SCC agreed with Smith J that the prohibition engaged all three aspects of section 7.⁵⁴

Finding all aspects of section 7 engaged by the prohibition, the SCC had to identify the object of the prohibition.⁵⁵ It found that this was not ‘to preserve life, whatever the circumstances’, but to protect the vulnerable from being induced to commit suicide at a time of weakness.⁵⁶ This distinction is crucial. The ‘protection of the vulnerable’ was a much narrower, practical justification compared to the preservation and protection of life used in Rodriguez. Then, in relation to ‘the principles of fundamental justice’, an interference is not justified if it is arbitrary, overbroad, and grossly disproportionate to its object. The SCC did not find the prohibition arbitrary as it achieved its object, as noted above. There was also a rational connection between the object and the restriction to life, liberty, and security of the person.⁵⁷ A blanket prohibition, the SCC said, clearly achieved this object.⁵⁸ But, crucially, the SCC found the prohibition overly broad (‘overbreadth’). While the prohibition aimed to protect the vulnerable, it also caught individuals beyond those needing protection, like Gloria Taylor, who were competent, fully informed, and free from coercion or duress.⁵⁹ The prohibition, therefore, went too far in achieving its object.

The SCC also agreed with Smith J that section 1 did not save the prohibition either. Section 1 allowed Canada to reasonably limit constitutional rights if the law had a pressing and substantial object, and the means chosen were proportional to that object.⁶⁰ Although meeting the former requirement, the prohibition was disproportionate.⁶¹ The SCC concluded, based on the evidence reviewed by Smith J, that the prohibition went beyond what was necessary to achieve its object.⁶² In other words, the blanket prohibition was not the only way to protect the vulnerable.

Ultimately, the SCC declared the prohibition invalid, but suspended the declaration of invalidity for one year to allow the federal government and the provincial legislatures time to respond.⁶³ Sections 14 and 241(b) were void and of no legal effect insofar as they prohibited physician-assisted dying for adults who consented to it and suffered intolerably by a grievous and irremediable medical condition.⁶⁴ Bill C-14 was subsequently enacted by the federal government in 2016.⁶⁵ I will now examine the impact of Carter on the legal challenges of the prohibition before English courts. I argue that, primarily, Carter serves to remind the UK Parliament and government of the need to look at ‘the available evidence’, and to reflect on whether there is another way to protect the vulnerable, while respecting individual choice.

III NICKLINSON: CHANGING JUDICIAL ATTITUDES, THE DECLARATION OF INCOMPATIBILITY, AND A FIRST LOOK AT THE ROLE OF EVIDENCE IN CHALLENGING THE PROHIBITION

The message from Canada is powerful. The prohibition of physician-assisted dying was incompatible with fundamental rights. Smith J (with whom the SCC agreed) found that, based on the available evidence, physician-assisted dying could be regulated to respect individual choice, while addressing the government’s concerns of protecting the vulnerable too. But what has been the response of English courts to the legal challenges of the domestic prohibition? What has been the engagement, so far, with the question of finding the right balance between respecting individual choice and reducing risks?

English courts have dealt with challenges to the prohibition on several occasions. In fact, the most significant developments have been judicially generated. In 2009, the House of Lords (as it then was) accepted for the first time⁶⁶ what the European Court of Human Rights (ECtHR) had held already. The prohibition in section 2(1) prima facie engages (or interferes with) Article 8(1), the right to private and family life, and, specifically, the right to control the manner and timing of one’s death.⁶⁷ The onus is thus on each member state to justify the interference in each case. It was the same legal challenge that led to the publication of an offence-specific prosecutorial policy for assisted suicide cases.⁶⁸ Though the policy does not decriminalise assisted suicide, and, indeed, creates no right to one, it does recognise the harshness of the prohibition by providing prosecutors with the means to mitigate an absolute rule.⁶⁹

In 2012, Mr Tony Nicklinson, paralysed and unable to speak following a stroke (locked-in-syndrome), picked up the task of challenging section 2(1), and, for the first time, the prohibition of voluntary euthanasia.⁷⁰ Similar to Carter, the UKSC in 2014 was called to examine the human rights compatibility of the prohibition.⁷¹ Unlike the SCC in Carter, though, it did not rule in favour of the claimants, with the majority refusing to declare section 2(1)⁷² incompatible with Article 8(1).⁷³ The nine Justices were concerned with several constitutional and institutional matters noted below.

Most of these matters are arguably uncontroversial. For instance, that the majority of the Council of Europe’s member states choose to justify the interference by means of Article 8(2) and are afforded a wide margin of appreciation in doing so.⁷⁴ The Justices in Nicklinson were also in agreement that even a blanket prohibition is not incompatible with the ECHR.⁷⁵ Relatedly, it was also not disputed that the UK can go beyond the ECtHR, similar to four other member states,⁷⁶ and regulate assisted suicide in compliance with ECHR obligations.⁷⁷ The ‘constitutional competence’ of the UKSC to assess the human rights compatibility of section 2(1) was also not strongly challenged in Nicklinson. It is crystal clear that the HRA constitutional settlement allows judges to form their own views on the compatibility of domestic legislation.⁷⁸

