Constitutional law: Hard cases make…constitutional law?

26 March 2012

The recent ruling by Mr Justice Charles (Nicklinson v Ministry of Justice [2012] EWHC 304 (QB)) brings vividly to life the sometimes arid question arising out of the separation of powers: are there matters on which the courts should not rule because to do so will trespass on the proper functions of the executive and the legislature in a democracy?

Tony Nicklinson has “locked in syndrome” – following a stroke he is paralysed below the neck, cannot speak and needs help in almost every aspect of his life. He has brought proceedings seeking declarations, both as a matter of common law and under the Human Rights Act 1998 that, in effect, it would not be a criminal offence for a doctor to assist him to commit suicide.

As Mr Justice Charles recognised at the beginning of his ruling of the Ministry of Justice’s unsuccessful attempt to have the proceedings struck out, “the underlying issues in this case raise questions that have great social, ethical and religious significance and they are questions on which widely differing beliefs are held, often strongly”. The constitutional issue that this gives rise is to is whether the court is the legitimate forum in which to reach an answer on those questions, or whether this is something to be resolved politically and democratically, in Parliament.

The Ministry of Justice asserted that only Parliament could change the law in the way that Mr Nicklinson wanted it be changed – but it was held that it was at least arguable that the court could also do this. In one sense this is not surprising: it would have been verging on the cruel not to have allowed Mr Nicklinson to take his case to trial. But the terms in which Mr Justice Charles expressed himself are striking, not least where he said: “whilst in general it may be preferable for issues of broad social and moral policy to be determined by Parliament, the fact that they are hotly contested can be a factor in favour of the court intervening..”. If that approach were to be adopted at the trial of Mr Nicklinson’s case it would represent a significant shift by the court in its approach to the constitutional balance of power. 

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