Tony Nicklinson, who recently failed to persuade the High Court that doctors should be allowed to end his life without fear of prosecution, has finally escaped from the “living nightmare” of a life with locked-in syndrome. Yesterday he died of natural causes, just six days after the decision, having refused food since the verdict was made.
It seems to me that the conduct of the judges amounted “to torture, or to inhuman or to degrading treatment”, which is prohibited under Article 3 of the European Convention on Human Rights and, consequently, under the UK Human Rights Act. Their decision condemned Tony Nicklinson, a brave and resourceful man, to a miserable and demeaning existence. He was paralysed from the neck down after a stroke in 2005: he had to have assistance to perform even the most simple acts and could communicate only by blinking. He said he was “devastated” by the court’s decision.
Explaining the verdict, Lord Justice Toulson said that both Tony Nicklinson’s and another's case were both “deeply moving”. However, he added:
"A decision to allow their claims would have consequences far beyond the present cases. To do as Tony wants, the court would be making a major change in the law. It is not for the court to decide whether the law about assisted dying should be changed and, if so, what safeguards should be put in place. Under our system of government these are matters for Parliament to decide."
For his part, Tony Nicklinson said:
“I thought that if the court saw me as I am, utterly miserable with my life, powerless to do anything about it because of my disability, then the judges would accept my reasoning that I do not want to carry on and should be able to have a dignified death. I am saddened that the law wants to condemn me to a life of increasing indignity and misery”.
It is, of course, true that a humane judgment would have necessitated major adjustments to law, medical practice and ethics, with safeguards against abuse of the change; and that in rejecting Nicklinson’s plea, the judges may be said to be acting with due democratic propriety in deferring to Parliament, as Sameer Mallick argues here in OurKingdom. However, the case raises major questions about the judiciary’s understanding of the nature of parliamentary government as it exists and their proper role as guardians of human rights in the UK.
The judiciary generally ascribes full democratic credibility to a Parliament which, in the UK, is dominated by an executive usually comprised of one party; which is elected by a disproportionate electoral system from a flawed electoral roll; and which consists therefore of an unrepresentative lower chamber and an unelected second chamber. Opinion polls have, for years, shown that a majority of respondents support a change in the law regarding the right to die. However, in cases like that of Tony Nicklinson, the House of Lords is vulnerable to a large religious lobby, organised and backed by the pro-life group Care Not Killing. The Lords has a significant religious membership, reinforced by the presence of 26 bishops, leading the unelected peers to sabotage every recent attempt at a right-to-die reform.
The Guardian's Polly Toynbee has argued:
[The Lords claim] their opposition springs from a fear that reform will lead to mass exterminations of the inconvenient old - but why should the religious worry more about that than everyone else? The law would provide safeguards. The real religious reason is theological, as voiced in the Lords by the Bishop of Oxford when he proclaimed: "We are not autonomous beings" – meaning we must all wait for God's release. Presumably, avoidable suffering is part of God's mysterious purpose.
She does, however, support the argument that reform is a matter for Parliament, not the courts. This argument derives from the traditional institutional view of the relationship between the “elected” Parliament and the “unelected” judiciary. The advent of human rights law modifies the Manichean proposition that the courts are bound in deference to Parliament; human rights doctrine suggests that they are an essential component of a modern rights-based democracy, which acts to protect the interests of minorities in what is otherwise a majoritarian system in which such interests may otherwise be neglected or even suppressed.
The former Lord Chancellor, Lord Falconer, plans a private member's bill for the Lords in January to allow those with a diagnosis of death within twelve months to ask for a lethal prescription. They must administer it themselves in a medical setting, with two doctors certifying they are of sound mind. This is an essentially weak and flawed bill, but then its purpose is to ventilate the issues, rather than to bring about actual reform through an incorrigibly hostile forum. Meanwhile, hundreds of people must suffer year on year.