About this sample
About this sample
Words: 824 |
5 min read
Published: Nov 16, 2018
Words: 824|Pages: 2|5 min read
Over the years, the domestic courts of the United Kingdom have faced difficulties in interfering with Parliament’s role in the legislation of human rights’ issues. One of the main difficulties the courts have faced is whether or not they have the supremacy to declare domestic law incompatible with convention rights. The courts however, through the Human Rights Act, do have the power to declare domestic laws incompatible. They therefore should not feel the need to impose limits on their own power because it is their constitutional role to uphold and challenge the law.
The law is meant to work for the people and not against the people, but as seen in the cases on assisted suicide, the law has worked against the people. In these cases the people have been individuals who have wished to end their lives because they have felt that their lives were undignified, full of pain, distressful and intolerable. Statistics have shown that hundreds of people suffering from terminal or chronic conditions commit suicide every year and that about 44% of their loved ones would break the law and help them die, risking a sentence of fourteen years in prison. The law has turned its back on these vulnerable individuals and left them and their families feeling unprotected and alienated. The current law on assisted suicide has therefore been challenged before the domestic courts and the European Court of Human Rights.
Different individuals over the years have challenged the law but none has been successful even after the acceptance of the right to die being included in the right for private and family life as contained in Article 8 of the Convention, proven in the case of Pretty. Pretty, who applied to the European Court of Human Rights after she felt that her article 8 rights had been violated by the government, partially failed in her claim because as the Strasbourg court explained section 2 of article 8 was "designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life". In addition to this, the court explained that it was the role of states to examine the risk of relaxing the law on assisted suicide.
As seen in Nicklinson, the courts denied Mr. Nicklinson both forms of relief for a declaration that it would be lawful for a doctor to kill him or assist him in ending his intolerable life and a declaration that the current state of law in that connection was incompatible with his rights under article 8 of the convention. The majority of the Lords concluded that it was not the role of the courts to act as the final arbiter on whether the current law on assisted suicide should be changed or declared incompatible with the Convention Rights. This case raised a lot of issues regarding the relationship between parliament and the courts and who has the primary responsibility to declare domestic law incompatible with convention rights.
Some of the reasons why neither of the two bodies have declared the law incompatible or changed it is because the courts feel that it is not within their constitutional role to deal with issues of the law that raise questions of such sensitive ethical, moral and social issues. They feel that it would be impinging on the role of parliament considering it is the supreme law maker, but any declarations the courts have granted do not challenge parliamentary sovereignty. On the other hand, parliament has failed to change the law in fear that it would bring in room for more crimes to be committed in the name of mercy killings as well as leave those that are not in the right state of mind to determine how and when they will die, all which does not support the moral values that the state tries to uphold.
However as seen in the past, domestic courts have declared laws incompatible with human rights especially those that have become unfit in the society as time has passed. An example is the ban on homosexuals serving in the armed forces. Such declarations are however extremely important and do have consequences such as the passing of new law but in order for there to be justice the courts need to show deference to parliament in appropriate cases. The courts cannot just turn their backs on unjust laws. The refusal of domestic courts to intervene in the parliamentary process on the grounds of the margin of appreciation leaves room for a lot of injustice for the people who turn to the courts to challenge the law. The courts need to strike a balance between the preservation of life and the privacy and dignity of an individual.
 Human Rights Act 1998
? https://www.dignityindying.org.uk/why-we-need-change/the-facts/?accessed 21st December 2017
 The Suicide Act 1961 s.2
 Pretty v United Kingdom (2002) 35 EHRR 1
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