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Inside the Case: "A right to die?" - Paul Bowen KC · The University of Law Podcast

• 1:00:00
  I'd always said to Tony, look, this is a very, very long shot.
• 1:00:04
  He had always made it very clear that if he was unsuccessful, then he would take his own life in the only way that he could, which was to starve himself to death.
• 1:00:16
  I can't imagine what it must have been like to be in Tony's situation, but I think it might be right to say that this was perhaps the only thing that was keeping him going at that stage was the prospect of being able to successfully establish that the law was wrong.
• 1:00:34
  I don't see the law changing through litigation any time soon.
• 1:00:38
  I don't see there being any solutions which are perfect.
• 1:00:42
  The current law does leave people like Tony in an invidious, awful position It was an honour to run those cases, an absolute honour to work with those amazing people.
• 1:00:53
  But I don't think I'll run that case again.
• 1:00:56
  You are listening to Inside the Case brought to you by The University of Law.
• 1:01:05
  The case of Tony Nicklinson is one of the most important right to die cases in recent legal history.
• 1:01:13
  Tony Nicholson was a British engineer who in 2005 suffered a catastrophic stroke that left him with locked-in syndrome.
• 1:01:23
  He was mentally fully alert, but almost completely paralyzed, unable to speak and dependent on others for every basic function.
• 1:01:32
  He described his life as a living nightmare.
• 1:01:36
  In 2012, seven years later, he went to the high court to seek legal immunity for a doctor who would help him die.
• 1:01:45
  Under UK law, assisting someone to kill themselves, assisted suicide is illegal.
• 1:01:51
  His case was dismissed.
• 1:01:53
  The high court ruled that only parliament could change the law to allow assisted dying.
• 1:01:59
  Faced with this ruling, Nicholson refused foods, fluids, and medical treatment.
• 1:02:04
  He developed pneumonia, and just six days after the court ruling, he died.
• 1:02:10
  His widow Jane took the case onto the Court of Appeal and then to the Supreme Court.
• 1:02:15
  In a landmark ruling with nine justices sitting for the first time because of the importance of the issue, the highest court in the land ruled that it was for parliament to decide.
• 1:02:27
  the highest court in the land ruled that it was for parliament to decide.
• 1:02:33
  More than ten years on, that issue is now before Parliament, where an intense battle rages over whether to change the law.
• 1:02:40
  The barrister who acted for Tony Nicholson and after his death for his widow is Paul Bowen, K.C.
• 1:02:47
  Paul Bowen is a leading practitioner in public and human rights law.
• 1:02:51
  He has appeared over a 35-year career in 24 cases in the UK's highest courts and Unusually, he started life as a city solicitor moving to the bar in 1993 where he built a human rights practice, mainly at Doughty Street Chambers.
• 1:03:11
  He specialised in human rights cases for vulnerable and marginalised clients, including mental patients, prisoners, disabled people, bereaved families and terrorist suspects.
• 1:03:22
  Since Paul's move to Crick Court ten years ago, his public law practice has extended and now includes regulatory and financial services work, although he remains at heart a public law and human rights specialist.
• 1:03:35
  He also sits as a deputy judge in the High Court's administrative court.
• 1:03:40
  I began by asking Paul Bowen how he came to be instructed for Tony Nicklinson.
• 1:03:48
  I was instructed by a brilliant solicitor who, Saimo Chahal, who I had worked with for several years on other cases.
• 1:03:57
  In fact, we did the Debbie Purdy case together.
• 1:04:00
  So that had been a big right to die case.
• 1:04:04
  Just to remind us, how much earlier was that?
• 1:04:06
  Have that been quite the...
• 1:04:07
  So that was 2009, 2010.
• 1:04:11
  And that had been, in fact, was the last case in the House of Lords.
• 1:04:14
  That was the last case they gave their judgment.
• 1:04:17
  Before the Supreme Court was set up.
• 1:04:19
  Before they transferred over to the Supreme Court.
• 1:04:22
  And Debbie Purdy had multiple sclerosis in late stages.
• 1:04:28
  She wanted to be able to know that she could travel to Switzerland for an assisted death and wanted to know if her husband, Omar, would be prosecuted if he were to assist her.
• 1:04:45
  And the CPS, we knew, was not prosecuting people in these circumstances but didn't have any policy published explaining what factors they took into account in these sort of circumstances.
• 1:04:57
  It was all discretionary, was it?
• 1:04:59
  Yeah, it was all...
• 1:05:00
  As far as the outsider was concerned.
• 1:05:01
  As far as it... You didn't know.
• 1:05:04
  It might be one prosecutor might make one decision, another might make another.
• 1:05:06
  And so what we persuaded eventually, the House of Lords to do, was to find that the absence of a policy was a breach of Article eight of the European Convention on Human Rights, the right to private life.
• 1:05:23
  So that was a big stepping stone.
• 1:05:25
  Yes, I mean, they did then issue some guidelines, didn't they?
• 1:05:27
  They did, yes.
• 1:05:28
  The DPP, that is.
• 1:05:29
  They did. And of course, what that meant is that there was a partial legalisation of assisted dying in those circumstances.
• 1:05:36
  I mean, people had been travelling to Switzerland for years and there'd been no prosecutions.
• 1:05:43
  And so people knew that there was this relaxation that had happened.
• 1:05:48
  Nonetheless, it was a risk, wasn't it, for people?
• 1:05:49
  But of course it was a risk.
