T v Secretary of State for Justice [2017] EWHC 3181 (Admin)

Case No CO/1319/2017

[2017] EWHC 3181 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 7/12/2017

Before

THE PRESIDENT OF THE QUEENS BENCH DIVISION

(SIR BRIAN LEVESON)

MRS JUSTICE WHIPPLE D.B.E.

Between

TClaimant

SECRETARY OF STATE FOR JUSTICEDefendant

Paul Bowen QC (instructed by Bindmans LLP, London) for Claimant

James Strachan QC and Benjamin Tankel (instructed by GLD, London) for Defendant

Hearing Hearing dates: 21 November 2017

Judgment

Sir Brian Leveson P:

[1]This is the judgment of the Court to which we have both contributed.

Background

[2]T (who has been granted anonymity to prevent his identification) suffers from multiple systems atrophy, a rare and devastating neurological disorder affecting the body’s autonomic functions. He is now 55 years old and lives in a nursing home. He is bedbound, has poor mobility and is reliant on 24-hour care. His condition will deteriorate over time, to the point of death. Although the analysis that follows is inevitably based on our understanding of the law, it is important to underline that he has our profound sympathy and respect.

[3]T brings this application for judicial review, seeking a declaration of incompatibility under s. 4(2) of the Human Rights Act 1998 in relation to the prohibition on assisted suicide contained in s. 2(1) of the Suicide Act 1961 (“section 2”). Permission was granted by Supperstone J on 22 May 2017. Since then, the Divisional Court has handed down judgment in another challenge to section 2: Conway v Secretary of State for Justice

[2017] EWHC 2447 (Admin)

. In that case, the challenge failed and permission to appeal was refused. Mr Conway has since applied to the Court of Appeal for permission to appeal and that application has been listed for an oral hearing.

[4]This application is pursued on a different basis and, in order to pursue it, Mr Paul Bowen Q.C. (acting for T) applies for permission, by way of directions, to cross-examine certain witnesses whose evidence has been lodged on behalf of the Secretary of State for Justice (“the Secretary of State”). This judgment deals only with that application.

[5]For the reasons set out below, we consider that one part of the application raises matters of real substance which go far beyond ordinary issues of case management which can be resolved by the type of hearing that we have held. We therefore propose adjourning that part of the application to be resolved by way of preliminary hearing. We dismiss the remaining part of the application.

The Application

[6]Although a number of issues were initially raised in advance of this hearing listed before us, in the event, the only matter left for us to resolve concerned the application by Mr Bowen for a direction that certain of the Secretary of State’s witnesses should be tendered for cross-examination. That there is such a discretion is clear: see R (Jedwell) v Denbighshire CC

[2016] PTSR 715

at [52] for a recent statement of the principle, and Mr Bowen accepts that in judicial review the discretion is to be exercised sparingly and only in exceptional cases. This is due to the fact that it does not represent the usual position in judicial review where the Court determines the issues on the written evidence before it. However, he argues that this is a case where the Court should take that unusual course.

[7]Mr James Strachan Q.C., who appears with Mr Benjamin Tankel for the Secretary of State, argues that Mr Bowen has not put forward any cogent basis for allowing any cross-examination, the scope and purpose of which has not been adequately stated. Further, he submits that it is not appropriate for this Court to hear oral evidence because the issues of opinion and policy which underpin the challenge are within the exclusive remit of Parliament to determine.

[8]As it currently stands, the evidence which is sought to be challenged by way of cross examination broadly falls into two groups. We consider each separately, because the arguments apply differently to each group or type.

T’s condition

[9]The first type of expert evidence is from palliative care experts going to T’s specific circumstances including his current condition, his future prognosis, and palliative care options open to him now and in the future. So far, the Secretary of State has adduced evidence from two such experts (named at paragraph 4.2 of the proposed directions) but Mr Strachan has made it clear that if the application succeeds, consideration will necessarily be given to whether further evidence is required.

[10]The first such expert is Dr Annabel Price. She is a consultant psychiatrist in liaison psychiatry at Addenbrooke’s Hospital and associate specialist director for palliative care at the Cambridge Institute of Public Health. She has prepared a report dated 30 October 2017, in which she answered a number of questions specific to T, and gave her view on the palliative care options which might be open to him and on his wish for hastened death. The second such expert is Professor Rob George who is a professor of palliative care at King’s College London and medical director of St Christopher’s Hospice. He has recently concluded a term as President of the Association for Palliative Care Medicines of Great Britain and Ireland. He has prepared a report dated 15 November 2017 in which he gives his opinion about T’s condition and prognosis, and the palliative care options which may be open to him.

[11]The application made by Mr Bowen is to cross-examine both of doctors on a number of issues. Taken from the proposed directions, these are whether T has capacity to make a decision to end his own life, whether he has made a voluntary, clear and settled and informed decision that he wishes to have assistance to die, and whether he has a grievous and irremediable medical condition which causes him enduring suffering which he finds intolerable.

