The separation of powers is one of the main focal points of theBritish Constitution. This however has come into question over the past decadewith cases such as Nicklinson1highlighting how judges are relying on Parliament more frequently to change thelaw rather than developing it in the court room.
Whilst the judiciaries’ explicitrole is to interpret and develop current statute law, the issue of assisted suicidehas brought into play the idea that judges are limited their powers as not tointerfere with Parliament’s decisions. Hobbes expressedthat the law is a body commanded by a sovereign, meaning that if courts lieoutside the direct control of the state, judges are making law rather thanapplying it, therefore breaching into the duties of the executive2. Commonly, it is thought thatjudges are reluctant to make moral decisions about cases due to Parliamentarysupremacy and that rather Parliament who are an elected representative bodyshould be making the decisions about important moral cases. As Lord Hughes points out “it is a matter for Parliament to determine the precise details of any scheme” when being asked about whetherit is the courts’ role to set up a specific scheme under which a person couldbe assisted in their suicide.
3 Lord Neuberger however,points out that even before the 1998 Act was introduced, judges had to intervene in fundamentally challenging cases and developthe law into what it is today. The case of Bland is explicitly expressedwhereby the courts decided a doctor’s omission did not complete the definitionof manslaughter or murder, along with the case of Re B (Wardship) whereby apatient of sound mind can choose to withdraw from their life sustainingtreatment. Thesecases are a clear example of how judges had to play a vital role in theinterpretation of legislation to influence how medical professionals From the decision inNicklinson, the majority of the Supreme Court argue that it is institutionally appropriatefor Parliament to reform s.2 of the Suicide Act,4which has now been reacted in s.59(2) of the Coroners and Justice Act 5,to avoid the possibility of a declaration of incompatibility by the judiciaryin the future. While Lady Hale and Lord Kerr argue that a declaration would beappropriate the others argue that the cases provided do not given an effectivebasis for the declaration of incompatibility to be made.More recently, the debate has been heated through the judgments of theEuropean Court of Human Rights (ECHR).
Whilst the court has no enforceabilityin the UK constitution, judges and Parliament must consider the judgments madeby the Strasbourg court which has led to heated debates between the national and Strasbourg courts interms of the legalisation of voting for prisoners and the interpretation ofarticle 8 of the ECHR. In conclusion, it is obvious that judges are too willing to imposeartificial limits on their power, since the judges in the Supreme Court refusedto issue a declaration of incompatibility between the blanket ban and the ECHRon the assumption that it could interfere and even question the supremacy ofParliamentary sovereignty. Neuberger confirms this through his position inNicklinson whereby he argued that the issue was so major that it would beinstitutionally inappropriate to issue a declaration without giving Parliamentthe opportunity to consider the issue first.