• 1:05:51
  And of course the real problem, and this was the starting point, I suppose, for Tony's case, is that if you were as disabled as Tony, travelling to Switzerland was not an option.
• 1:06:00
  So that case obviously put you in the media and other spotlight.
• 1:06:06
  Yes, so Saimo and I did that case together.
• 1:06:09
  And then when she was approached by Tony Nicklinson's family, she turned to me.
• 1:06:16
  So did you then both travel down to see him?
• 1:06:19
  What happened then?
• 1:06:20
  Yes, we did.
• 1:06:22
  I think I went separately from Saimo.
• 1:06:24
  I think she had already been to see him.
• 1:06:26
  I remember travelling down by train to Melksham near Bath and spending the afternoon with Tony and Jane, his wife and their children, their two daughters, Lauren and Beth, and mostly talking to them about their experiences of it.
• 1:06:44
  But Tony was able to communicate in very simple terms, very slowly.
• 1:06:50
  Just describe his condition at that time.
• 1:06:52
  It had been a while, hadn't it, since he had a stroke?
• 1:06:55
  He had what's called locked-in syndrome, so essentially he could only communicate by blinking.
• 1:07:04
  And so he had...
• 1:07:07
  He was quite a young man, wasn't he, at this time?
• 1:07:10
  He was 50s.
• 1:07:10
  Yes, 44, I gather.
• 1:07:12
  He'd been in that situation for several years by then.
• 1:07:16
  And had gradually but very firmly reached the conclusion that it was unbearable to live in that state.
• 1:07:29
  And how did you find him?
• 1:07:31
  I mean, he did communicate a little bit, as you say, with mechanical means.
• 1:07:35
  What came across...
• 1:07:36
  And this is, in fairness, more from talking to his family, what kind of man he was.
• 1:07:41
  I mean, it's very difficult to form my own view in that limited period, but I felt...
• 1:07:50
  I did feel from him a sense of resolve that his family talked to as well.
• 1:07:57
  He'd been a very physical, very big rugby fan, like skydiving, very active man.
• 1:08:05
  He was an engineer, wasn't he? A civil engineer.
• 1:08:08
  And he had lived a great life.
• 1:08:11
  He saw his condition as having taken that life away from him.
• 1:08:20
  And had decided that that was just not what he wanted.
• 1:08:25
  He didn't want to carry on.
• 1:08:26
  Was he, as far as you could tell and as far as the family said, was he deteriorating all the while?
• 1:08:31
  Well, I think it's right to say that his condition would eventually have...
• 1:08:38
  He would have died eventually and younger than he would have done had he not had that condition.
• 1:08:43
  And in the end, what he died from was pneumonia.
• 1:08:50
  But that was after he had, in fact, refused food and nutrition.
• 1:08:56
  On this first visit, how did it affect you?
• 1:08:59
  It must have been quite a thing.
• 1:09:03
  Of course it was.
• 1:09:04
  I recognised the enormity of what we were trying to achieve.
• 1:09:09
  What we had achieved in Debbie Purdy's case had been a small carve out.
• 1:09:14
  And what we were trying to do here was a full frontal assault on both the law of murder and on the law of assisted suicide.
• 1:09:22
  So we didn't underestimate the significance of what it was.
• 1:09:24
  It was a big challenge and it hadn't been done before and nothing like that had been done, had it?
• 1:09:30
  Correct.
• 1:09:31
  So did the family with the family realistic about prospects?
• 1:09:34
  Were you realistic about prospects?
• 1:09:36
  Of course I was. I had to be honest with them.
• 1:09:39
  And I had to be honest with the legal aid agency and I had to make very clear that these were arguments that were novel and bold, as a judge might put it.
• 1:09:49
  So you came away and you must have felt, it's obviously a trite to say almost, you must have felt desperately sorry for the man.
• 1:09:59
  What were your own personal feelings about the case and whether you thought it was right to bring the challenge?
• 1:10:03
  Yes. I mean that's an interesting question.
• 1:10:07
  I've always been very clear about all these cases that I've done that I brought them as a barrister and not as a campaigner.
• 1:10:14
  And that remains my position.
• 1:10:19
  And having said that, I had my own family experience which had for me left me with a conviction that people in dire emergency need to be able to turn to those that they love and to ask them to help bring about the end.
• 1:10:41
  So you were sympathetic to the case he was making or you were going to make on his part?
• 1:10:47
  Yes. I mean I certainly had no moral or religious convictions that would have made that difficult. I saw it purely as a human rights case.
• 1:10:58
  Although out of interest, I mean even if you had had, would you still have taken the case?
• 1:11:02
  Well, I'd like to think I would have done. That's a difficult counterfactual, isn't it? But I hope I would have done.
• 1:11:12
  Because as you say, you were looking at it as a barrister, not someone promoting a particular cause.
• 1:11:17
  Correct.
• 1:11:18
  So you took the case, it came as you say in the High Court, in the Divisional Court, did it?
• 1:11:22
  Well, what happened is, I mean ordinarily if one was bringing a challenge to the law, particularly if you're bringing a declaration, seeking a declaration of incompatibility as we were in relation to Section 2 of the Suicide Act, that would be brought by way of judicial review.
• 1:11:42
  But I'd spent many years acting for applicants in the administrative court doing judicial reviews, human rights, but I also did quite a lot of work in the family division, what later became the Court of Protection, involving cases of difficult medical assistance cases, including withdrawal of treatment cases.
• 1:12:05
  And I was convinced that if we were to get anywhere with this case, we needed it to be firstly in front of a family judge who was much more comfortable with making life and death decisions.
