Rory Leishman

Rory Leishman

Following a lengthy and sometimes impassioned debate on the euthanasia issue, the British House of Commons resolved on Sept. 11 by the crushing margin of 330 to 188 to reject a private member’s bill to legalize assisted suicide for mentally competent and terminally ill adults.

In a genuine democracy, such a decisive vote in Parliament should settle the matter. As it is, in Britain, as in Canada, unelected and unaccountable judicial activists have proceeded time and again in recent years to second guess and overturn the express will of elected representatives of the people in Parliament on even the most vital questions of public policy.

For example, in 2010, the Canadian House of Commons decisively rejected a bill to legalize assisted suicide by the overwhelming margin of 226 to 59. Regardless, in last February’s disgraceful Carter decision, the Supreme Court of Canada unanimously decreed that all competent adults who are afflicted with enduring and intolerable suffering have a constitutional right to physician-assisted suicide by virtue of the right to life, liberty and security of the persons in section 7 of the Canadian Charter of Rights and Freedoms. Just 12 years earlier in the nearly identical Rodriguez case, this same Court had repudiated this manifestly absurd, purportedly constitutional argument.

The Carter case is an all-too-typical instance of contempt by the Supreme Court of Canada for its own precedents as well as the express will of Parliament. Judicial activists in England have taken note of the Carter judgment. Will they follow up by challenging the legitimacy of the determination by the Parliament of the United Kingdom to reaffirm the long-standing total ban on assisted suicide in English law?

That remains to be seen. In an ominous ruling last year in the case of Tony Nicklinson, a tragically paralyzed and suicidal — albeit mentally competent — adult, the Supreme Court of the United Kingdom held that it had constitutional authority to declare that the ban on assisted suicide in section 2 of the English Suicide Act of 1990 is incompatible with the right to privacy in Article 8 of the European Convention on Human Rights.

Lord Neuberger, the president of the court, maintained in his reasons for judgment in Nicklinson that, “even under our constitutional settlement, which acknowledges parliamentary supremacy and has no written constitution, it is, in principle, open to a domestic court to consider whether section 2 infringes article 8.”

Neuberger had no basis in law for this conclusion. He did not, and could not, cite anything in either the plain language or the records of parliamentary debate on the Human Rights Act 1998, which incorporated the European Convention on Human Rights into English law, to support his assertion that this Act conferred authority on the courts to question the legitimacy of the long-established ban on euthanasia in English law.

Two dissenting justices in Nicklinson, Lords Clark and Sumption, persuasively argued that the courts have no authority to second guess the wisdom of Parliament on vital issues of public policy like euthanasia. In the words of Clark, “judges should not express their own personal views on the moral questions which arise in deciding what is the best way forward as a matter of policy … the imposition of the personal opinions of professional judges in matters of this kind would lack all constitutional legitimacy.”

Former Justices McIntyre and La Forest of the Supreme Court of Canada took the same enlightened view in the disgraceful 1988 Morgentaler ruling, when a majority of that Court struck down all remaining restrictions on abortion in the Criminal Code. Yet today, with the possible exception of the recently appointed Justice Russell Brown, not one member of Canada’s top court can be counted upon to refrain from imposing their personal opinions on moral questions of the law in defiance of the express will of Parliament.

At least, in Nicklinson, the majority of the Supreme Court of the United Kingdom made a minimal concession to the separation of legislative and judicial powers, by postponing any ruling on the legitimacy of the ban on assisted suicide until Parliament had an opportunity to reconsider the issue. Now, after thoroughly considering the diverse opinions on euthanasia by various judges, members of all parties in the House of Commons have voted to reaffirm their determination to protect the weak, the vulnerable and the dying by maintaining a total legal ban on physician-assisted suicide.

Will a majority of the appointed judges on the Supreme Court of the United Kingdom respect this clearly expressed will of an overwhelming majority of the elected representatives of the people in Parliament? Stay tuned.