What was problematic in Nicklinson was the reluctance of the majority to engage in an assessment of the compatibility of section 2(1). For some, this was down to the idea of ‘usurping’ or interfering with the role of Parliament, the timing of the case, and also the lack of primary evidence which some Justices said was necessary to assess section 2(1)’s compatibility. This reluctance, I argue, is based on a misconceived idea of the power and role of section 4(2) HRA.⁷⁹ The power of senior courts to issue a declaration of incompatibility if they are satisfied that primary legislation is incompatible with a Convention right, is a power entrusted to courts by Parliament itself. This power does not ‘usurp’ its role; on the contrary, it is respectful of it. It respects the separation of powers and Parliament’s law-making responsibilities, as it directs a matter back to Parliament for review. By issuing a declaration in Nicklinson, the UKSC would have explained why it found the law incompatible and maybe made some suggestions on how assisted suicide could be safely regulated.⁸⁰ The latter exercise was, indeed, undertaken by several Justices, as seen below, but without a declaration. The power under section 4(2) is, in any case, discretionary (section 4(4)), while under section 4(6), ‘the validity, continuing operation or enforcement’ of the ‘incompatible’ provision is not affected, unlike the SCC’s power to strike down incompatible legislation. In actual fact, section 4(2)’s power is so limited that it really does not explain the reluctance of the majority to issue it, especially considering the critical stance many adopted to the current law and practice. A unique opportunity was missed in Nicklinson to send a message to Parliament that courts consider the law to be incompatible and in need of review.⁸¹

Against this backdrop, I summarise the approaches the Justices adopted to a declaration, as well as to the role evidence can or should have in the compatibility assessment. The latter was likely influenced by Smith J’s judgment in Carter two years prior. At the outset, it should be noted that Nicklinson was never intended as a case that would present primary evidence to challenge section 2(1), as T and Newby were, and also, relatedly, that a declaration is not dependent on such evidence.

A ‘hidden (5:4) majority’ argument was put forward by commentators following the UKSC’s judgment,⁸² to include the two dissenters, and Lords Neuberger, Mance and Wilson, who were openly critical towards the current law and practice, but fell short of issuing a declaration of incompatibility. The speeches of the five Justices showed clear support for reform, ‘signifying judicial unease’ with the prohibition.⁸³

Lords Neuberger, Mance, and Wilson all implied that the prohibition is incompatible with Article 8. Lord Neuberger admitted that it is unusual for a court to hold a provision (that cannot be construed accordingly to cure the incompatibility) as infringing human rights, but not declare it incompatible.⁸⁴ His Lordship talked about the grave interference with the appellants’ rights, the fairly weak connection between the aim and effect of the prohibition, and the uncompelling reasons to simply defer to Parliament.⁸⁵ The second observation speaks directly to the compatibility assessment under Article 8(2). His Lordship, however, did not substantially engage in one. This reluctance becomes even more troubling when Lord Neuberger talked about a potential framework for assisted suicide, agreeing with Lady Hale’s suggestion, at [314]–[316], of involving the HC.⁸⁶ Lord Mance also supported a system of prior review, and said that a system that does not allow individuals in the position of the appellants access to assistance may be unnecessary or disproportionate.⁸⁷ Again, these are considerations relevant to the compatibility assessment that his Lordship, as with Lord Neuberger, seem reluctant to substantially engage with. Lord Mance agreed with Lord Neuberger, at [92]–[97], that ‘assisting a suicide could be seen not only as promoting the autonomy of the person committing suicide, but also as involving a less drastic interference in life than some interferences already authorised by law, and conceivably also as enabling some people to postpone suicide’.⁸⁸ Lord Wilson agreed with the HC’s involvement⁸⁹ and went further to suggest 18 factors for the HC to investigate.⁹⁰ Though Lord Neuberger, at [118], and Lady Hale. at [321], criticised these ‘factors’, I believe that such proposals could accompany a declaration, if this was issued, to assist Parliament with its inquiry, highlighting the important contribution of the judiciary in the debate. Lord Wilson is thus absolutely right that courts can be of ‘maximum assistance’ to Parliament if suggestions are put forward, and that a declaration is a ‘unique opportunity’ for collaboration with Parliament.⁹¹ All this goes to show that the three Justices were not just unhappy with the current law and practice but actively reflected on how it can change.

Lord Neuberger also talked about Parliament’s, then, opportunity⁹² to address section 2(1), ‘in the knowledge that, if it is not satisfactorily addressed, there is a real prospect that a further, and successful, application for a declaration of incompatibility may be made’.⁹³ This ‘warning’, unclear as to whether it requires a mere review of the law or its reform, is also supported by Lord Wilson, at [197], Lord Clarke, at [292], and, in more reserved terms, by Lord Mance, at [190]. Even so, the three Justices found it ‘institutionally inappropriate’ to issue a declaration because of the difficult and sensitive nature of assisted suicide, its moral and religious dimensions required a ‘relatively’ cautious judicial approach, and the courts ought to give Parliament the opportunity to consider the matter first. Furthermore, a declaration would be ‘an unheralded volte-face’ from Pretty.⁹⁴ In that case, in 2001, the House of Lords were clear that Article 8 was not engaged or interfered with by section 2(1),⁹⁵ and that, even if it was, this was justified by the need to protect the weak and the vulnerable.⁹⁶

Lord Neuberger’s first consideration is certainly true. Assisted suicide is a difficult matter. However, the difficult and sensitive nature of certain matters has not prevented courts from developing the law, including in Bland,⁹⁷ and Re A;⁹⁸ yet, in Nicklinson the suggestion was merely the assessment of section 2(1)'s compatibility with the ECHR. In fact, Lord Neuberger noted that ‘difficult or unpopular decisions’ are sometimes ‘more easily grasped by judges than the legislature’.⁹⁹ But this is certainly not about deciding between courts or Parliament as the preferable forum to review assisted suicide. Rather, it is about both working together.

The second concern expressed is easily answered. Parliament is sovereign. There is no doubt that assisted suicide is to be decriminalised and regulated by Parliament when the time comes. But Parliament has already reviewed several Bills, all failing to include individuals in the appellants’ position. Additionally, it is questionable whether appropriate consideration to the particulars of proposed legislation can be given without sufficient parliamentary time. The ‘anxious consideration’ envisaged by Lord Neuberger in Nicklinson can only be given if government sets aside meaningful time for a debate; however, that does not mean that courts do not have a role to play as well.