• 1:12:25
  More au fait with those kinds of issues?
• 1:12:27
  Yes, just more comfortable with them, but also the kind of procedures that we would have in the family court would make it much easier to have evidential hearings than we would if we brought it by way of a straight judicial review claim.
• 1:12:44
  So you took that quite key decision to lodge it in the family division?
• 1:12:48
  Well, we brought it initially as a Part 8 claim - a claim seeking a declaration in relation to the meaning of the law, essentially, but we were trying to get it, and we got it in front of a family judge, Mr Justice Charles, who was, as we anticipated, sympathetic, but we slightly got hijacked while we did get it.
• 1:13:07
  We lost the argument that it should be heard in the family division, and it did then end up in front of a divisional court, sitting effectively in the administrative court.
• 1:13:17
  So we never got to the point that we'd hoped to, where we could start hearing evidence, and that essentially was the real problem with the case thereafter.
• 1:13:28
  So it was transferred, what, because they thought it was more suitable?
• 1:13:32
  Yes, essentially.
• 1:13:33
  And who was it transferred before? Who was the judge?
• 1:13:36
  So, well, we had a divisional court that was led by the late Lord Toulson, Roger Toulson, who was a brilliant, I mean utterly brilliant lawyer.
• 1:13:46
  But what I didn't realise until a few days before the hearing was himself a committed Christian.
• 1:13:54
  And he not only was a committed Christian, he was the chair of a lawyer's Christian group that was associated with that was associated with Care Not Killing, who were one of the interveners in the case.
• 1:14:08
  Well, was that then suitable for him to sit on the case?
• 1:14:10
  Well, we didn't think it was, so we made an application to him to recuse himself, which you can imagine wasn't a very easy application to make.
• 1:14:19
  No. How did he take that?
• 1:14:21
  Well, he was charming about it, but dismissed the application.
• 1:14:26
  Could you then have challenged that refusal?
• 1:14:27
  Well, you know, one of the things that we then thought about when we did end up going to the Supreme Court is whether we should have appealed that.
• 1:14:36
  But to be honest, we had enough on our plate already.
• 1:14:39
  So you went ahead with Mr Justice Toulson?
• 1:14:40
  So we went ahead and we lost the case on essentially the basis that it simply was not appropriate for the courts to be even adjudicating on the issue.
• 1:14:53
  Did you think he was unbiased about it and fair in his reason?
• 1:14:58
  I wouldn't for a moment suggest that it was anything other than scrupulously fair.
• 1:15:05
  And the perspective that the final judgment that this was not a matter for the courts but for Parliament was entirely doctrinal.
• 1:15:13
  I mean, there was nothing unusual about it.
• 1:15:15
  No.
• 1:15:16
  What I was asking for was more unusual.
• 1:15:17
  It was a fundamental position. Who was arguing on the other side to put that case?
• 1:15:21
  So at that stage, it was David Perry, King's Counsel now, leading James Strachan.
• 1:15:29
  And essentially that became the whole question.
• 1:15:32
  Could the courts even adjudicate on that issue?
• 1:15:35
  That was the crunch.
• 1:15:36
  That was the crunch point. And that effectively was an argument that we won in the Supreme Court.
• 1:15:42
  We got a little bit further when we got to the Court of Appeal where the Court of Appeal said, well, in principle, yes, the courts could hear a challenge like this, but it's not appropriate in this case.
• 1:15:50
  I mean, Lord Toulson had been more hard-lined, just saying it was simply not justiciable.
• 1:15:56
  So we had the Divisional Court hearing.
• 1:15:58
  Then we appealed that there was some question about whether we should try and get a leapfrog appeal to the Supreme Court.
• 1:16:03
  But I took the view that better to have gone to the Court of Appeal because if you haven't gone to the Court of Appeal, it gives the Supreme Court another reason to kick it out because it should have been considered again.
• 1:16:21
  The case had failed in the High Court.
• 1:16:24
  Just days later, Tony Nicholson tragically died.
• 1:16:29
  He decided to starve himself to death and developed pneumonia.
• 1:16:34
  His wife Jane and the legal team had to decide whether to continue the battle and if so, what arguments they could now best deploy.
• 1:16:51
  You made a decision you would go to the Court of Appeal, but before you even got there, very tragically, Tony Nicklinson died.
• 1:16:59
  Can you tell me about when you heard of that and your reaction to it?
• 1:17:05
  Well, it didn't surprise me.
• 1:17:08
  I mean, I'd always said to Tony, look, this is a very, very long shot.
• 1:17:13
  And he had always made it very clear that if he was unsuccessful, then he would take his own life in the only way that he could, which was to starve himself to death.
• 1:17:24
  Quite shocking, really.
• 1:17:25
  Yes.
• 1:17:27
  So you weren't surprised when you found out.
• 1:17:31
  No, I wasn't surprised.
• 1:17:31
  I wasn't surprised.
• 1:17:33
  And I certainly couldn't have expected Tony to have held on, you know, on my advice that, well, you know, it might make it easier if you're still around for us to succeed when we get further on.
• 1:17:47
  And it was only a matter of weeks later, wasn't it, after the decision?
• 1:17:51
  It was.
• 1:17:51
  It was.
• 1:17:52
  I mean, it was I mean, I can't imagine what it must have been like to be in Tony's situation, but I think it might be right to say that this was perhaps the only thing that was keeping him going at that stage was the prospect of being able to successfully establish that the law was wrong.
