Newby, R (on the application of) v The Secretary of State for Justice

A court may assess compatibility under the Human Rights Act 1998, but its constitutional role does not give it special expertise or legitimacy to resolve contested moral and ethical questions. Where Parliament has recently and repeatedly considered the issue, and no material change is shown, the courts should not become the forum for arguments that have failed to persuade Parliament.

Evidence may establish factual premises relevant to proportionality. It cannot resolve judgments about the relative weight of personal autonomy, protection of vulnerable people and the sanctity of life. Oral evidence and cross-examination are therefore unlikely to determine the issue. A claim seeking to reopen the proportionality of the blanket assisted-suicide prohibition, including under Article 2, had no reasonable prospect of success.

The claimant, who suffered from motor neurone disease, renewed an application for judicial review after permission had been refused on the papers. He sought permission to challenge the Secretary of State for Justice and ultimately obtain 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 2 and 8 ECHR.

The immediate issue was whether the court should hear evidence and cross-examination concerning alleged legislative facts, including the ethical, moral and social-policy consequences of assisted-suicide regulation. The court also considered whether distinctions from Conway, and reliance on Article 2, made the claim arguable.

1. Permission refused. The renewed application was dismissed.
2. The court was bound by R (Conway) v Secretary of State for Justice, [2018] EWCA 143. Minor differences in the claimant’s condition and proposed safeguards did not alter the authoritative conclusion that the assisted-suicide prohibition was proportionate and that Parliament was the appropriate forum for deciding whether, and how, the law should change.
3. The constitutional adjustment made by the Human Rights Act 1998 did not remove the differences between courts and Parliament in composition, expertise, procedure, accountability and legitimacy. Courts must not abdicate their responsibility to consider Convention rights, but giving substantial weight to Parliament’s views was not an abdication.
4. Evidence could establish some factual premises, such as the risks to vulnerable people. It could not provide an objective answer to the moral and political judgment required to balance those risks against the autonomy of people seeking assisted suicide. Such questions were not reducible to statistical analysis or hard-edged facts. Oral evidence and cross-examination were therefore unlikely to resolve the dispute.
5. The reasoning in R (T) v Secretary of State for Justice, [2018] EWHC 2615 (Admin), supported the conclusion that some matters were factual, while the implications of legislative change involved judgment about the future. The proposed preliminary issue was therefore unarguable.
6. Article 2 added nothing. Following Pretty v United Kingdom, (2003) 35 EHRR 1, a prohibition on assisted suicide did not breach the right protected by Article 2. In any event, the same considerations that defeated the Article 8 claim defeated the Article 2 claim.

Permission was initially refused by Whipple J on 27 September 2019. The Divisional Court heard the renewed application and refused permission.