The final concern by Lord Neuberger is most interesting. Issuing a declaration would indeed be a deviation from Pretty; this is to be expected. A declaration reflects the current views of the judiciary, informed by current knowledge of domestic and international practice (what one may call ‘the available evidence’). A compatibility assessment ought to reflect this current knowledge. Pretty was decided 13 years before Nicklinson, and at present, 20 years ago. There are many developments, not least abroad, but also regarding how the judiciary, parliamentarians, and professional organisations now perceive assisted suicide. In Carter, Smith J was influenced by changing factual and social facts since Rodriguez in striking down the prohibition. So, if ‘the available evidence’ has changed, the compatibility assessment ought to be ‘a deviation’ from Pretty. Overall, if the three Justices were more confident to use section 4(2), a declaration would seem inevitable considering their judgments.

Lords Sumption and Clarke took a more conservative approach, compared to Lords Neuberger, Mance and Wilson, and they would only engage in a compatibility assessment if Parliament ‘abdicated’ its responsibility to examine the matter.¹⁰⁰ The complexity of assisted suicide was again an issue, with Lord Sumption reasoning that there is a choice between moral values for which there is no consensus, while Parliament’s position is abundantly clear and the parliamentary process deemed more appropriate.¹⁰¹ Their Justices’ approach is cautious, particularly evident in Lord Sumption’s judgment where he noted that judges should not express personal opinions on matters of ‘social policy’ and ‘moral value judgment’.¹⁰² The imposition of such opinions lacks ‘all constitutional legitimacy’.¹⁰³ This misinterprets section 4(2). In fact, the majority’s reluctance to use it denied Parliament judicial assistance, such as that envisaged by the ‘hidden majority’. An optimistic reading of their Justices’ judgments may imply that they expect a debate (or an inquiry) in Parliament, but such a reading does not go as far as to place them in the ‘hidden majority’ camp.

Clearly in the most conservative of the Nicklinson judicial ‘camps’, Lords Reed and Hughes were absolutely clear that the matter was strictly for Parliament.¹⁰⁴ The controversial, morally complex, lacking consensus, social policy character of assisted suicide was the key justifications for their position. Lord Hughes commented that Parliament’s intention by enacting the 1961 Act, and updating it in 2009, was clear,¹⁰⁵ while Lord Reed said that Parliament’s procedure, expertise, accountability, and legitimacy was more appropriate to consider assisted suicide compared to the courts.¹⁰⁶ Lord Reed was clear that although courts can determine compatibility, they usually place ‘considerable weight’ on a ‘considered assessment’ by Parliament.¹⁰⁷ Elizabeth Wicks notes, with optimism, that this statement allows for judicial intervention in the absence of a ‘considered assessment’,¹⁰⁸ which is similar to the argument by Lords Sumption and Clarke. However, what ‘considered assessment’ means remains unclear. What is certain is that none of the Bills which have come before Parliament so far, would have covered the appellants, and it is highly unlikely that any such ‘expansionist’ approach would feature in future Bills. Moreover, as noted earlier, a ‘considered assessment’ is not possible without Parliament setting aside some meaningful time to consider assisted suicide, perhaps in the form of an inquiry.

Lady Hale and Lord Kerr dissented and found the prohibition incompatible with Article 8. Lady Hale said that there was ‘little to be gained, and much to be lost’ in not making a declaration,¹⁰⁹ and Lord Kerr talked about ‘the duty’ of a court ‘to say so’ if a provision is incompatible.¹¹⁰ Certainty, his Lordship continued, the exercise of this duty does not ‘usurp the role of Parliament’, as Lord Hughes, at [259], and Lord Neuberger, at [145], had noted.¹¹¹ There is ‘much to be lost’ (valuable judicial assistance), if courts are reluctant to express a view on incompatible legislation. Responding to Lords Sumption and Clarke, at [229]–[230], [293], Lady Hale said that a judicial finding of incompatibility did not mean that judges ‘impose’ their ‘personal opinion’.¹¹² Noting the misinterpretation of section 4(2) by the majority, Lady Hale said that courts do not have the power to impose anything on Parliament, what they have is jurisdiction, and sometimes an obligation to ‘form a professional opinion, as judges’ on the compatibility of domestic provisions. Lady Hale is again correct that only Parliament can make the law compatible, and so could not explain the majority’s reluctance to present Parliament with options to ‘cure’ the incompatibility.¹¹³ Similarly, Elizabeth Wicks is right to note that it was ‘misguided and unnecessary’ for the Justices to agonise over the ‘courts or Parliament’ question as the constitutional settlement in the UK promotes collaboration between them.¹¹⁴ One can only wonder why it was even necessary for the two dissenters to remind the UKSC of its judicial powers under the HRA.

The next question is how the dissenters concluded that the law is incompatible. Were they, as Smith J in Carter was, influenced by the changing factual and social facts domestically and internationally (‘the available evidence’)? I discuss the potential role primary evidence may have in the debate on assisted dying by dividing their Justices’ approach in three categories. In the first category, Lady Hale found the compatibility assessment a matter of principle not evidence.¹¹⁵ The absence of primary evidence in Nicklinson was not so significant as to prevent her Ladyship from finding the law incompatible. This was an issue for Lords Neuberger, Mance and Wilson, as discussed below. Lady Hale's approach to the role of evidence in the legal challenge of the prohibition may be seen as respecting Parliament’s sovereignty, underlining that it is Parliament that is to eventually decide whether to regulate, what format the law should take, and how much risk is acceptable. This, however, did not prevent her Ladyship from suggesting a possible regulatory framework.¹¹⁶ The proposed model by Lady Hale and other Justices is to be welcomed. Along with a declaration, this is the kind of collaboration and judicial involvement envisaged in this article. Lady Hale’s approach to the compatibility assessment and Lord Kerr’s approach, discussed below, are reminders that a declaration is not dependent on primary evidence in a case.