• 1:18:12
  Did you yourself tell him that this application had been unsuccessful, the High Court application?
• 1:18:18
  No, I think Saimo must have done that.
• 1:18:20
  Right.
• 1:18:21
  Obviously, he would have been it would have been a big blow.
• 1:18:23
  Yes. And so I didn't I didn't meet him again.
• 1:18:26
  And the next time that I met Jane and Lauren and Beth was at Tony's funeral, which was a few weeks later.
• 1:18:33
  And I suppose there was a question about whether they would even want to go on with it, was that or was that never in doubt?
• 1:18:39
  Jane was very clear that that was what she wanted to do.
• 1:18:42
  So the the only doubt really was whether we'd be allowed to take take the case on with with her as effectively substituting as the applicant.
• 1:18:52
  How important was it to you personally that the case should be continued?
• 1:18:56
  I had always felt that if we were going to succeed, we were probably only going to succeed in the Supreme Court.
• 1:19:07
  So and I mean, this is what I've advised clients in cases that I've done over the years where we've been trying to change the law is not to see the first decision as necessarily the end of the process.
• 1:19:23
  So I mean, obviously, a degree of disappointment that that we weren't going to be able to bring the case in quite the same way.
• 1:19:30
  And it did have an impact on on our strategy.
• 1:19:34
  But I've respected his decision.
• 1:19:36
  Yes. So you went to the Court of Appeal and I'd like to ask you about that because you did change tack, didn't you? Somewhat.
• 1:19:42
  Analysts talk about how the High Court focused more on the criminal side of things and how you wanted a change to the criminal law.
• 1:19:50
  And then you went on to look more at the human rights aspects. You tell me. Well, there were there were two.
• 1:19:56
  There were two strands to the argument that we took in the in the High Court.
• 1:20:02
  One was based on common law. One was based on the Human Rights Act.
• 1:20:07
  The Human Rights Act claim sought a declaration of incompatibility under the Human Rights Act in relation to Section two of the Suicide Act, which makes it a criminal offence for a person to assist another person in in in a suicide.
• 1:20:20
  So that was relatively straightforward and orthodox.
• 1:20:24
  And that is eventually the only thing that went forward to the Supreme Court.
• 1:20:29
  But the the other arguments, which in some senses I regret that we didn't take further, were were perhaps more more interesting and perhaps perhaps more rooted in in a kind of common law principles, because they were based on the the doctrine of necessity, which is an old common law concept which can operate as a defence to what would otherwise be a criminal offence. So if you were to take, for example, the conjoined twins case, one of whom was essentially parasitic on the other so that they would both die if they weren't separated.
• 1:21:09
  But by separating them, the smaller of the two twins would inevitably die. So the question that the Court of Appeal eventually had to decide was whether it would be a whether it would be an offence of murder to to separate the twins, knowing that the act of separating them would kill the the younger of the two.
• 1:21:31
  And the Court of Appeal held that it wasn't So that was that was one leg, if you like, of the of the the argument. We we we sought to persuade the court that necessity was available as a as a defence even to a criminal offence as serious as murder, where it was being...where a step was taken to avoid a greater harm.
• 1:21:59
  So in this case, the greater harm was that a person should be left in in agony or in unbearable suffering.
• 1:22:09
  And our argument was that necessity justified bringing to an end a person's unbearable suffering.
• 1:22:17
  And not only were we able to point to analogous cases in this jurisdiction, but we were able to point to the very point having been accepted by the Dutch Supreme Court in a series of cases back in the 1990s, where the Dutch Supreme Court accepted that the Dutch equivalent of the law of necessity had justified a doctor in assisting an individual to take their life.
• 1:22:43
  And that that had then led to the Dutch legislation, which which which effectively codified those laws.
• 1:22:52
  And we could point to Glanville Williams, the sort of doyenne of of criminal law, who had written in his book in 1957, The Sanctity of Life and the Common Law.
• 1:23:05
  He had written that in principle, the defence of necessity should be able to extend to to a case such as this.
• 1:23:14
  But once I suppose Tony Nicholson had died, you could obviously no longer argue it even in a theoretical way, could you? Or could you?
• 1:23:23
  Well, we could, because I think by that stage we had we had taken on board another claimant, Paul Lamb, who was not as disabled as Tony.
• 1:23:32
  first about Paul Lamb.
• 1:23:34
  And so his case was was analogous to Tony's, but but it was never really quite as high profile.
• 1:23:42
  And it was not as extreme in terms of the facts. And I mean, it's it's a terrible thing to say.
• 1:23:52
  But but of course, when one is trying to persuade a court to to of your correctness of your your submissions, the facts are important, you know.
• 1:24:04
  And after Tony had died, there were other cases.
• 1:24:11
  But in many senses, that was the time if if the law was going to change, it was going to be then because for other the law has since...
• 1:24:21
  Gone...if not backwards, has evolved in other directions.
• 1:24:25
  So so coming back to your your strategy and the prongs of your arguments, how did you then continue the case or decide to continue it at the Court of Appeal?
• 1:24:36
  So what so what had happened is is that Tony had died. There was there'd been another development as well, which is in Canada, the the Supreme Court of British Columbia, in a magisterial judgment by Madame Justice Lynn Smith had had given a judgment in a very similar case series of cases in Carter was the lead claimant, Carter in Canada, that similar laws, murder laws and and assisted dying laws were a violation of Section Seven of the Canadian Charter of Fundamental Rights and Freedoms.
• 1:25:13
  Now, that was in very similar terms to the human rights legislation here, but not identical.
