Never the less, the law would have to be
more lenient on murder/ assisted suicide for judges to be able to progress into
assessing each case individually on these moral issues. This would mean that
Parliament would be restricting the judges, unless they altered the current
legislation. This is due to the fact that Parliament’s political status and law-making status place it
above the courts.
Parliament’s unwillingness to amend the law does
not always mean that Parliament has carefully considered an issue and decided
to make no changes. One could argue that it may mean that Parliament is aware
that all is not well, but that for the Government change is too difficult, too
controversial, too disruptive of the legislative programme, too likely to lose
votes rather than to win them. Assisted suicide has proved to be such a topic.
There have been many instances where unjust law has
not been changed for reasons of convenience or lack of parliamentary time and
space; and it can be argued strongly that the recent Bills on assisted dying
are such examples. In such a case, it could be argued that it is the
constitutional right and duty of the courts to intervene.
If they had not done so in the past there would
still be a ban on homosexuals serving in the armed forces and detention without
of Judicial Precedent has relied on for centuries Judges actively using their powers
of interpretation to develop the law. To illustrate this is the case of R v Dica. This case involved the transmission
of HIV and overruled the previous authoritative case, R v Clarence, saying that it was no longer good law and the person
who knowingly had an STI or HIV and “recklessly transmitted that disease
through consensual intercourse” would be liable for a criminal offence.1 This is evidence that English judges are not “too willing to impose
artificial and undesirable limits on their own power to change the law” on
statute that enables them to interpret it in a way that benefits all victims
and is appropriate to do so.
In appropriate cases,
therefore it is entirely appropriate for judges, charged with upholding the
rule of law and fundamental rights, to tackle the legislative acts and
decisions of Parliament head on; particularly if Parliament has failed to heed
warnings and change a law which is arguably inconsistent with those rights.
conclude, I agree with Lord Neuberger’s statement that ‘the determination of
the criminal law on a difficult, sensitive and controversial issue such as assisted suicide is one which
is very much for Parliament.’2This
would hopefully go towards eliminating inconsistent decisions from courts on
such serious matters, because Parliament could legislate the boundaries of what
would be allowed, ensuring compatibility with the
European Convention on Human Rights.
in Nicklinson, the court did not issue a declaration of incompatibility
from a desire to impose artificial and undesirable limits on their own power to
change the law, but because they felt it was
inappropriate to do so whilst Parliament was still considering whether to amend
section 2 to enable people to ‘be assisted in ending their lives’.3
presence of dissent in the judgment shows that there was debate and that
careful consideration was given to all the relevant factors.
I will argue that
this an example of a very sensitive and fundamental issue that should be
determined through parliamentary debate and which should reflect public
opinion. Therefore, the Supreme Court was correct in making this decision.
judgment reveals that even though there may be limits imposed on their powers,
these limits are not artificial or undesirable considering the morality of the
issues they are discussing and also the fact that Parliament’s law-making
status places it above the courts.
The supreme law maker being
Parliament and the courts should not, via the development of the common law
(judicial precedent) or the Human Rights Act, directly challenge that
1 R V Dica 2004 EWCA Crim
(Nicklinson) and another v Ministry of Justice and others (CNK Alliance Ltd and
others intervening) 2014 UKSC 38.
3 Regina (Nicklinson) and another v Ministry
of Justice and others (CNK Alliance Ltd and others intervening) 2014 UKSC