The Right to Die has proven a controversial statement that divides opinions on moral interpretations. It was the key focus of R Nicklinson v Ministry of Justice 2014, during which the law and Parliament stood against it. Mr. Nicklinson, paralysed by a stroke some years earlier, contested the 1961 Suicide Act as a violation of Article Eight of the EU convention of Human Rights, particularly his right to a private life and control over the manner of his death.
An exception was Lord Neuberger, who cited the possibility that a ‘real prospect’ of a future human rights challenge could succeed should Parliament not adjust to changing ethics. Neuberger defended his compliance and inaction with the statement that (he) was doing so to “enable Parliament to consider the position”.
This statement can present a number of problems from the perspectives of morality, order and status quo, alongside potential inquiries from the European Court of Human Rights. To begin on the question of morality, questions have to be asked as to the purpose of law. A cynic could cite Hobbes and the State of Nature, the idea that humans are an inherently dangerous species and that during times without law – the eponymous States of Nature – the species will turn on itself. Law, in Hobbes’ view, is a way to protect humans from themselves; morality does not factor, it is simply a matter of preserving the greatest number possible.
By this interpretation, the Right to Die is inherently immoral by virtue of attacking the status quo. The law should not, according to Hobbes, be challenged in this or any other form; Lord Neuberger invites dissent against a system which, if not perfect, was at the very least functioning. Morality has no place in law because regardless of morality’s perspective, law would remain a necessity and to compromise on it jeopardises the safety of the majority.
Others would describe the law as enforcing the cultural standard – i.e the prevalent morality of the time. This interpretation would be more favourable to Lord Neuberger and Mr Nicklinson; the Suicide Act was founded on Judeo-Christian ethics, that is to say non-secular, and have failed to adapt themselves to an increasingly multicultural society that does not share the same values. There is no fairness, they would argue, in being beholden to the whims of a long-dead minority because their cultural mores were more antiquated than one’s own.
One has to consider the role of statutory interpretation in matters such as these. Statutory interpretation is a failsafe mechanism built into our legal system for when a given law has yet to adapt to changing contexts. The concept can be summarised by it’s name – the act of judges interpreting the law through a variety of different perspectives, often going against the wording of an act in order to attain a more just verdict.
Statutory Interpretation
Statutory interpretation is a vital part of our legal system due to alleviating the above problems. If an act does not conform to a result that the judge would consider ‘just’, then the judge can analyse it through four different perspectives. For the purposes of argument the following three are the most common – the Literal, Golden and Mischief rules.
The Literal is the simplest of the three, and infers going by the wording of an act as it was put down. The Golden rule instead considers the context of the act itself and it’s intended purpose rather than the wording; for instance in the case of Re Sigsworth (1935) wherein the defendant had murdered his mother and, under the Literal rule, would have been set to inherit her estate. The third perspective, the Mischief rule, is intended to avert loopholes and evading consequences.
Statutory interpretation, by its nature, cannot be mandated. It is still a tool applied to the judiciary and used at judges’ discretion; each perspective is flawed and situational, but together they help alleviate the problems of context. Considering the flaws, however, a more permanent and efficient solution would be to do as Lord Neuberger suggests, lending more credence to his statement.
Statutory interpretation is also by its nature a fallback measure. For unconventional cases judges rely first and foremost on Judicial Precedent, or how similar a case is to a previously given verdict. Lord Neuberger’s critique still applies in this context when one considers changing ethics contrasted with permanent precedent.
The crux of Mr. Nicklinson’s argument rested on an EU law, which in turn brings up questions as to the influence of European courts in the British judicial system. Assuming for the pre-Brexit context of his case, the court’s influence would, by technical definition, supercede that of our own judiciary. In two instances from 2007 and 2011 respectively, for example, prisoners appealed to the European Court of Human Rights and were permitted to father children from behind bars, under Article Eight and their right to a ‘family life’.
UK judges are restrained; every verdict must be compatible with European human rights. This is still subjective and liable to statutory interpretation, but it does express a worrying precedent if it weren’t for sovereign power. Just as the EU courts can overrule UK courts on matters of human rights, they can in turn be overruled by the UK on domestic matters. When Theresa May made the now-infamous proclamation of “(Our) laws will be interpreted not by judges in Luxembourg but in courts all across the country”, she failed to mention that the EU court could be overruled in this manner.
Then, of course, there is the matter of how many cases actually make it to the EU high court. From an estimated 700+ submitted in this way, over 500 were settled long before an EU judge could be involved. To conclude this digression, EU law has never truly held power in the UK, or at least no more power than the UK chooses to allow it, and as such should not be factored into the validity of the statement. Indeed, with regards to Nicklinson V. Ministry of Justice, the supreme court ruled that this particular domestic matter could not be influenced by the EU charter.
One must consider the role of the judiciary compared to parliament when it comes to the making of laws. The judge’s role is, ostensibly, simply to enforce the existing law. Parliament dictates, and judiciary interprets; precedent exists to maintain consistency. One of the earliest recorded cases in English law contains the line “I think you will do as others have done in the same case, or else we do not know what the law is.”
One has to contrast this with the case of Donoghue V. Stevenson, the verdict of which, ironically, established a long-standing precedent for the alteration of new laws by the judiciary. Donoghue V. Stevenson codified the ‘neighbour principle’ into law and removed the requirement of a contract for the definition of ‘neglect’. This can also be considered an active example of law being based upon morality.
By official protocol and constitutional role, judges do not make law. This does not make them powerless; for one, they have full right to interpret the text as they see fit, potentially breaking the golden rule of the text’s intention in favour of the literal perspective of it’s diction. Judges can act where there is no express law, which in turn creates precedent that can be uplifted into law – during R v Dica (2004), for instance, the defendant was charged with criminal liability for deliberately infecting another with HIV, despite the act not being criminalised by the Home Office. To cite Lord Denning, “The judges do every day make law, though it is almost heresy to say so.”
Questions as to the morality of the right to die are irrelevant; Lord Neuberger’s statement was intended solely for the conflict with human rights, which, regardless of symbolism, are a purely legal document (though they are influenced by morality and ethics, lending credence to the idea that lawmaking should be based on such principles). This, however, requires a new perspective on the Hobbesian morality expressed earlier; if Hobbes would consider societal disruptions immoral, then what of the friction of selectively choosing when to follow a given charter and the uncertainty therein?
Lord Neuberger’s statement, when taken into account with the context of judicial protocol, is an abject cry against precedent in favour of changing times. In some ways it is a threat, in others a simple prediction; ethics are changing, 80% of the UK populace believes in allowing at least some degree of euthanasia, and eventually Parliament will have to make considerations. Considering previous negligence of EU human rights, sovereign power, precedent and the UK’s attempts to break free from EU influence, however, one cannot be fully confident in his predictions. Parliament has the capacity to refuse, however unlikely that potential situation appears.
To see whether precedent holds true one must wait and see how the still-ongoing cases of Noel Conway and Paul Lamb resolve themselves. From a moral, ethical and orderly perspective, one can only hope that Parliament finds some form of compromise in place of their current unyielding position. Judges do indeed have a great degree of influence over law-making, but should Parliament stand it’s ground then the right to die will remain out of reach regardless of human rights.