My recent post on Kim Leadbeater’s Terminally Ill Adults (End of Life) Bill, which seeks to legalise assisted suicide for terminally ill adults and so modify the blanket ban provided by s. 2 of the Suicide Act 1961, has attracted some attention. There I raised questions as to the compatibility of the Bill with articles 8 and 14 of the European Convention on Human Rights (“ECHR”), suggesting that extending assisted suicide only to terminally ill adults might be considered unlawfully discriminatory. I argued that there can therefore be no guarantees that the Bill would not have to expand in the future if the UK is to continue to adhere to its obligations under the ECHR. Alex Ruck Keene KC, who represented Noel Conway in his legal challenge to the UK’s blanket ban, has made a similar argument.

In this post I want to respond to replies to my post from Stevie Martin on this blog and Anurag Deb and Lewis Graham on another. My respondents principally disagree with two of my arguments: first, that distinguishing between terminally ill adults and non-terminal, chronically ill or severely disabled persons could constitute discrimination under article 14; second, that review under article 14 could involve a narrower margin of appreciation than that traditionally afforded in assisted suicide and euthanasia cases. I will consider each argument in turn.

1. Discrimination under article 14

It is established law that any ban or exclusion on assisted suicide is prima facie an interference with article 8(1) ECHR (R (Nicklinson) v Ministry of Justice [2014] UKSC 38, [29]). While the European Court of Human Rights (“ECtHR”) has upheld the permissibility of blanket bans on assisted suicide as proportionate means of protecting the vulnerable for the purposes of article 8(2), lifting such bans for some groups but not others, I have argued, might engage article 14. Article 14 provides that “enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground … or other status.”

The approach to article 14 review was set out clearly by the ECtHR in Carson v United Kingdom (2010) 51 EHRR 369, [61]. It has since been accepted on numerous occasions by the Supreme Court: e.g. R (SC, CB and 8 children) v Secretary of State for Work and Pensions [2021] UKSC 26, [37]. The test can be broken down into three questions:

1. Is an identifiable characteristic listed in article 14 or “other status” engaged?
2. Is there “a difference in the treatment of persons in analogous, or relevantly similar, situations”?
3. Does the measure pursue a legitimate aim in a proportionate manner?

Reviewing these questions, the court must take into account a contracting state’s “margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment”, though this “will vary according to the circumstances, the subject matter and the background” (Carson, [61]). More on this aspect of article 14 will be said below.

The first limb of the Carson test is easily satisfied in the present case. “Other status” is traditionally interpreted broadly (SC, [71]), and disability and illness have been held to constitute such “other status” for the purposes of article 14: Guberina v Croatia (2016) 66 EHRR 11; Kiyutin v Russia (2011) 53 EHRR 26. But on the second question, Martin, Deb and Graham have all questioned whether terminally ill adults and non-terminal but chronically ill or severely disabled persons count as “persons in relevantly similar positions” so as to engage article 14. I argued in my previous post that both groups might experience the sort of suffering that is traditionally invoked to justify assisted suicide laws. And Martin accepts she has previously made a case against discrimination in assisted suicide laws on these grounds. But because Leadbeater’s Bill does not expressly include a suffering requirement, she suggests this argument cannot be made: “[o]n that basis, not extending assisted dying to those without a terminal illness is not to differentiate between analogous or relevantly similar cases of suffering and the slippery slope argument fails at the first hurdle.” Deb and Graham make similar points.

It is undeniable that, in purely abstract terms, terminally ill people can be distinguished from people with chronic but non-terminal illnesses or disabilities. But the second limb of the Carson test is not determined in abstract. Article 14 does not proscribe discrimination per se, but only discrimination between people in the enjoyment of a substantive Convention right. And as Lord Reed made clear in R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, [9]–[10], a reviewing court will look to the permitted justifications for interference with the particular substantive right in question to determine the article 14 requirement of relevant similarity (see also SC, [98]). For the Leadbeater Bill, the question is not whether we can think of ways to distinguish terminally ill adults from other people, but whether the legitimate aim invoked to permit assisted suicide for terminally ill adults has less application to other potential assisted suicides. Importantly for these purposes we must bear in mind Baroness Hale’s dictum in AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42 at [27] (cited by Martin in her own book at p. 189) that “it is wrong to focus on the personal characteristics which are inherent in their protected status to argue that their situations are not analogous” (my emphasis). On this basis, invoking differences between disabilities or illnesses as a sufficient basis in and of themselves to distinguish between groups when those differences have no connection to the justification for the assisted suicide law would be impermissible.

The absence of an express “suffering” requirement in the Bill does not excuse the government from having to put forward some justification for the law in the event of a post-enactment challenge under the ECHR or the Human Rights Act 1998 (“HRA”). In the context of assisting suicide, Nicklinson, at [29], suggests article 8(1) is engaged because it confers “in particular the right to avoid a distressing and undignified end to life”. If not justified on the basis of ending suffering per se, then, perhaps the government would try to justify the law on the ground that it conferred greater dignity and less distress in death. But it is not obvious that those with certain terminal illnesses will otherwise experience a death more distressing and less dignified than those with other serious but non-terminal conditions. Tony Nicklinson’s death is a particularly prominent example, Mr Nicklinson starving himself to the point of contracting fatal pneumonia. In Daniel Karsai v Hungary, decided by the ECtHR earlier this year, the applicant, who suffered from amyotrophic lateral sclerosis, feared becoming “locked into” his body with no opportunity to communicate his wishes reaching the final stages of his degenerative illness. What justification could the government offer for a law that interfered with these people’s article 8(1) rights more than those of terminally ill adults with fewer than six months to live?

