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

A challenge to the prohibition on assisted suicide based on Articles 8 and 14 of the European Convention on Human Rights was not arguable. The justification for the interference is materially the same whether the claim is framed under Article 8 or as direct or indirect discrimination under Article 14 read with Article 8. The protection of vulnerable people remains a weighty justification. The courts must also give substantial weight to Parliament’s considered decision to retain the prohibition. The details of a proposed exception do not transfer responsibility for designing such a scheme from Parliament to the courts.

The claimant, who was seriously disabled following a road accident, sought permission to challenge Suicide Act 1961, ss 2 and 2A. He argued that the prohibition on assisting suicide interfered with Article 8 and discriminated against disabled people contrary to Article 14 read with Article 8. Permission had been refused on the papers. On renewal, the Administrative Court considered the effect of earlier decisions concerning assisted suicide, including Pretty v Director of Public Prosecutions, R (Nicklinson) v Ministry of Justice and Conway v Secretary of State for Justice.

1. Application refused. The renewed application for permission to apply for judicial review was dismissed as the claim was not arguable. The application for a costs capping order therefore did not arise.
2. The court accepted that it was not formally bound by Pretty v Director of Public Prosecutions. Nevertheless, the fundamental reasoning remained applicable: the prohibition is justified by the need to protect vulnerable people, and fundamental change in this sensitive area is for Parliament rather than judicial creativity.
3. The same factual interference required justification whether analysed under Article 8 or Article 14 read with Article 8, and whether the alleged discrimination was direct or indirect. The claimant’s disability meant that he could not end his life without assistance, but the statutory prohibition applied equally to able-bodied and disabled people.
4. The court rejected the submission that JD v United Kingdom required a different and more demanding approach. That case concerned benefits and a disparate impact affecting a person with a disabled child. It did not establish a distinct test for assisted suicide. In any event, the protection of vulnerable people, together with the sanctity of life and the possible effect on trust between doctors and patients, supplied very weighty reasons.
5. The claimant’s proposed legislative scheme did not alter the analysis. Its design was a matter for Parliament. If its details were relevant, the scheme would reinforce rather than weaken the justification because it would remove protection from a particularly vulnerable class of people who might be subject to internal or external pressure.
6. Lord Justice Dingemans agreed and added that Parliament’s assessment of the conflict between Article 2’s protection of life and Article 8 autonomy made the claim unarguable. He also agreed that the case was not a criminal cause or matter within the meaning of Belhaj & Anor v Director of Public Prosecutions.

Permission to apply for judicial review was refused on the papers by Whipple J on 27 September 2019. The Administrative Court dismissed the renewed application.