Having said that, Lord Kerr placed more emphasis on the importance of primary evidence compared to Lady Hale (placing him in the second category on his own). Even so, he was not so concerned as the Justices in the third category, and was comfortable to engage in the compatibility assessment and declare the law incompatible on the basis of evidence already available to him.¹¹⁷ Although Lord Kerr accepted the concerns of the judges in the third category, that, in Nicklinson, there was insufficient evidence to establish how a balance could be struck between the different interests, his Lordship noted that the government had not produced evidence to justify their assertion that the prohibition is the only way to protect the vulnerable, either.¹¹⁸ Lady Hale agreed that the government’s justification was as much an ‘assertion’ based on ‘solid evidence’, as the contrary assertion.¹¹⁹ Put simply, in the same way that the government argued that there are risks to the vulnerable justifying the prohibition, those that find the law incompatible, like Lady Hale and Lord Kerr, can likewise argue that there is a way to reduce this risk even without primary evidence.¹²⁰ So, both dissenters assessed section 2(1)’s compatibility by adopting different approaches to the role evidence has or should have in the judicial review of the prohibition.

In the third category, Lords Neuberger, Mance, Wilson, alongside the reasons noted earlier, claimed that they needed primary evidence to assess section 2(1)’s compatibility.¹²¹ The Justices challenged the type and quality of evidence available in Nicklinson, and, unlike the dissenters, were unwilling to engage in a compatibility assessment in the absence of stronger evidence. Lord Neuberger, for example, did not accept the appellants’ ‘heavy reliance’ on the 2012 Report of the Commission on Assisted Dying and Smith J’s analysis in Carter, as this was secondary evidence.¹²² Lord Mance agreed: it is ‘an invitation to short-cut potentially sensitive and difficult issues of fact and expertise, by relying on secondary material’.¹²³ Lord Mance could not have been clearer: it is ‘impossible’ to arrive at ‘any reliable conclusion’ ‘without detailed examination of first-hand evidence, accompanied by cross-examination’.¹²⁴ In one sense, it is sensible for Lord Mance to point out that such a difficult decision cannot be made on the basis of secondary material alone; however, it is problematic to make a declaration dependent on such evidence. His Lordship also said that a re-assessment of section 2(1)’s compatibility must be done ‘in light of fresh and significantly different evidence’.¹²⁵ Thus, Lord Mance was not only concerned about departing from precedent (Pretty) without first reviewing primary evidence, but also challenged whether there was fresh evidence justifying a re-assessment. Legislation abroad, changes in the positions adopted by medical associations, an ever-increasing number of those travelling abroad to die, are only a sample of the ‘fresh and significant evidence’ that can be reviewed and challenged in court (as primary evidence), or by means of a governmental inquiry.

Lord Neuberger also, controversially, argued that before a declaration was issued, the court needed to be confident to suggest an alternative to the prohibition. The court would ‘owe a duty, not least to Parliament’ not to grant a declaration ‘without having reached and expressed some idea of how the incompatibility could be remedied’; for instance, what ‘scheme could replace it’.¹²⁶ The court would have to be satisfied that ‘a physically and administratively feasible and robust system’ would allow assisted suicide, while addressing the government’s concerns.¹²⁷ Lord Wilson used the strictest terms to agree that evidence is a ‘pre-requisite’ to making a declaration, and his Lordship expressed the hope that a new case would start in the HC and that that court would receive ‘the focussed evidence and submissions which this court has lacked’.¹²⁸

Lord Kerr rightly disagreed with the argument of requiring an alternative before issuing a declaration: it is not necessary to come up with ‘a fully-formed, guaranteed-to-function, less intrusive’ scheme before deciding on incompatibility.¹²⁹ Elizabeth Wicks characterises this reluctance as a ‘worrying new approach to the courts’ powers under the HRA’.¹³⁰ A statutory provision cannot only be held incompatible without an alternative, but also without primary evidence, as evident by the approach of the two dissenters. This is respectful of Parliament’s sovereignty as the lawmaker. Now, if the judiciary takes a more proactive role in actively assisting Parliament by making suggestions with or without access to primary evidence, that is a different story, and a welcome scenario. Lord Wilson was absolutely right in this regard, that a declaration is a ‘unique opportunity’ for courts to collaborate with Parliament and be of ‘maximum assistance’.¹³¹

Summarising the discussion on the role of evidence in Nicklinson, Lady Hale was right that judges can engage in a compatibility assessment without primary evidence. Lords Neuberger, Mance and Wilson adopted a more careful approach. While they correctly noted the importance of such evidence, it was wrong to make the declaration dependent on this. It is argued that this, alongside the misconceived idea of the power and role of section 4(2), prevented the ‘hidden majority’ from becoming the majority that could have issued a declaration, bypassing a unique opportunity to send a strong message to Parliament. All in all, Lord Kerr’s approach, which recognised the limitations of the evidence in Nicklinson but supported a declaration nonetheless, seems to be the most sensible one. It recognised the importance of considering primary evidence, without making a declaration contingent on its existence.

An additional problem remains with regards to how primary evidence is perceived in these legal challenges. As Stevie Martin has identified, the problem is the inappropriate burden indirectly placed on claimants to gather such evidence to challenge the government’s justification.¹³² The onus is on the government to justify any interference. This has influenced how post-Nicklinson cases have been presented before the courts. The focus of the legal challenges is now on the potential use of primary evidence to challenge the prohibition. This fact-finding exercise is, however, expensive, time-consuming, and undertaken by the appellants and not courts, in a desperate attempt to get judges’ attention (and assistance).