Could there be any other justification for excluding such groups from an assisted suicide law, not premised on the desire to reduce suffering or to minimise distress and indignity in death? Autonomy is one obvious justification, but terminally ill people do not have a right to more autonomy than others. The government might try to argue that drawing a practical line of exclusion outside the context of the terminally ill would be too difficult in practice. One unnamed Labour MP recently told The Guardian that they “would not support something that was extended to intolerable suffering – because … it’s too hard to define in law”. Yet the category of terminally ill people in their, say, final six months of life, can be equally hard to define in practice. The 2019 report of the All-Party Parliamentary Group for Terminal Illness noted the elusiveness of prognostic certainty in non-cancer terminal illnesses like heart failure and chronic obstructive pulmonary disorder (p. 23). If the government feels able to draw a line in such difficult circumstances, why could it not draw a line beyond those circumstances? Those with wholly incapacitating illnesses which are not terminal in the sense defined by the Bill, like Tony Nicklinson’s locked-in syndrome or Dianne Pretty’s motor neurone disease, form as distinctive a category as terminally ill adults with less than six months to live. A line could readily be drawn to include such people, such that there could be said to be relevant similarity for the purposes of article 14.

Unless the government argues that bringing to a prompt end a life already heading to its close is in itself sufficient justification for its assisted suicide law (an argument that is unlikely to gain much traction, given the worrying implications it might have for other rights, most especially article 2, the most likely justification for a law based on the Leadbeater Bill would be the alleviation of suffering (whether or not it bears this justification on its basis not being determinative). And once this is admitted, it is far from clear why some sufferers should be entitled to the alleviation of their suffering through assisted suicide when others should not. Lord Bingham made a similar point in Pretty v Director of Public Prosecutions [2001] UKHL 61, [5], in the context of an argument that a distinction could be drawn (under article 2) between permitting assisted suicide for physically capable persons and legalising euthanasia for those too incapable of ending their own lives:

[T]here is in logic no justification for drawing a line at this point. If article 2 does confer a right to self-determination in relation to life and death, and if a person were so gravely disabled as to be unable to perform any act whatever to cause his or her own death, it would necessarily follow in logic that such a person would have a right to be killed at the hands of a third party without giving any help to the third party and the state would be in breach of the Convention if it were to interfere with the exercise of that right.

While article 2 does not confer a right to assisted suicide or euthanasia (Pretty v United Kingdom (2002) 35 EHRR 1; Mortier v Belgium [2022] ECHR 764), there is no reason why this argument would not apply to a claim brought under on articles 8 and 14.

It is clear, therefore, that terminally ill adults and those with other serious physical conditions (at least) are relevantly similar groups for the purposes of article 14, when viewed in light of the article 8 case law on assisted suicide and euthanasia. Both groups of people: experience equivalent suffering; are equally liable to be vulnerable; are no more or less likely to experience an undignified or distressing death; have the same rights of autonomy; can be defined with a similar level of certainty; and have lives equally worthy of legal protection. There is no sensible justification for lifting a blanket ban on assisted suicide in the case of the former group while excluding the second. It is more than arguable that this would be discriminatory for the purposes of article 14.

In her reply, Martin points to a single passing comment from the ECtHR in Karsai, at [150], which she says appears to accept an assisted suicide law “limited to individuals who are terminally ill with refractory symptoms”. But it is too much to rely on this dictum to support a proposition that “the Court appears to accept that a system of assisted dying could legitimately” be so limited. The applicant in Karsai had himself, as a terminally ill man, argued for a law limited to terminally ill people. That was because, by his argument, terminally ill people in receipt of life-sustaining treatment enjoyed greater enjoyment of their article 8 rights than those not receiving such treatment: the former had the ability to refuse or request withdrawal of treatment. He argued, by virtue of his not requiring life-sustaining treatment, that Hungary’s blanket ban on assisted suicide contravened his article 8 rights, and on that basis a minimal exemption to the ban on assisted suicide should be allowed. But the court rejected this argument, insisting there was a meaningful distinction between refusal and withdrawal of treatment and assisted suicide, so as to justify Hungary’s blanket ban. The court’s comment is in no way indicative that it would accept a limited assisted suicide law applicable only to terminally ill people. Martin is of course right to say that “the ECtHR may be receptive to assisted dying regimes that differentiate between conditions” (my emphasis). But it is trite law that any such differentiation would still require justification under article 14.

