R (Conway) v The Secretary of State for Justice
|England & Wales
|Lord Justice Beatson
|12 April 2017
| EWCA Civ 275
|Court of Appeal (Civil Division)
|12 April 2017
|Case No: C1/2017/0912
 EWCA Civ 275
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DIVISIONAL COURT
LORD JUSTICE BURNETT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lord Justice Beatson
Case No: C1/2017/0912
Mr Richard Gordon QC, Ms Annabel Lee (instructed by Irwin Mitchell Solicitors) for the Appellant
Mr James Strachan QC (instructed by Government Legal Department) for the Respondent
Hearing dates: 11 APRIL 2017
This is the judgment of the court to which we have both contributed in an application for permission to appeal against the decision of the Divisional Court on 31 March 2017: . A majority of that court, Burnett LJ and Jay J, with Charles J dissenting, refused to grant the claimant, Mr Noel Douglas Conway, permission to apply for judicial review to seek a declaration under section 4(2) of the Human Rights Act 1998 that section 2(1) of the Suicide Act 1961 ("the 1961 Act") is incompatible with the European Convention on Human Rights ("ECHR"). Section 2(1) provides that a person commits a criminal offence if he or she does an act capable of encouraging or assisting the suicide or attempted suicide of another person and their act was intended to encourage or assist suicide or an attempt at suicide.
These proceedings arise out of tragic and distressing facts. In 2014, Mr Conway, now aged 67, was diagnosed with a form of Motor Neurone Disease. In November 2014, he was informed that he may have a life expectancy of between 6 and 18 months. He has largely lost his mobility and uses a wheelchair, and needs assistance with many everyday activities. His consultant neurologist, Dr Pall, stated that when he was diagnosed he was showing signs of respiratory failure but Dr Stockdale, his palliative care consultant, stated that in November 2016 his speech and swallow were not affected. He states that, if his breathing muscles collapse, which his respiratory nurse tells him is a possibility, he could die at any time. The evidence is that if he elects to stop using the non-invasive ventilation equipment treatment he is now using he would probably only have weeks at the most to live, but that the timing is uncertain, as is the nature of any pain or distress he may suffer.
Mr Conway wishes to enlist the assistance of a medical profession to bring about his death in a peaceful and dignified way at a time while he retains the capacity to make the decision. His family respect his decision and choices and wish to support him in every way they can, but his wife states she would be extremely concerned about travelling to Switzerland with Mr Conway so he can receive assistance from Dignitas.
The issue in Mr Conway's case is therefore the same or very similar to the issue considered by the Supreme Court in , . That case was heard by nine justices of the Supreme Court who handed down their judgments on 25 June 2014, less than three years ago. Five justices held that in enacting section 4 of the Human Rights Act 1998, Parliament had given the courts power to declare legislation incompatible with the ECHR even where the decision fell within the state's margin of appreciation, that in exercising that power the courts could not compel Parliament to act to remove any incompatibility identified and so in that case it would have not been outside the court's constitutional or institutional powers to declare section 2 of the 1961 Act incompatible with ECHR Article 8, but it was inappropriate for it to do so. Whether the grounds in the present proceedings raise an arguable case justifying granting permission to apply for judicial review depends on a close analysis of what that case decided, and whether, and if so, what possibilities it left open.
Our summary of the positions of the nine justices in case has benefited considerably from Burnett LJ's analysis in  –  of his judgment They took positions that fell into three broad groups. Lord Sumption, Lord Hughes, Lady Hale and Lord Kerr had settled but different views. Lord Sumption and Lord Hughes considered that the question of relaxation of section 2(1) was for Parliament, and that Parliament could properly conclude that a blanket ban on assisted suicide was necessary for the purposes of Article 8, and it had already done so. Lady Hale and Lord Kerr, who dissented and would have made a declaration of incompatibility, considered that, unless Parliament devised a scheme which admitted of exceptions to section 2(1), the incompatibility would persist although they recognised that Parliament might take a different view and decline to change the law, as the Human Rights Act 1998 allows.
As Burnett LJ stated, the position of the remaining five justices fell in between these settled views. Lord Neuberger, Lord Mance and Lord Wilson concluded that the appeal should be disposed of in the same way but contemplated that circumstances may arise in the future in which an application for a declaration of incompatibility might succeed. At  of his judgment, Lord Neuberger gave four reasons which, he stated, when taken together "persuaded him that it would be institutionally inappropriate at this juncture, for a court to declare that section 2 is incompatible with article 8, as opposed to giving Parliament the opportunity to consider the position without a declaration. In summary, these were: (1) the issue is deeply controversial and sensitive; (2) it would not be simple to identify a remedy for an incompatibly; (3) Parliament had recently and repeatedly considered section 2 and a Bill was under consideration at the time: (4) in the decision in the House of Lords had given Parliament to understand that a declaration of incompatibility would be inappropriate, a view reinforced by the conclusions of the Divisional Court and the Court of Appeal in the case itself. Lord Neuberger also stated (see  and ff, and  – ) that in any event he would not have made a declaration of incompatibility because of the unsatisfactory state of the evidence and the arguments available to the court.
While Lord Mance and Lord Wilson agreed generally with Lord Neuberger's reasoning and conclusions, there are differences in the way the three justices address the question of when, if at all, circumstances may arise in which an application for a declaration of incompatibility might succeed. Lord Neuberger stated at  that "Parliament now has the opportunity to address the issue of whether section 2 should be relaxed or modified, and if so how, in the knowledge that, if it is not satisfactorily addressed, there is a real prospect that a further, and successful, application for declaration of incompatibility may be made."
Lord Neuberger also stated at  that it would not be appropriate or even possible to identify in advance what amounts to a reasonable time in this context but that, bearing in mind the circumstances of the applicants in that case and the attention the matter has been given inside and outside Parliament over the past twelve years, "one would expect to see the issue whether there should be any, and if so what, legislation covering those in the situation of Applicants explicitly debated in the near future" either with or in addition to whether there should be legislation along the lines of Lord Falconer's Assisted Dying Bill that was before Parliament at that time. He did not consider it possible or appropriate to identify in advance what would constitute satisfactory addressing of the issue, or what would follow once Parliament had debated the issue because that would have to be judged if and when a further application was made, but he added that "it may transpire that, even if Parliament did not amend section 2, there should still be no declaration of incompatibility".
Lord Wilson stated at [197(f)] that one of Lord Neuberger's "crucial conclusions" was that, "were Parliament not satisfactorily to address that issue, there is a real prospect that a further, and successful, application for a declaration of incompatibility might be made" and (at ) indicated that if Parliament failed satisfactorily to address the issue, a fresh claim for a declaration of incompatibility "is to be anticipated" supported by "focussed evidence and submissions" which he stated the court in that case lacked, and while the conclusion could not be prejudged "there is a real prospect of success". Lord Mance was more cautious in the possibilities left open. He stated at  –  that where a "considerable" margin of appreciation exists at the international level, under the Human Rights Act 1998 both the legislature and the courts have a potential role in assessing whether the law is at the domestic level compatible with the rights under the ECHR and that "the legislator's choice is not necessarily the end of the matter", but that questions of institutional competence arise at the domestic level. He stated that whether section 2 is incompatible raises difficult and sensitive issues which a court was less well equipped than Parliament to address. He also stated (at ) that Parliament was certainly the preferable forum in which any decision should be made, after full investigation and consideration, "in a manner which will command popular acceptance".
Lord Clarke and Lord Reed agreed generally with Lord Sumption and Lord Hughes. Lord Clarke stated that if Parliament debated the matters and after mature consideration concluded that there should be no change in the law he would hold that no...
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