IV. A FIRST STEP TOWARDS AN EVIDENCE-BASED COMPATIBILITY ASSESSMENT, A STEP BACK FOR THE ‘LEGITIMATE AIMS’ FOR THE PROHIBITION: CONWAY

Notwithstanding the unsuccessful outcome for the claimants in Nicklinson, the case allowed others to rely on it to support their own legal challenge of the prohibition. In this section, I discuss the reasoning of judges in Conway, highlighting the expansion of the ‘legitimate aims’ used to justify the prohibition and the role of evidence, and noting that a compatibility assessment was actually carried out by the HC.¹³³

Mr Noel Conway lived with motor neurone disease; when he had six months or less to live he wished to receive medical assistance in ending his life.¹³⁴ Like Mr Nicklinson, he asked for a declaration that section 2(1) was incompatible with Article 8, and proposed an alternative statutory scheme to cover individuals in his situation.¹³⁵ In October 2017, the HC unanimously dismissed his claim. The interference with Article 8 was found to be justifiable not only for the justification confirmed in Nicklinson, to protect the vulnerable, but also to respect the sanctity of life and to promote trust between doctors and patients.¹³⁶

This is a worrying expansion of the legitimate aims for the prohibition. On the sanctity of life, this is a return to the judicial reasoning in Pretty that reflected morals and values of a different time.¹³⁷ As can be recalled, in Nicklinson, some Justices referred to the morally and ethically complex character of assisted suicide, yet none directly used the sanctity of life as a ‘legitimate aim’ justifying the interference.¹³⁸ The addition of this obstinate principle as a ‘legitimate aim’ is a step back for the debate.

There is also something to be said about the language shifting back to that used in Pretty in the context of the sanctity of life principle. A shifting, but not re-shifting as in Conway, in language is also noted in Canada if one compares the SCC decisions in Rodriguez and Carter.¹³⁹ In Rodriguez, the prohibition was deemed necessary to protect the vulnerable and to preserve the value of life.¹⁴⁰ The sanctity of life principle was extensively used in Rodriguez; for example, the guiding principle for society’s approach to assisted suicide ‘had always been, and continued to be, the sanctity of life’,¹⁴¹ and ‘the generally held and deeply rooted belief in our society that human life is sacred or inviolable’.¹⁴² Onwards to 2015, the SCC in Carter noted that ‘[Sopinka J’s] in Rodriguez remarks about the “preservation of life” are best understood as a reference to an animating social value rather than as a description of the specific object of the prohibition’.¹⁴³ What does this show? In Carter, the SCC focused on a narrower justification for the prohibition compared to Rodriguez.¹⁴⁴ The government, the SCC in Carter said, considers the object of the prohibition to be the preservation of life ‘whatever the circumstances’; yet this formulation ‘goes beyond the ambit of the provision itself’, the direct target of which ‘is the narrow goal of preventing vulnerable persons from being induced to commit suicide at a time of weakness’.¹⁴⁵ It is this narrow justification that Smith J in Carter found could be replaced with a system that was less restrictive of individual rights, and it is the expansion of the justifications in Conway beyond the protection of the vulnerable that reveals that the judicial reasoning in Conway is conservative.

Conway also introduced a second new justification for the prohibition: the impact legalisation may have for the trust between doctors and patients. Although a narrower justification compared to the sanctity of life, it does not immediately fall under any of Article 8(2)’s ‘legitimate aims’. Chahal QC, leading most of these legal challenges, writes that there is no legal basis for ‘importing this consideration and elevating it into a ground’, and characterised this move as ‘a new and unwarranted intervention by the court’.¹⁴⁶ It is a worrying expansion of the justifications aiming to keep in place a human-rights-interfering provision, although, unlike the sanctity of life, its basis can be investigated, and possibly refuted, based on evidence before the courts and/or Parliament. For instance, primary evidence before the courts, or a governmental inquiry, could look into the impact decriminalisation and regulation may have for healthcare professionals and their relationship with their patients.¹⁴⁷

Conway thus reveals a conservative approach by the government but also by the judiciary, that may well be a response to a progressive, ‘activist’ UKSC in Nicklinson.¹⁴⁸ The HC in Conway found the rational connection between section 2(1) and its legitimate aims clear, the interference was ‘necessary in a democratic society’ and proportionate to protect the vulnerable, the case was even ‘stronger when the other legitimate aims are brought into account’, and the balance between individual and community interests was fair.¹⁴⁹ The HC emphasised that Parliament found the prohibition justified, necessary and proportionate, and that, in any case, Parliament was the more appropriate forum to decide on this matter.¹⁵⁰ This sentiment was also echoed in the CA decision.¹⁵¹ Even so, the HC’s compatibility exercise was refreshing and one of the positive aspects of Conway.

Several matters influenced the outcome of the HC’s compatibility assessment. In this article, some of these are challenged as being untested and requiring further investigation before being used to conclude that the law is compatible. The HC, for instance, rejected Mr Conway’s proposed scheme as inadequate to protect the vulnerable.¹⁵² The scheme, amongst other things, proposed a judicial safeguard - a safeguard first suggested by Justices in Nicklinson. The HC placed considerable emphasis on Lord Sumption’s speech in Nicklinson in dismissing the judicial safeguard.¹⁵³ This, unfortunately, does not accurately represent his Lordship’s sentiments. Lord Sumption did not actually reject the judicial safeguard, what he noted was that the matter had not been considered in detail in Nicklinson. This was the case in Conway too, and the HC rejected this safeguard as inadequate without further investigation. The safeguard is certainly one for further review by Parliament as it has featured in recent Bills, and is likely to be seen in future versions too.

Another matter that influenced the HC’s compatibility assessment was that Mr Conway could legally ask for the withdrawal of his non-invasive ventilation in bringing about his death instead.¹⁵⁴ This ‘not so very bleak’ option was something that Mr Conway himself found to be undignified and distressing,¹⁵⁵ but what he eventually was forced to do.¹⁵⁶ A governmental inquiry could provide a holistic image of what patients themselves consider to be appropriate, human-rights respecting options, as well as exploring their needs and worries.

The last governmental inquiry on assisted suicide was in 2005,¹⁵⁷ and the last ‘substantive’ discussion in the context of proposed legislation in Parliament was in 2015 at Committee stage and lasted only two days.¹⁵⁸ It was the first time that such a Bill¹⁵⁹ proceeded beyond the Second Reading, yet it is questionable whether any proposal can be given sufficient attention without being given appropriate governmental time.¹⁶⁰ There are significant developments and new evidence is available that must also be considered in an inquiry, and by courts.