• 1:25:20
  Well, you must have thought that strengthened your case considerably.
• 1:25:23
  Well, it certainly heightened the the the importance of focusing on those arguments that were most likely to be successful.
• 1:25:34
  And it and it and and so from that point on, we saw the human rights arguments as being the ones that if if anything was going to succeed, the stronger card, it was the better one to pursue.
• 1:25:44
  And I and I and I think I still think, I mean, if we had if the strategy had been successful and there's no reason really to suggest that that it couldn't have been if we had got in front of a judge in the family division and we've been able to call evidence and we had had a proper hearing. I could see a judge having decided in this jurisdiction that necessity did justify that that that that course of action.
• 1:26:14
  And who knows? Maybe it will. Another day. Exactly. Yet to play for. Anyway, so you went on to the Court of Appeal. The case was then thrown out again, thrown out again.
• 1:26:23
  And and I mean, you know, that there's that old there's that old saying about if at first you fail, try again, fail again, fail better.
• 1:26:36
  And that was very much the story of our of the litigation because we did fail at every stage, but we failed a little bit better each time.
• 1:26:44
  Could I just ask you financially, were you doing this pro bono? I did an awful lot of work for nothing. Did you?
• 1:26:50
  I mean, we did have we did have legal aid. You did at a time when I don't doubt very much whether it would be available now.
• 1:26:59
  But it but but but I think we did the whole case legally. I did. I did some other cases pro bono because it would have been a very costly exercise all the way up to the Supreme Court.
• 1:27:11
  And it was a very, very significant period of my life that I spent on these cases and and hard for your home life.
• 1:27:23
  Well, I mean, you know, I worked hard. I had I had a small family. I was I worked from home a lot. So they saw a lot of me.
• 1:27:36
  Even if it was only from the other side of my desk. But yes, no, I couldn't say that it had a harmful impact on my family.
• 1:27:45
  I think what what did I mean, eventually there came a point where where after I'd finished this this round of cases, I did feel that perhaps the time was right for somebody else to pick up the pick up the cudgels.
• 1:28:02
  Well, actually, what I thought was for Parliament to do something about it. Yes.
• 1:28:06
  Yet again, the application failed.
• 1:28:09
  Lord Dyson, Master of the Rolls, with two other Appeal Court judges, rejected it.
• 1:28:16
  The central legal issue was a constitutional one.
• 1:28:20
  Was it right for the courts even to rule on such a fundamental issue of social policy, or was this a matter for Parliament?
• 1:28:28
  OK, so just read from that line.
• 1:28:29
  The Court of Appeal thought it should be for Parliament.
• 1:28:32
  So this was an issue now that the Nicklinson family would take to the highest court in the land, to the Supreme Court.
• 1:28:43
  So Lord Dyson and no doubt two other judges rejected the they did.
• 1:28:50
  And that wasn't again, that wasn't that surprising because, as I've said, the the whole question was about whether the court should even grapple with these issues.
• 1:29:00
  And like I say, when we when we did finally get to the Supreme Court, that that was the central that was a central question.
• 1:29:10
  And it was a huge constitutional issue because if they hadn't gone along with that, then the whole thing wouldn't even been looked at in terms of the merits of it, would it?
• 1:29:19
  Well, you see, where we got to, we had a panel of nine in the Supreme Court, which is very unusual. They had only ever had one case with a panel of more than nine.
• 1:29:34
  In fact, that was after Nicklinson. That was in the Brexit litigation. So nine, I think, at that stage was the was the largest panel that had ever been.
• 1:29:40
  So it was quite unprecedented in a number of ways. Yes. Being one of them. Lord Neuberger was chairing the. That's right.
• 1:29:48
  Panel, wasn't he? That's right.
• 1:29:50
  And you had had you been in the Supreme Court before yourself? I had, yes. And I'd been in front of Lord Neuberger. And no, I mean, I've been I've been in the House of Lords of Supreme Court over my career, twenty three, twenty four times.
• 1:30:05
  I was I was comfortable, but I mean, it was a big case. Exactly. Everyone was watching it. Everybody was watching it.
• 1:30:14
  And I remember talking to David Pannick, who Lord Pannick, who had led me in the Purdy case and was now appearing for one of the interested parties.
• 1:30:24
  And we were having a little bit of a chat. You say, well, you know, you're a big boy now. You can do this on your own.
• 1:30:34
  You know, it was it was an extraordinary experience. Was it nerve wracking? Of course it was. But but I had I had a very good junior Guy Vassall-Adams, who who had come down to my home a few weeks beforehand.
• 1:30:49
  And we'd we had we had gamed it out. We spent the whole day. I remember with him pretending to be one Supreme Court justice or another while I sort of went through our submissions and and.
• 1:31:00
  Butting back the questions and answers.
• 1:31:03
  And so we had, you know, I mean.
• 1:31:06
  The old adage of, you know, the only thing you have to do is prepare, prepare, prepare.
• 1:31:11
  I'd certainly done that. But yes. But no, of course, it was it was an extraordinary case to be involved. Yes.
• 1:31:18
  And of course, it had the sort of the intellectual counterpoint to what turned out to be the majority, which was led by Lord Sumption, who were in a minority on the on the big constitutional question.
• 1:31:34
  But as we'll see, eventually his. Yes.
• 1:31:38
  The one that's that's been carried forward in cases since then.
• 1:31:44
  But so the big question of constitutional law that that we had to persuade the court of first before we got anywhere else was was this.
