One of the two recent ‘right to die cases’ has failed in the High Court.
In his case against the Secretary of State for Justice, Noel Conway had hoped to change the current law on assisted dying. Diagnosed two years ago with motor neurone disease, Mr Conway had instructed Irwin Mitchell to seek permission for a judicial review on the ban of assisted suicide.
Section 2(1) of the Suicide Act (SA) 1961 prohibits assisted suicide and voluntary euthanasia is considered murder under UK law. The judicial review Conway brought was against the Ministry of Justice and sought a declaration under the Human Rights Act 1998; that the specific provision under the SA 1961 is incompatible with his rights under the European Convention on Human Rights.
The other high profile case – Omid v The Ministry of Justice – also regards assisted death, and is ongoing.
Both claimants had recently used crowdfunding sites to assist them in covering the legal costs.
Conway’s case bears similarity to the Nicklinson case brought in 2014. Much like Nicklinson, Conway’s life expectancy is measured in months rather than years.
Several comments made in the 2014 judgment had been partially relied upon in Conway’s case. Lord Neuberger, Mance and Wilson had highlighted the need for parliament to consider the issues within the case and to provide the courts with guidance.
Should that not happen, Neuberger stated that there was a real chance “that a further, and successful, application for a declaration of incompatibility may be made”. He acknowledged that the existing legislation could potentially be breaching the HRA.
An assisted dying bill was introduced into the House of Lords in June 2014 by Lord Falconer which made no further progress after initially being debated. Largely in the same form was the bill brought to the House of Commons by Rob Marris in June 2015. Following much debate and a final vote, the bill was rejected.
During yesterday’s (30/03/17) hearing, Lord Justice Burnett also highlighted that anther bill had been introduced to the House of Lords in June 2016, but that no date had been set for a second reading. More recently still were the discussions in the House of Lords during January 2017.
The judge went on state that in his view, “the settled will of Parliament following the Nicklinson cases is that there should be no change in the law by relaxing section 2 (1) of the 1961 Act.”
Although the matter is one likely to be subject to debate, the fact that three private members’ bills have failed suggests that the Government “have made clear that they have no intention of introducing legislation”.
The main sentiment expressed in his judgment was that the matter of assisted dying had been sufficiently considered by Parliament in the time since the Nicklinson case. “In summary,” he continued, “Parliament has done precisely what the Supreme Court suggested was necessary.”
Despite praising Conway’s “selfless” actions, the three judges hearing the case rejected his bid to change the law.
Conway has stated that he wishes to continue his fight against the blanket ban on assisted dying, and will seek an appeal.
“I am very disappointed in the court’s decision not to grant my case permission to proceed. Though this is a set back in my fight for rights at the end of my life, I will not be deterred and will be appealing this decision.
“I am fighting for choice and control over my death, because the current ban on assisted dying denies me these rights and forces me to face an unacceptable set of options that most people would balk at in disbelief.”
The judgment can be accessed here.