The HC’s judgment in Conway reveals, yet again, a misconceived idea of the role and power of section 4(2), and this is a narrative present in all these cases preventing judges from making their own assessments of compatibility. It is certainly open to discussion whether anything has actually been decided by Parliament considering the limited time spent in reviewing some of these proposals.

In June 2018, the CA, expressing ‘deep sympathy’ and ‘profound respect for the dignified and resolute way’ with which Mr Conway has been dealing with his disease, agreed with the HC.¹⁶¹ In November 2018, Lady Hale, Lords Reed and Kerr found the prospects of success low to grant an appeal to the UKSC.¹⁶² It is disappointing that two of the three Justices sitting in that case were the Nicklinson dissenters. The Justices said that the matter was of ‘transcendent public importance’ and noted that their decision was made with ‘some reluctance’.¹⁶³

The litigation was unhelpful for Mr Conway. It was a sad reminder of the judicial approach to section 4(2) and an expansion of the reasons used by the government to justify the prohibition. In many ways, Conway was a significant blow for the debate on assisted suicide. Yet, it is also positive for two key reasons. First, the HC carried out a fresh compatibility assessment - the last one carried out by the dissenters in Nicklinson. It allowed judges to consider whether there was another way to strike the right balance between individual and societal interests. Moreover, the HC (the CA agreeing at [179]) accepted that courts have the jurisdiction to consider section 2(1)’s compatibility with the ECHR.¹⁶⁴ As I have already noted, judges can in the future, hopefully, deal with the substantive questions, without much concern about institutional competency matters. On this, the HC described the halting of the compatibility assessment in Nicklinson as an ‘unusual course of postponement’.¹⁶⁵ It is troubling that a lower court had to remind the UKSC of the courts’ role to ‘protect the rule of law’, by deciding a ‘properly arguable claim’ before it, irrespective of Parliament’s activity.¹⁶⁶

Conway is also significant because the evidence used in the case was more extensive than in Nicklinson, partly addressing concerns expressed in the latter case.¹⁶⁷ Even so, the CA in Conway acknowledged that the evidence in the HC was ‘necessarily limited’ to what each party sought to rely on, and that matters were made more difficult by the court’s limited power to conduct any independent consultations ‘on its own account’.¹⁶⁸ So, although the evidence used was more extensive than Nicklinson, this ‘necessarily limited’ evidence left issues untested; for instance, the judicial safeguard. On this particular safeguard, Stevie Martin has argued that the HC dismissed it on ‘speculations’.¹⁶⁹ Indeed, neither Nicklinson, nor Conway fully explored the option.

The court in Conway did, to some extent, respond to the concerns of Lord Kerr and, to a greater extent, those of Lords Neuberger, Mance and Wilson, by drawing on a more extensive set of evidence, and this was, perhaps, what encouraged the HC to engage in a compatibility assessment. Conway is a stepping stone between Nicklinson and cases like T and Newby,¹⁷⁰ which attempted to introduce primary evidence in challenging the prohibition. An inquiry is, however, still preferred because it will alleviate the financial burden on claimants and also save them precious time. A fact-finding exercise is not claimants’ responsibility but that of the government seeking to justify the interference with Article 8. An inquiry is more likely to represent the views of society as a whole, by ensuring that all groups are represented and that all directly concerned parties have their views heard. With regards to what the courts can do, as exemplified by the two dissenters in Nicklinson and confirmed by the HC in Conway,¹⁷¹ a compatibility assessment does not require evidence. Any judge that considers that the prohibition to be incompatible with the ECHR should not be hesitant to issue a declaration; thereby, offering precious assistance to Parliament in considering law reform.

V. AN EVIDENCE-BASED APPROACH FOR OMID T AND PHIL NEWBY

Post-Conway, the legal challenges of the prohibition have attempted a rare approach to judicial review by using primary, oral evidence with cross-examination. Although not approved by the courts, I argue that this strategy underlined several crucial matters. First, that claimants are now trying every possible legal tactic to attract the attention of judges and Parliament, looking at what was done and said in previous cases. The new strategy was inspired by concerns expressed in Nicklinson on the lack of primary evidence, by the CA’s comments in Conway on the limited evidence available,¹⁷² and by the decision in Carter. Crucially, the new tactic is a plea to Parliament. Before I advocate for more judicial involvement by means of section 4(2) and detail the need for an inquiry, I briefly look at the legal strategy attempted and rejected in T and in Newby.

In 2014, Mr Omid T was diagnosed with Multiple System Atrophy, a neurodegenerative (but not terminal) disease. He attempted, but failed, to commit suicide in 2015. Subsequently confined to bed in a nursing home, he needed help with almost all daily needs, his muscles and speech gradually deteriorated. He sought a declaration that section 2(1) was incompatible with Articles 8 and 2 of the ECHR.¹⁷³ It was the first time that Article 2 was used since Pretty,¹⁷⁴ except for a quick dismissal by the Divisional Court in Nicklinson.¹⁷⁵ On Article 2, Mr T, as Gloria Taylor did, argued that section 2(1) created a real risk of his life being shortened, as he would be forced to die earlier (when still physically able to travel) compared to if the option was available at home.¹⁷⁶ Sadly, this argument has not been given much attention by the courts.