• 1:31:55
  It was acknowledged we had to acknowledge that if this case went to Strasbourg, the European Court of Human Rights would say that whether a country introduces the law of assisted dying.
• 1:32:06
  Or doesn't introduce the law of assisted dying falls within that country's margin of appreciation.
• 1:32:15
  And this is a concept that has been developed. In other words, it's within the prerogative to deal with it themselves.
• 1:32:22
  It's for them to decide. Strasbourg Court is not going to say that they're that they've acted...
• 1:32:28
  Overstepped the mark. Incorrectly. That they've acted disproportionately. That is a decision for the domestic authorities.
• 1:32:34
  And that had been the decision in [Diane] Pretty.
• 1:32:38
  And we had no doubt that that was what the Strasbourg Court would say if they were presented with this question again.
• 1:32:44
  And indeed, they have since reached exactly that conclusion in decisions since then.
• 1:32:48
  The big question that we were trying to persuade the Supreme Court of was this bearing in mind that the domestic courts are in themselves part of the domestic authorities.
• 1:33:01
  So the domestic courts could conclude that the legislation was incompatible with human rights, even if the Strasbourg Court would have said otherwise.
• 1:33:11
  Correct. So that was a big point. That's a big point. So let's just deal with that point first. So what did the court decide on that? Remind us.
• 1:33:17
  So on that point, we won. Yes. By a majority of five to four. Yes. Yes. Well, it was very narrow. It was.
• 1:33:25
  It couldn't have been narrower.
• 1:33:27
  And as I if we come to it, it's since been overturned on that point. So but that was the big that was the big constitutional point.
• 1:33:35
  So, yes, they did have the right to look at it. They did. And then then they went on to consider the question of whether they should make a declaration.
• 1:33:43
  We get what whether they should decide that it's incompatible or not. And on that, we lost seven-two. So I don't as I remember it, Lord Neuberger and others were saying, really, it was for Parliament.
• 1:33:59
  Well, they accepted in principle. I mean, what was interesting about it is they said, well, two of them, Brenda Hale and and the late Lord Kerr, held that it was something that they could decide. And they went on and said that it is incompatible with Article eight. And they would grant a declaration of incompatibility.
• 1:34:20
  The other three who had been in the majority on the big constitutional point said that it's not for us now to decide it because Parliament is actually seized with the issue.
• 1:34:33
  Lord Falconer's bill was in front of Parliament at that time. Was that the main reason? Yes, they said that they said and what they effectively did was give them give Parliament a shot across the bows.
• 1:34:45
  They did. And I think they gave me it's ironic considering now because we're talking when this was all happening, was was 12 years ago, 2014.
• 1:34:54
  Correct. And they said we'll...Parliament, as you say, is seized of it and we'll wait for Parliament to act? Yes. And what we were doing as lawyers, we recognised that the that what the judgment had provided us with was a template.
• 1:35:10
  So that if Parliament didn't didn't legislate, then we could bring the right case back after Parliament had done had had failed to deal with the point, if it if it failed to deal with the point and give the courts another another go.
• 1:35:26
  And that was explicitly what what Lord Neuberger certainly was anticipating when he when he gave his judgment.
• 1:35:33
  So so what do you feel then about how things have turned out since? I mean, well, we don't have a change in the law.
• 1:35:41
  Well, what what what did happen is, yes, the Falconer bill. I'm not sure what's the Falconer bill at that point.
• 1:35:47
  It was because because I can't remember whose bill it was at that stage. But anyway, that one didn't didn't get very far at all.
• 1:35:57
  So we we were ready to bring some further claims. That's to say, we, Saimo and I, we'd been working on on this issue.
• 1:36:07
  And she had already been contacted by other individuals in the same or similar situation.
• 1:36:13
  And I think it's really important to recognise that and I think this is one of the big failings on the part of us as as the as the litigators, that there was a split between the two groups that were litigating this.
• 1:36:30
  There was there was the the group that that Dignity and Dying supported and they were trying to limit the extent of any human rights challenge to the the Falconer bill.
• 1:36:51
  And that was all they thought that they needed to achieve. And those like us who were representing individuals who didn't fit into the 12 month term illness, who were looking at a wider category.
• 1:37:12
  So you're you're talking now you've gone outside the court, you're looking at those who are less litigating or rather legislating now, really, are you?
• 1:37:19
  No, I'm looking at those who are litigating because I mean, the problem arose in in in the case of Nicholson itself, because we, the Nicklinson team and the Paul Lamb team were looking for a wider definition of incompatibility, which which was not limited to those who were terminally ill with 12 months or fewer to live. And who was arguing for the more limited version?
• 1:37:45
  Then the Dignity and Dying intervened.
• 1:37:48
  And then another case by somebody who was known only as Martin, who also intervened, they were seeking a more limited declaration.
• 1:37:59
  And this formed the basis of the bill, Lord Falconer's bill, didn't it? Correct.
• 1:38:04
  Yes. So that it actually the bill had it proceeded wouldn't have helped somebody like Tony Nicklinson at all.
• 1:38:10
  Wouldn't have helped him anyway.
• 1:38:11
  Would have helped at all. Because just to remind people that bill, you had to have only six months to live. And there were other kinds of safeguards, which meant that he wouldn't fall into the category.
• 1:38:25
  He wouldn't. And he wouldn't fall within the category of the current bill either.
• 1:38:28
  Yes, right. Well, exactly. So and I think I think so when you say the big failing, can you explain what you mean? And this is not to cast blame on either side, but the failing in the sense that there was a split among those who were seeking to to bring about a change.
