Supreme Court · 7-2 against a declaration of incompatibility: Lady Hale and Lord Kerr dissenting
Facts
Tony Nicklinson suffered locked-in syndrome after a stroke and could not end his life unaided. He wished to die with the help of another person, and sought a declaration that a doctor or other person who killed him with his consent would have a defence of necessity to murder, or that the law was incompatible with Article 8. He died during the proceedings, and his widow continued the case. Paul Lamb, who was severely paralysed, brought a similar challenge to the offence of assisting suicide in section 2 of the Suicide Act 1961. A third claimant, identified as AM, challenged the policy of the Director of Public Prosecutions on prosecutions for assisting suicide.
History
The Divisional Court of the High Court rejected the claims of Nicklinson and Lamb, and the Court of Appeal dismissed their appeals. They appealed to the Supreme Court, which heard the appeals together with the appeal of AM.
Issue
Whether the prohibition on assisting suicide in section 2 of the Suicide Act 1961, and the law of murder as it applies to voluntary euthanasia, infringed the right to respect for private life under Article 8, and whether a court should make a declaration of incompatibility under section 4 of the Human Rights Act 1998, or leave the question to Parliament.
Held
The appeals of Nicklinson and Lamb were dismissed by a majority of 7 to 2, so no declaration of incompatibility was made. A majority of the Justices accepted that the court had constitutional authority to consider a declaration, but most considered that Parliament should be given the opportunity to address the question first.
Ratio
- There is no single ratio, because the Justices gave a number of separate opinions. The decision establishes that the court has jurisdiction to consider whether section 2 of the Suicide Act 1961 is compatible with Article 8, but that on the facts it was not appropriate to make a declaration of incompatibility in this case, because the issue was one on which a wide margin of judgment belonged to Parliament, which was considering the matter.
The judgments
Lord Neuberger (majority)
Held that the court had constitutional authority to consider a declaration of incompatibility, but that it should not make one at that stage because Parliament, which was considering the issue, should have an opportunity to address it, and indicated that a court might take a different view if Parliament failed to do so.
Lord Sumption (majority)
Held that the question was one of moral and social judgement that belonged to Parliament, that the Strasbourg case law left a wide margin to national authorities, and that the court should not make a declaration of incompatibility.
Lady Hale (dissenting)
Would have made a declaration that section 2 of the 1961 Act is incompatible with Article 8, so far as it prevents help for people with capacity who have made a settled decision to end their lives and who are unable to do so alone.
Lord Kerr (dissenting)
Would also have made a declaration of incompatibility, on the ground that the blanket prohibition could not be justified as proportionate in the case of those with capacity and a settled wish to die.
Key reasoning
- Article 8 is engaged by the wish of a person to decide how and when to die, as the European Court of Human Rights has accepted, but the question whether the prohibition is a proportionate interference falls within the margin of appreciation of the contracting state.
- Section 4 of the Human Rights Act 1998 gives the courts power to declare primary legislation incompatible, but it is for the court to decide in each case whether it is appropriate to do so, and the sensitivity and moral complexity of the issue are factors that weigh against it.
- Parliament was already considering the issue, through a Bill on assisted dying, and it was appropriate for it to be given the first opportunity to decide the matter before the court intervened.
Obiter
- Several Justices indicated that, if Parliament did not consider the issue within a reasonable time, the court might in future be willing to make a declaration of incompatibility.
Where it fits in the module
In the topic on section 6 and judicial review of administrative action under the Human Rights Act 1998, the case is relevant to the intensity of review and to the relationship between courts and Parliament in human rights adjudication. The key debate is whether it is for the courts or the legislature to decide on contested moral issues and whether section 4 of the Act enables the court to prompt legislative action. The case also relates to discussion of the margin of appreciation applied domestically.
Criticisms
- By holding that the court had power to declare incompatibility but declining to do so, the majority avoided deciding the substantive question and left claimants with no remedy, which weakens the role of the courts as guardians of rights.
- The reliance on the idea that Parliament was already considering the matter treats an ongoing debate in Parliament as a reason for delay, although legislation might never be passed, and critics argue that this undermines the function of the declaration.
- The wide variety of separate opinions leaves the law unclear on when a court will make a declaration on a contested ethical question, and on how far the margin of appreciation, a doctrine designed for an international court, should be applied by national courts.
Written with AI (claude-sonnet-5.5 (Claude Code writer)) on 1 November 2026, reviewed for errors by a second model (claude-sonnet-5.5 (Claude Code checker)). Read the case itself on Find Case Law. Spotted an error? Tell us.