A word should also be said in reply to a related argument made by Deb and Graham. They suggest that because the Leadbeater Bill only proposes to create a right to assisted suicide for terminally ill adults, it should not be considered as discriminatory by excluding other groups: “a legislative measure which both creates and prescriptively defines a right by reference only to a specific cohort of people does not narrow the right only to that cohort” (emphasis original). This argument is confusing. Article 14 proscribes discrimination between persons in “[t]he enjoyment of the rights and freedoms set forth in this Convention” (emphasis added). Cases like SC and the authorities discussed therein, where denial of an entitlement to certain welfare benefits was challenged on article 14 grounds, are relevant here (a point recently made by Alex Ruck Keene KC, cited above). If a state decides to confer a welfare benefit on certain groups, it is open to other groups to argue that this discriminates against them in the enjoyment of their own Convention rights (even if the Convention right does not mandate that particular welfare benefit, provided the law still falls within the right’s ambit: SC, [39]. It is irrelevant that the legislative measure prescriptively defines the welfare benefit by reference to a group of persons that is narrower than the applicants themselves: their precise argument is that that prescriptive definition is too narrow and therefore discriminatory (SC, [41]). What is true of these benefit cases is equally true, mutatis mutandis, of the Leadbeater Bill; the Bill’s prescriptive definition would not prevent an article 14 challenge.

2. The margin of appreciation

The margin of appreciation issue can be responded to more succinctly. As I said in my original post, “[c]ases like Mortier v Belgium (no 78017/17) recognise that assisting suicide, while permissible under the ECHR, is an area where the margin of appreciation is traditionally wide.” It is unclear, therefore, why Deb and Graham, citing Mortier, suggest I “ignore how both Strasbourg and domestic authorities review the question of justification”. Martin similarly suggests I downplay the importance of the margin of appreciation. While I have not denied that a wide margin of appreciation has been applied in the ECtHR’s existing case law in this area, my respondents have perhaps been unduly reliant on the margin of appreciation in this context. My argument in my original post was there can be no guarantee how this margin of appreciation will apply in an article 14 challenge to an assisted suicide law as restrictive as that set out in the Leadbeater Bill. No Strasbourg case has so far determined the relationship between the wide margin of appreciation afforded in assisted suicide cases and the narrower margin of appreciation that applies when discrimination is alleged on grounds of disability or illness within an assisting suicide regime (cf. Karsai, where article 14 was argued in relation to a blanket ban).

The margin of appreciation is not static, especially in article 14 cases. As Lord Reed said in SC (at [99]):

It is doubtful whether the nuanced nature of the approach which [the ECtHR] follows can be comprehensively described by any general rule. It is more useful to think of there being a range of factors which tend to heighten, or lower, the intensity of review. In any given case, a number of these factors may be present, possibly pulling in different directions, and the court has to take them all into account in order to make an overall assessment.

Thus, while cases concerned more generally with assisting suicide (either blanket bans or more broadly permissive regimes) have attracted a wide margin of appreciation, any law that discriminates on grounds of disability or illness could pull the margin of appreciation in the opposite direction. As the ECtHR said in this context in Guberina v Croatia (2016) 66 EHRR 11, [73] (see also SC, [112]–[113]):

[I]f a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the state’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question.

For these reasons, disability and illness have been grounds in which the ECtHR has applied a traditionally narrow margin of appreciation (Kiyutin, [63]).

Yet even if we assume that any challenge to the law under article 14 would attract a wide margin of appreciation, it is far from clear that this is dispositive of my overall argument in the way Martin, Deb and Graham suggest. The margin of appreciation is not a trump card which, when played by a state, prevents any challenge to its law under the ECHR. The margin of appreciation, however wide, does not excuse a state from advancing some justification for its impugned measure’s interference with a Convention right. And it is my principal argument that, once the blanket ban on assisted suicide is removed by the Leadbeater Bill, advancing such a justification becomes significantly more difficult. Protecting the vulnerable, ensuring dignity or a minimisation of distress in death, the difficulty in distinguishing between groups, or the importance of autonomy and dignity do not seem to justify a law that is limited to terminally ill adults and not to seriously disabled adults or other conceivable groups. In this regard it should be unsurprising that no other European assisted suicide or euthanasia law is so limited. No supporter of the Bill can therefore guarantee it will be immune from challenge on article 14 grounds if enacted.

One supporter of assisting suicide recently said that the Leadbeater Bill “has to be watertight, clean and simple” if it is to be enacted. Faced with the unknowns in the Strasbourg case law, this is an impossible demand. Contrary to the responses of Martin, Deb and Graham, the argument in my original post, I respectfully suggest, still stands. No supporter of these proposals can guarantee their immunity from post-legislative expansion following a successful challenge under the ECHR. This is something legislators should bear in mind when deciding how to vote in the coming weeks.

I am grateful to Mark Elliott, David Feldman, John Keown, Rajiv Shah and the editors of this blog for comments on earlier drafts of this post. All errors remain mine alone.

Philip Murray is a College Assistant Professor in Law at Robinson College, Cambridge.

(Suggested citation: P. Murray, ‘Assisted Suicide and the ECHR: Some Further Thoughts’, U.K. Const. L. Blog (19th November 2024) (available at https://ukconstitutionallaw.org/))