• 1:38:49
  And I think that that undermined both sides of it, both parties who were arguing the cases, I think their cases were undermined by the fact that there wasn't unanimity of approach. I mean, one can see the pragmatic reasons for it, because I think Lord Falconer and his supporters would have said, if you go for a wider thing, there's no chance of getting this through Parliament.
• 1:39:13
  And I know Dignity in Dying had taken that approach very firmly. And because of course, they had supported Debbie Purdy's case, for example, but they didn't support Tony Nicklinson's case.
• 1:39:28
  And, you know, if perhaps if one were to go back and do it all again, one would have found that somebody who had 12 months or less to live and had limited it to that particular category and everything else.
• 1:39:42
  And everything else had been replicated.
• 1:39:45
  Would that have succeeded at that time?
• 1:39:47
  Who knows? Similarly, if everybody had got behind Tony's case and had and had argued for the wider challenge, as they did in Canada, for example, so in[Kay] Carter in Canada, they went for the wider option.
• 1:40:00
  And every single group that were involved in this issue coalesced around that one case. So there was this unanimity of view and approach. And I just think from a it would be a very interesting case study for strategic litigation to to to identify which cases succeed, where everybody's singing from the same hymn sheet and which ones fail when they when they don't.
• 1:40:29
  And I think it's likely to be. And now we've got a second attempt, a private member's bill going through, the Leadbeater bill. What's your view about whether Parliament has really failed the courts in this?
• 1:40:45
  I mean, the Supreme Court threw down the gauntlet and said it's for you and it hasn't happened.
• 1:40:50
  Funnily enough, I went and I went and gave evidence to the Joint Committee on Human Rights after the bill had gone through the House of Commons and as it was going through the House of Lords and the another lawyer who was giving evidence there was Lord Carlile of Berriew, who is implacably opposed to any relaxation of the current prohibition on assisted suicide.
• 1:41:19
  And he, as I understand it, is one of five peers who have between them put down over a thousand amendments in the House of Lords, which means that effectively, because they don't have a guillotine in the House of Lords, which they do in the House of Commons.
• 1:41:39
  That's to say a Speaker who can say, right, well, that's as much time as you're going to get. You've got to you've got to vote on it. The peers can can talk it out. And that's clearly what will happen.
• 1:41:50
  That is what's likely to happen. Now, I'm not going to offer any views about whether that's right or wrong. I was listening to Ken McDonald [KC] and Tim Owen [KC] on this on their podcast the other day.
• 1:42:03
  And Ken was saying that it was disgraceful. And I mean, he's a peer so he can he can say that. But it but it does throw up the the difficulties of of legislating in these very difficult moral and ethical issues.
• 1:42:22
  And, you know, that is that that is just part of our that's how our system works.
• 1:42:29
  The question is, is it should it be that way? I don't have a view on that. Is this the end? I doubt very much whether that will be the end.
• 1:42:39
  Because I think that that whether it happens with this bill or another bill, this this this will eventually end up being legislated for.
• 1:42:50
  Do you think we would be in a different position or something might have happened sooner had the courts made the declaration of incompatibility when you took it up to the Supreme Court and if they'd said this is incompatible with human rights, then the government would have had to have acted. Would it not?
• 1:43:06
  I think so. I think I think that would have had two consequences. One is that the immediate one that, yes, it would have concentrated Parliament's minds in a way that that that the shot across the bows didn't.
• 1:43:19
  And they wouldn't have to, of course, legislate, but there would have been a very significant pressure to legislate.
• 1:43:29
  But that counterfactual is very difficult to to countenance anyway, because there wasn't a majority in Parliament at that time in favour of a change in the law.
• 1:43:37
  So maybe the bill still would have failed. I do think that had they done that, had the Supreme Court done that, it would have led to even more of a backlash than there has been to the the Human Rights Act as a as a kind of means of of of legislating through litigating, which is which has been a theme that we've we've seen in recent years.
• 1:44:08
  Even though they didn't give a declaration of incompatibility, that big constitutional decision that they made was still a very big step in terms of of constitutionalising human rights law.
• 1:44:21
  It was, but it wouldn't it couldn't have been used as a stick by opponents of the Human Rights Act to browbeat and to say demand change and to batter the courts or judges with.
• 1:44:33
  Well, I mean, what what has happened is that the the the Supreme Court then is a very different Supreme Court than what we have now.
• 1:44:42
  I mean, there are certain members who are still there, but it and it is and there has been a recognition within the Supreme Court that this is a very hot political issue.
• 1:44:56
  And you can be sure that the judges are are are being more careful about how far they are prepared to go.
• 1:45:07
  And I mentioned earlier that that that big constitutional point in Tony's case that we had won has since been overturned only a few years ago in a case called[Christie] Elan-Cane, where when the current Supreme Court in actually a very short judgment.
• 1:45:25
  And dealt hardly at all with the issue as it was articulated in Nicklinson and simply said it is a heresy, essentially, that the domestic courts can overturn or can grant a declaration of incompatibility in relation to legislation that Strasbourg Court would would leave intact.
• 1:45:46
  So they have wrote back substantially on that more conservative position.
• 1:45:51
  And that's why I say that, you know, that point having gone, that was the only way that one could have succeeded on the human rights claim.
• 1:46:01
  So so because of that, you do you feel there's any chance, then, of movement on this in the near future?
• 1:46:08
  Well, I I mentioned earlier that there were two reasons why I didn't see any prospect, certainly anytime soon, of litigation succeeding if Parliament don't pass this bill.
