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

A declaration of incompatibility concerning assisted suicide may be institutionally inappropriate even where the court has jurisdiction to grant one. The court must give substantial weight to Parliament’s considered response to the issue, particularly where the subject involves controversial social and moral policy and any legislative solution requires detailed choices. The relevant evidence is the outcome of parliamentary proceedings, not the quality or content of debates, which cannot be scrutinised under Article 9 of the Bill of Rights 1689. Where Parliament has reconsidered the issue after the Supreme Court’s guidance and has chosen not to amend the statutory prohibition, a renewed application may be unarguable. The position under Article 14 adds nothing where the Article 8 claim cannot succeed.

Noel Douglas Conway, who had motor neurone disease, 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 Articles 8 and 14 ECHR. He wished, while retaining capacity, to obtain medical assistance to end his life peacefully and with dignity.

The application followed the Supreme Court’s decision in R (Nicklinson) v the Ministry of Justice [2014] UKSC 38, which had refused a declaration by a majority. The central issue was whether subsequent parliamentary consideration and debate had changed the circumstances sufficiently to make a declaration institutionally appropriate.

By a majority, Burnett LJ and Jay J refused permission to apply for judicial review. Charles J would have granted permission.

1. Majority reasoning. The Supreme Court’s decision in R (Nicklinson) v the Ministry of Justice [2014] UKSC 38 recognised that the courts had jurisdiction to consider compatibility, but identified Parliament as the preferable institution for resolving the issue. The institutional concerns included the sensitive and controversial nature of assisted dying, the complexity of designing safeguards, and Parliament’s recent and repeated consideration of section 2.
2. After Nicklinson, Parliament debated proposed legislation in both Houses. Several private members’ bills failed, including the Assisted Dying (No. 2) Bill, and the Government had no intention of introducing legislation. The court was entitled to consider those outcomes. It was not entitled to assess the quality, content or adequacy of parliamentary debates, because Article 9 of the Bill of Rights 1689 precluded such scrutiny.
3. The court concluded that Parliament had done what the Supreme Court had indicated was necessary: it had reconsidered the issue and had chosen, for the time being, not to relax the blanket prohibition in section 2(1) of the Suicide Act 1961. It therefore remained institutionally inappropriate to make a declaration, and the claim was unarguable for the purposes of CPR Part 54. The Article 14 claim had no realistic prospect of succeeding if the Article 8 claim failed.
4. The stay in related Family Division proceedings was not lifted. Other proposed directions, including a preliminary issue on institutional competence, were unnecessary.

Charles J dissented. He considered that the reasoning of the Supreme Court Justices was sufficiently divided to leave it arguable that, in some future circumstances, a declaration could be institutionally appropriate. He regarded the qualitative and evidential issues as matters requiring a full hearing rather than a refusal of permission.

The judgment describes a previous Supreme Court decision but is a first-instance decision on Mr Conway’s application.

• Supreme Court: R (Nicklinson) v the Ministry of Justice [2014] UKSC 38 refused a declaration of incompatibility by a majority.
• High Court (Administrative Court): permission to apply for judicial review was refused by majority decision.