Mr T argued that his case required this ‘unusual course’ of adducing primary evidence accompanied by cross-examination of the government’s witness, and the government argued that there was no valid justification for it.¹⁷⁷ In November 2017, the HC decided that this ‘preliminary issue’ should be decided on a further hearing.¹⁷⁸ While the court accepted Mr T’s argument that without cross-examination it would have to rely on written, unchallenged submissions, it did not find the comparisons to Carter useful.¹⁷⁹ In deciding to order the further hearing, the HC found Lord Mance’s comments in Nicklinson more convincing. As will be recalled, his Lordship argued that it would be ‘impossible’ to reach ‘any reliable conclusion’ on any risks and the necessary safeguards ‘without detailed examination of first-hand evidence, accompanied by cross-examination’.¹⁸⁰

The ‘preliminary issue’ hearing took place over two days in March 2018 to decide whether it was appropriate and necessary for the HC to hear primary evidence with cross-examination to determine the ethical, moral, and social policy issues, and thus determine section 2(1)’s compatibility.¹⁸¹ The HC said that not much would be gained by hearing primary evidence and cross-examination, and Irwin LJ and Phillips J dismissed the claimant’s request saying that expert views were either already clear or could be clarified in writing during trial.¹⁸² The request for a ‘leapfrog appeal’ to the UKSC on the basis that the issue was of ‘general public importance’, was rejected as ‘premature’,¹⁸³ perhaps rightly so at that stage as the ‘preliminary issue’ decision was pending and a full trial was not yet scheduled.

Although caught up in procedural complexities, the case remains important. Irwin LJ left the door open for the claimant to proceed with no oral evidence or cross examination, and said that ‘speedy hearings for any further applications’ could be facilitated.¹⁸⁴ Although litigation ceased due to the assisted death of Mr T in Switzerland,¹⁸⁵ the very nature of the request for an evidence-based approach by his legal team, in itself rare, significantly lowered the chances of success in the case. But what is this evidence-based approach to judicial review, and how rare is it?

Civil Procedure Rules 8.6(2) and (3), which apply to judicial review, establish that courts may permit or require a party to give oral evidence in a hearing and give directions for the attendance for cross-examination of a witness who has given written evidence.¹⁸⁶ The HC has an inherent jurisdiction to hear orally from witnesses in a judicial review.¹⁸⁷ Permission, however, will be given only where oral evidence is necessary to dispose of the claim fairly and justly,¹⁸⁸ or, in the words of Lord Diplock in 1983, when ‘the justice of the particular case so requires’.¹⁸⁹ The power is very exceptionally used.¹⁹⁰ So, although judicial reviews are not typically concerned with the merits of a decision,¹⁹¹ primary evidence with cross-examination may be allowed if the court considers it necessary. Mr T’s request was, therefore, within the Court’s power.

In T, allowing the request would have meant that primary, oral evidence on the ethical, moral, and policy issues relating to assisted suicide could have been heard and tested before the HC. This would have given the court the benefit of hearing directly from witnesses, especially those of the government, and assessing whether the justification for keeping in place the prohibition could still be respected if assisted suicide were to be regulated. Moreover, this review of the evidence could have allowed courts to be of ‘maximum assistance’ to Parliament, similar to what Lord Wilson envisaged in Nicklinson,¹⁹² and could have focused on key conflicts, including the effectiveness of safeguards and the role of palliative care. While this is a matter for extensive discussion elsewhere, there is definitely credit to Lady Arden’s argument that a ‘special role’ for the UKSC and a ‘special type of judgment’ may be required in assisted suicide cases to assist the debate in Parliament.¹⁹³ What form this judicial role or judicial assistance may take is not made clear in her Ladyship’s speech. In its most ‘radical’ form, it could be allowing this unusual course of action; in its most minor form, it could be a declaration of incompatibility by means of section 4(2). The judiciary, undoubtedly, has a role to play in assessing the impact of the prohibition on individuals and on society. In addition, a declaration of incompatibility by the court based on evidence would have sent an even stronger message to Parliament that the law needs reform, and could have convinced more Members of Parliament to favour legalisation. It is worth stressing again that courts do not need primary evidence to engage in a compatibility assessment, which is evident from the decisions in both Nicklinson and Conway. To a certain extent, though, the HC’s decision to reject Mr Omid T’s request is understandable for reasons explained below.

Typically, cross-examination takes place to resolve conflicts of evidence. Of course, the assisted suicide debate is full of conflicts of evidence as there are strong arguments on both sides. On this basis, one could argue that this complex matter should be the subject of this exceptional judicial power; that ‘justice’ demands it.¹⁹⁴ Even so, is the HC the right place to solve this conflict? There is definitely the expertise, but is that enough to effect a change if this is restrained by other factors? One such factor is Parliament’s reluctance to substantially engage with the matter primarily because assisted suicide is clearly not on the government’s agenda.

I argue that this lack of enthusiasm, primarily by the government (as there are many Members of Parliament clearly in favour of assisted suicide), actually justified the cautious approach by the HC when it came to primary evidence. On this basis, therefore, the HC’s decision in T was expected.¹⁹⁵ What the new legal strategy adopted by legal counsel for Mr T does, however, and I argue has been successful in doing, is to send a message to Parliament of the benefits of reviewing and considering ‘the available evidence’. Even if the HC in T allowed primary evidence with cross-examination to resolve some of the factual disputes between what the government asserted and what the claimant sought,¹⁹⁶ Parliament would still need to make its own inquiries. It is also doubtful whether primary evidence would have made the court confident enough to issue a declaration, considering the position of the government. Moreover, the courts do not have the power to take down section 2(1); Parliament would still need to get involved. Irwin LJ’s remarks in T may be interpreted to confirm this argument. He noted that ‘a range of questions’ relating to assisted suicide cannot be determined by reviewing evidence alone, and this review involved a ‘judgement about the future’ perhaps beyond the expertise of experts that could appear before the court.¹⁹⁷ My interpretation of this is that, beyond the review of ‘the available evidence’ (and what it may show), there are various ‘judgements’ on assisted suicide to be made; judgements that will need to be made by Parliament, despite, or in addition to any judgments by the judiciary. Parliament has the resources, the time, and, most importantly, the responsibility to look at ‘the available evidence’.

