NIcklinson and “Martin” Lose their Cases

The ruling, and a summary, are available here.

I wouldn’t want to say that I told you so… but I did.  Twice.

And I can’t help but to wonder if this case should ever have come to court.  Sympathetic as I am to the moral arguments in favour of assisted dying, whether those arguments can be successfully translated into law is another matter (I mean: I think they probably can, but that doesn’t follow naturally even if the moral arguments are watertight) – and whether that law is something that the courts are in a position to determine is another one still.  Judge-made law is often perfectly fine – but there’s a world of difference between a judge tweaking the law in respect of section 17(1)(a) of the Arcane and Obscure Insurance Regulations Act 1957, and altering the law on murder, which is what the judges in this case were being asked to do.

Saimo Chahal, Tony Nicklinson’s solicitor, admitted in a Channel 4 News item earlier in the year that the arguments being presented on his behalf were “extremely novel and far-reaching” (skip to about 2:05).  In the same way, a lot of the coverage of the last 24 hours has mentioned that the case was described as “a full-frontal assault on the law of murder”.  I can’t actually find where that turn of phrase was used, or by whom (The Guardian quotes Andrew Fergusson of Care not Killing as saying that this is how the case had been described in court – a quotation that seems to come from his piece on the CMF blog but which isn’t currently linked there; I’d welcome any other pointers) – but in a Dispatches film in June, the narrator did call the case “a fundamental challenge to the law on murder” (go to about 9:20).

Irrespective of the precise phrasing, though, the fact that the case would have generated such a huge change in the law – that it was novel and far reaching, and was a fundamental challenge to the extant law – is pretty obvious.  And it’s for that reason that, I suspect, the case was doomed before it was opened.  The courts can only work within the law as it stands, and even when judges create law, they tend to do so only in the context of established law.  Anything more, and they’re likely to say, “Whoa, matey: this ain’t my role.”

Thus Toulson at para 150 in the ruling:

To do as Tony wants, the court would be making a major change in the law.  To do as Martin wants, the court would be compelling the DPP to go beyond his established legal role.  These are not things which the court should do.  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, representing society as a whole, after Parliamentary scrutiny, and not for the court on the facts of an individual case or cases.

And thus Royce at para. 151:

Some will say the Judges must step in to change the law.  Some may be sorely tempted to do so.  But the short answer is that to do so here would be to usurp the function of Parliament in this classically sensitive area.

And that’s why – as I predicted on this blog before – irrespective of the moral merit of the ruling, it was pretty much inevitable.  And that being the case, you have to wonder what the point was of bringing the case to begin with.

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