The current law on assisted suicidecriminalizes any individual who assists or encourages someone else to commitsuicide This was confirmed in Lord Neuberger’s judgement in R (Nicklinson) vMinistry of Justice and R. (on the application of AM) v Director of PublicProsecutions? which raisedcontroversial views condemning the courts approach as being intentionally limitedto develop the law on assisted to suicide. Nevertheless, this essay aims to arguethat the view that the judiciary are not taking all necessary measures tochange moral based laws is only true to a certain extent.
The principle issuesthat will be discussed in this paper is whether judicial review judges areutilizing a misconception of democracy to abstain from choosing important legalissues in this case assisted suicide. The second issue is whether they are wronglyproceeding on the basis that these issues are not matters for the courts ratherfor the parliament. In this case, terminallyill Tony Nicklinson attempted but failed in various legal actions to challengethe current law on assisted suicide as he wanted a doctor to help him end hisown life Following his death dueto voluntary starvation, his wife Jane joined by Mr. Lamb who is alsoterminally ill in this case appealed this decision to the supreme court. The law sustainedchallenge from the complainants on the justification that it fails to complywith certain requirements of the European Convention on human rights. At this stage ofthis case the claimants Nicklinson and Lamb both claim that the court of appealhad erred in not declaring the current Suicide Act incompatible with articles 8and 14 of the European Convention on Human rights.
Although, by a majorityjudgement the supreme court dismissed their appeals and refused to issue adeclaration on the grounds that it lies within the margin of appreciate grantedby the ECHR to convention states. However dissenting judges believed that adeclaration was necessary as a constitutional role of the domestic courts to protectthe rights of the individuals. As a result ofsuch approach, Nicklinson brought an argument before ECtHR that this is anultimate breach of convention rights specifically stating article 8. Although, Itwas declared inadmissible due to the drawn conclusions that this provision doesnot impose procedural obligations on the domestic courts to examine thebenefits of a challenge in regards to Acts of parliament. Thus, if this were tohappen it would amount to imposing upon them a constitutional role that is not envisagedby the constitutional order. Therefore, it would be peculiar to deny that thecourts will eventually come to the conclusion , similar to Strasbourg court thatparliament is the ultimate decision maker in moral and social issues. It can besuggested that the Supreme Court judges who went against declaration ofincompatibility in issues where moral arguments arise, had the right to showdeference, and reestablished the point that if they choose not to use suchpower it will not amount to a breach of convention.