• 1:46:22
  One is that domestic development in Elan-Cane where that window that was opened up in Tony's case has been slammed shut.
• 1:46:30
  So if Strasbourg aren't going to intervene, then the domestic courts can't intervene.
• 1:46:35
  And there's been two significant cases in Strasbourg, one, a Belgian case, another case from Hungary, the Belgian case, the court was being asked to to decide that that a very permissive regime breached Article Two.
• 1:46:53
  And they said, no, it's it can be very, very permissive, but it's still within the margin of appreciation.
• 1:47:00
  So there's no breach of the right to life in those in that case.
• 1:47:05
  So that was a case brought by an opponent of a sister dying saying this is too permissive.
• 1:47:10
  And they said that's for the domestic courts.
• 1:47:13
  And then another case, which you'd like is its poll, called Karzai and Hungary, were a very restrictive regime, much more restrictive than our current laws here, was found not to breach Article Eight.
• 1:47:25
  So the climate has significantly shifted.
• 1:47:28
  I think, I mean, the legal climate and perhaps the political climate.
• 1:47:32
  As far as as far as the I mean, it's fair to say that Strasbourg has been consistent, that there's a wide margin of appreciation and they have never found that the laws of a particular country within the Council of Europe, member states, has breached Article Eight or Article Two because of the existence of the law. They found little bits, aspects of it may breach the convention, but never found that the system as a whole is that.
• 1:47:58
  Strasbourg may have stayed the same, but the domestic courts.
• 1:48:01
  Domestic courts have definitely been more careful, I think it's right to say.
• 1:48:06
  And I think that's in the light of a political climate that's changed as well in terms of how positively people, particularly some politicians, see human rights as a result.
• 1:48:17
  Indeed. So as far as you're concerned, you see no hope of any change in the immediate future.
• 1:48:25
  Look, they've taken the brick bats already, so there's no reason why they're backed down.
• 1:48:31
  I mean, look, I have enormous respect for the people who are opposed to this as being the solution.
• 1:48:37
  to this as being the solution.
• 1:48:38
  And I don't see there being any solutions which are perfect.
• 1:48:43
  any solutions which are perfect.
• 1:48:45
  I think it's incredibly difficult.
• 1:48:48
  Incredibly difficult. You know, I always found that the most powerful counter-argument was put by Jane Campbell, Baroness Jane Campbell, who I knew, I mean, I know, and I work with.
• 1:49:04
  But it's fair to say that the human rights that assisted dying issue meant that we didn't really carry on our relationship.
• 1:49:16
  But her opposition, and lots of disabled people for the last word, not all disabled people, but her opposition is that once you make assisted dying an option, then people will start to expect that that is the option you should choose if you are very severely disabled.
• 1:49:38
  And that it is selfish of you. I mean, I'm putting it at its highest.
• 1:49:42
  Yeah, yeah, sure.
• 1:49:43
  But this is how either people will feel or some people will make them feel, who knows?
• 1:49:48
  But that it is selfish to continue to expect society to provide you with support with your disabilities rather than to take the option of ending it all.
• 1:50:03
  And whether that is realistic or not, I can see that it is a realistic fear that people will have.
• 1:50:12
  And when resources are very tight, when budgets are being squeezed, when people are being told that you can have a carer for one hour a week, even though you need one for eight hours a day, then those kind of considerations start to be more pressing.
• 1:50:37
  So I don't see the law changing through litigation any time soon.
• 1:50:45
  And I mean, for my part, I think it's right to say that I said to you earlier that I am a, I took this case as a barrister.
• 1:50:54
  I'm not a campaigner. I don't seek to campaign on this issue.
• 1:50:59
  I would be very disappointed if Parliament were to pass up this opportunity.
• 1:51:05
  And I still think that it will, one way or another, they will find a way, whether it's through the use of the Parliament Act or another bill comes back.
• 1:51:17
  Well.
• 1:51:19
  But if they don't, yeah, I can't see at least that argument succeeding.
• 1:51:26
  Who knows? Maybe somebody will dust down my necessity arguments and they'll try those.
• 1:51:34
  But I don't think I'm going to be arguing this case again.
• 1:51:36
  Meanwhile, no.
• 1:51:37
  I feel like I've I feel like I carried that. I carried that for a long time.
• 1:51:42
  And it was an honour to run those cases, an absolute honour to work with those amazing people.
• 1:51:49
  But I don't think I'll run that case again.
• 1:51:51
  And of course, far too late for people like Tony Nicklinson and no doubt many others since.
• 1:51:58
  Yeah. I mean, you know, the fact is that the current law does leave people like Tony in an invidious, awful position where they're either forced to live in in circumstances of unbearable suffering or if they do, if they are well enough to be able to travel.
• 1:52:20
  Usually they'll have to travel to somewhere where they can take their own life earlier than they perhaps might have done.
• 1:52:26
  So they they might give up precious what might otherwise have been precious months of their life that they would have been able to to have if they'd been able to end their own life here.
• 1:52:37
  So, yeah, I mean, the issue is not going to go away.
• 1:52:44
  Paul Bowen KC practises from Brick Court Chambers.
• 1:52:48
  His human rights and public law practice now includes regulatory and financial services work.
• 1:52:55
  He also sits as a deputy High Court judge.
• 1:52:59
  This episode is dedicated to the memory of Tony Nicklinson.
• 1:53:18
  This podcast was brought to you by the University of Law.
• 1:53:21
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