Mr Phil Newby took over the task of challenging the prohibition following Mr T’s death in Switzerland.¹⁹⁸ In November 2019, the HC refused to grant him permission to challenge the compatibility of section 2(1) with Articles 2 and 8. While Mr Newby’s condition was similar to Mr Conway’s (motor neurone disease, no specific prognosis) and involved a proposed ‘scheme’, his legal strategy was that of Mr T’s. Sadly, elements from Conway re-emerged. In refusing to grant permission, Irwin LJ noted that even if the request for primary evidence was allowed, the court ‘is not an appropriate forum for the discussion of the sanctity of life’.¹⁹⁹ There are a few things to be noted. First, the matter of primary evidence and cross-examination was not discussed in any detail. Considering the dismissive approach of the courts to this request by claimants, it is unlikely that future cases will attempt the same tactic. Relatedly, this evidence-based tactic seems to be outshone by, yet again, reference to the sanctity of life principle, and, yet again, the fact that courts are not, institutionally, an appropriate forum to discuss the matter of assisted suicide. As noted earlier, reference to this ‘animated social value’ according to the SCC,²⁰⁰ seems to be an effort to shut the door firmly to any meaningful discussion of the compatibility of section 2(1). Irwin LJ made another disappointing observation in Newby; although the Courts are ‘empowered to act’ under the HRA, judges should be ‘hesitant to do so’.²⁰¹ This is proof that although judges recognise the misconceived idea behind the power and role of section 4(2), they nevertheless defer to Parliament and so bypass the opportunity for collaboration with Parliament. The HC’s argument that courts lack ‘legitimacy and expertise’ to decide ethical and moral issues is, therefore, hard to accept.²⁰² Judges in the HC, daily rule on life and death matters. A declaration does not change the law, nor it will decriminalise assisted suicide. It simply marks an issue worthy of Parliament’s review. In January 2020, the CA refused Mr Newby’s application for permission to appeal the HC’s decision.

So, as seen both in T and Newby, English courts are not in favour of an evidence-based approach to judicial review of the prohibition. They consider it unnecessary and not adding anything to evidence already available. This may be down to the very nature of the request and its rarity. But the judicial reluctance may also be down to judicial unease with engaging with the evidence while Parliament, so far, has taken a very reserved approach to the matter. The assumption I make here, and it can only be an assumption without a complete analysis of ‘the available evidence’, is that primary evidence and cross-examination in T and Newby would have shown that there is another way to protect the vulnerable while respecting individual choice, and that the law is incompatible with the ECHR. So, with or without judicial involvement and with or without a declaration of incompatibility, to build a strong foundation for Parliament debating the intricacies of regulating assisted dying, an inquiry is needed.

Such inquiries are not new. Back in 1994, the House of Lords Select Committee (HLSC) on Medical Ethics, for example, unanimously determined that the deliberate taking of life should remain illegal, rejecting the case for both euthanasia and assisted suicide.²⁰³ Ten years later, another HLSC carried out an investigation in response to the Second Reading of the Assisted Dying for the Terminally Ill Bill.²⁰⁴ Three reports were produced,²⁰⁵ and several important recommendations made.²⁰⁶ Importantly, the case for reform was not immediately dismissed as in 1994. The most recent inquiry for England and Wales came from the non-governmental, privately-funded Commission on Assisted Dying (‘CAD’). In 2012, the CAD reported that the law and practice on assisted suicide in England and Wales is ‘inadequate and incoherent and should not continue’.²⁰⁷ The CAD was heavily criticised for its lack of independence,²⁰⁸ and on gaps relating to evidence it collected.²⁰⁹

Today, calls for a fresh inquiry are strongly supported. One example is the claimants and their families.²¹⁰ Paul Lamb, for instance, following the rejection of his case in November 2020,²¹¹ joined the call for an inquiry.²¹² In an open letter to Justice Secretary Robert Buckland, he urged the Justice Secretary ‘to take notice of this decision and launch an inquiry into assisted dying’.²¹³ The call is also supported by the biggest assisted dying campaign groups in the country - Dignity in Dying²¹⁴ and My Death My Decision (MDMD).²¹⁵ MDMD and Humanists UK have gathered support from many MPs and peers in another open letter to the Justice Secretary urging an inquiry.²¹⁶ The letter notes that since Parliament's last consideration of assisted suicide, ‘the evidence has materially changed, and […] new evidence necessitates a fresh review’.²¹⁷ Support for a government inquiry has also come from 18 Police and Crime Commissioners,²¹⁸ debates in Parliament,²¹⁹ and some individual MPs.²²⁰ Matt Hancock, then Health Secretary, in early 2020 said that the government ‘would consider collecting data on assisted dying if it was felt that that would improve and contribute to a sensitive debate in parliament’.²²¹ A few months later, he requested more data on the number of terminally ill patients who commit suicide, and the effect of the prohibition, if any, on these numbers.²²² These statements can only be seen as small wins considering Parliament’s unwillingness to set aside meaningful time for a debate.

VI. CONCLUDING REMARKS

This article advocates for an evidence-based inquiry of ‘the available evidence’; that is, evidence or data on how the law and practice work domestically, and how it works abroad. The review of this type of evidence is unlikely to be undertaken by the courts, as seen in T and Newby, and, sadly, it is hard to imagine what the next legal challenge may look like, if it ever reaches the courts. A careful reading of Nicklinson and Conway, but also how T and Newby have responded to them, underlines the need for Parliament to act, and, a generous reading of these cases may even show a gentle, subtle message from the judiciary to the government in this regard. An inquiry will alleviate the burden from the courts, but also from the claimants and their legal teams from needing to gather funds to support the gathering of primary evidence, and getting witnesses to testify. Parliament must look at the evidence and engage in a careful, informed review of the law on assisted suicide. This is to ensure that the right balance is achieved between individual and societal interests, but also to contribute to wider debates currently taking place around the world. With or without judicial assistance, with or without a declaration, the time is now for a review of the law.

Conflict of interest statement

None declared.