Conway, R (On the Application Of) v The Secretary of State for Justice (Rev 1)

When deciding whether to permit a judicial review seeking a declaration of incompatibility, the court must distinguish its constitutional jurisdiction from the institutional appropriateness of exercising it. Parliament’s settled decision not to amend legislation is an important consideration, but it does not automatically or indefinitely bar the court from considering compatibility. Nor may the court scrutinise the quality of parliamentary debate, contrary to article 9 of the Bill of Rights 1689. A claim may be arguable where circumstances have materially changed since an earlier decision, including where Parliament is no longer actively considering the issue and substantially fuller evidence addresses matters previously left unresolved. The court must give due weight to Parliament’s decision while avoiding an abdication of its jurisdiction.

Mr Conway, who had motor neurone disease and wished to obtain medical assistance to end his life, sought permission to apply for judicial review and a declaration under section 4(2) of the Human Rights Act 1998 that section 2(1) of the Suicide Act 1961 was incompatible with article 8 of the European Convention on Human Rights.

The Divisional Court, by a majority, refused permission: [2017] EWHC 640 Admin. Charles J dissented. The central issue in the Court of Appeal was whether the circumstances identified in R (Nicklinson) v Ministry of Justice had changed sufficiently to make a declaration of incompatibility institutionally arguable, particularly after Parliament had declined to change the law and further evidence had become available.

1. Outcome. Permission to appeal and permission to apply for judicial review were granted. The matter was remitted to the Divisional Court to hear and determine the case.
2. The court distinguished the constitutional question whether the courts have jurisdiction to consider the compatibility of section 2(1) of the Suicide Act 1961 from the institutional question whether it is appropriate to exercise that jurisdiction. The latter may affect the practical exercise of the former, but Parliament’s settled decision not to change the law does not create an automatic and indefinite jurisdictional bar.
3. The relevant question was whether the circumstances that led the Supreme Court in R (Nicklinson) v Ministry of Justice to refuse a declaration had changed so that a different outcome might be possible. The issue remained sensitive and controversial, and the difficulty of devising a safe and workable scheme continued to justify caution. Nevertheless, the fact that Parliament had ceased actively considering the issue, while reaching a settled decision, materially altered the circumstances. The court therefore held that Mr Conway was entitled to argue that intervention was no longer institutionally inappropriate, subject to giving due weight to Parliament’s recent decision.
4. References in Nicklinson to the issue being satisfactorily addressed could not require a qualitative assessment of parliamentary debates. Article 9 of the Bill of Rights 1689 prevented the court from judging the quality of those debates. The requirement meant only that the issue had been adequately dealt with.
5. The fuller primary factual and expert evidence in the present case made it arguable that a practical and robust mechanism could be devised for the narrowly defined group concerned. This addressed one of the questions left unresolved in Nicklinson. The evidence was not, however, a free-standing reason for granting permission; it supported the conclusion based on the changed parliamentary circumstances.
6. The Canadian decision in Carter v Canada did not materially alter the position because it arose under different constitutional principles and was not focused on institutional appropriateness in England and Wales.

• Court of Appeal (Civil Division): Permission to appeal and permission to apply for judicial review granted; matter remitted to the Divisional Court.
• Divisional Court: By majority, permission to apply for judicial review was refused: [2017] EWHC 640 Admin. Charles J dissented.