Never than to win them. Assisted suicide has

Never the less, the law would have to bemore lenient on murder/ assisted suicide for judges to be able to progress intoassessing each case individually on these moral issues. This would mean thatParliament would be restricting the judges, unless they altered the currentlegislation. This is due to the fact that Parliament’s political status and law-making status place itabove the courts.Parliament’s unwillingness to amend the law doesnot always mean that Parliament has carefully considered an issue and decidedto make no changes.

One could argue that it may mean that Parliament is awarethat all is not well, but that for the Government change is too difficult, toocontroversial, too disruptive of the legislative programme, too likely to losevotes rather than to win them. Assisted suicide has proved to be such a topic. There have been many instances where unjust law hasnot been changed for reasons of convenience or lack of parliamentary time andspace; and it can be argued strongly that the recent Bills on assisted dyingare such examples. In such a case, it could be argued that it is theconstitutional right and duty of the courts to intervene. If they had not done so in the past there wouldstill be a ban on homosexuals serving in the armed forces and detention withouttrial. The doctrineof Judicial Precedent has relied on for centuries Judges actively using their powersof interpretation to develop the law. To illustrate this is the case of R v Dica. This case involved the transmissionof HIV and overruled the previous authoritative case, R v Clarence, saying that it was no longer good law and the personwho knowingly had an STI or HIV and “recklessly transmitted that diseasethrough consensual intercourse” would be liable for a criminal offence.

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1 This is evidence that English judges are not “too willing to imposeartificial and undesirable limits on their own power to change the law” onstatute that enables them to interpret it in a way that benefits all victimsand is appropriate to do so.In appropriate cases,therefore it is entirely appropriate for judges, charged with upholding therule of law and fundamental rights, to tackle the legislative acts anddecisions of Parliament head on; particularly if Parliament has failed to heedwarnings and change a law which is arguably inconsistent with those rights. ConclusionToconclude, I agree with Lord Neuberger’s statement that ‘the determination ofthe criminal law on a difficult, sensitive and controversial issue such as assisted suicide is one whichis very much for Parliament.’2Thiswould hopefully go towards eliminating inconsistent decisions from courts onsuch serious matters, because Parliament could legislate the boundaries of whatwould be allowed, ensuring compatibility with theEuropean Convention on Human Rights.

Also,in Nicklinson, the court did not issue a declaration of incompatibilityfrom a desire to impose artificial and undesirable limits on their own power tochange the law, but because they felt it wasinappropriate to do so whilst Parliament was still considering whether to amendsection 2 to enable people to ‘be assisted in ending their lives’.3Thepresence of dissent in the judgment shows that there was debate and thatcareful consideration was given to all the relevant factors.I will argue thatthis an example of a very sensitive and fundamental issue that should bedetermined through parliamentary debate and which should reflect publicopinion. Therefore, the Supreme Court was correct in making this decision.His thoroughjudgment reveals that even though there may be limits imposed on their powers,these limits are not artificial or undesirable considering the morality of theissues they are discussing and also the fact that Parliament’s law-makingstatus places it above the courts.

The supreme law maker beingParliament and the courts should not, via the development of the common law(judicial precedent) or the Human Rights Act, directly challenge thatsupremacy.1 R V Dica 2004 EWCA Crim11032 Regina(Nicklinson) and another v Ministry of Justice and others (CNK Alliance Ltd andothers intervening) 2014 UKSC 38.3 Regina (Nicklinson) and another v Ministryof Justice and others (CNK Alliance Ltd and others intervening) 2014 UKSC38.