[12]Mr Strachan submits that none of these issues is in dispute. It is accepted that T has capacity, that he wishes to have assistance to die and that he finds his situation intolerable. Indeed, the Secretary of State goes further and confirms a general acceptance of the case advanced on the facts in so far as they relate to T’s condition and outlook. Thus, he says, the proposed cross-examination would serve no good purpose and should not be allowed.

[13]So far as these witnesses are concerned, we agree with Mr Strachan. On the basis of what we have heard, we cannot see that the Court would be assisted by hearing oral evidence from these two experts on the areas suggested by Mr Bowen: there is simply no dispute about those issues. That there are palliative care options available for T, which he may not at present, or ever, find acceptable, is undisputed. Cross-examination of the witnesses, to put to them why it is that the suggestions are not palatable to him, will not assist. Further, the Court can take as the basis on which the case should proceed T’s own evidence as to his wishes and grievances, and his view of the situation which confronts him. To the extent the application relates to this evidence, it is refused.

The Policy

[14]The second type of evidence which Mr Bowen seeks to challenge is that offered by Professor the Baroness Finlay of Llandaff; this is the subject of paragraph 4.1 of the Claimant’s proposed directions. Baroness Finlay is a palliative care consultant who is an honorary professor at Cardiff University. She served on the House of Lords Select Committee on the Assisted Dying for the Terminally Ill Bill in 2004-5 (the “House of Lords Select Committee”) and later co-founded the think-tank Living and Dying Well. She has a wide range of professional interests associated with end of life issues.

[15]Baroness Finlay prepared a report dated 1 November 2017. That report addresses various issues, some of which relate specifically to T (and, we conclude, that part of her evidence falls into the first type of evidence in relation to which cross-examination will not be permitted, see above). Other issues relate to the wider debate about assisted suicide, including a commentary on published data from other jurisdictions where assisted suicide and/or voluntary euthanasia is lawful. We will refer to this, for want of a better term, as “policy” evidence.

[16]In his proposed directions, Mr Bowen suggests that the purpose of cross- examining Baroness Finlay would be to test her views on:

“… the validity of the costs, risks and benefits upon which the Defendant relies for the absolute prohibition on assisting suicide, namely (a) the risks to vulnerable people, in particular the risks of life-ending acts without explicit authorisation (LAWER), with reference to empirical experience from jurisdictions where assisted suicide is lawful, including the number of people who will be affected; (b) the risk of a negative impact on palliative care; (c) the risk of a negative impact on doctor-patient relationships and public trust in the public health system; (d) the risk of negative impact upon the ethical principle of the sanctity of life, with particular emphasis on the ethical distinctions between end of life practices that are currently lawful and those that are unlawful”

He also wishes to put his case for relaxing the prohibition and for asserting that reliable safeguards can be put in place to meet any risks.

[17]At the hearing, by way of example, Mr Bowen suggested that he would wish to cross-examine Baroness Finlay on the following passages of her report, amongst others: i) Para 29, where she discusses vulnerability at end of life; ii) Para 41, where she talks of unbearable suffering being a subjective experience incapable of objective measurement; iii) Para 46, where she disputes the adequacy of the proposed safeguards as a means of protecting the vulnerable.

[18]In each of these paragraphs, and throughout the report, Baroness Finlay expresses her own opinion about the risks to the vulnerable if the prohibition against assisted suicide were to be lifted or relaxed. We understand that Mr Bowen will seek, by his questioning and submissions based on the answers she gives, to persuade this Court to reject Baroness Finlay’s evidence, and to accept, instead, evidence that he will proffer through suitably qualified experts instructed on behalf of T, to the effect that the prohibition on assisted suicide is not necessary or proportionate in order to protect the vulnerable. It may be, in addition, that the submission will go wider than that. In any event, he argues that if he is not permitted to cross-examine Baroness Finlay (and by extension, any other policy expert witness upon whom the Secretary of State relies), the Court will have no option but to accept the Secretary of State’s evidence on the matters addressed by those witnesses, given that this is the evidence upon which the Secretary of State places reliance in challenging the allegation of incompatibility.

[19]Mr Bowen argues that such an approach would substantially undermine the case that he, on behalf of T, wishes to advance because the Court would find itself in a position analogous to the Court in Conway, in which, based on untested evidence relied on by the Secretary of State, it was decided that the prohibition on suicide was both necessary and proportionate. If, on the other hand, the Court heard oral evidence from the expert witnesses, it could reject all or part of the evidence submitted by the Secretary of State. The Court would then be able to consider the compatibility of section 2 with the Convention against a more certain evidential picture. That, says Mr Bowen, is a more likely route to the declaration of incompatibility he seeks.

[20]Mr Bowen draws on two authorities to support his submission. First, he cites the first instance decision of Smith J in the British Columbia Supreme Court in Carter v Canada (reported at [2012] BCSC 886). That case was ultimately heard by the Supreme Court of Canada who upheld Smith J and declared that the prohibition on assisted suicide contained in the Canadian Criminal Code infringed the Canadian Charter and was unconstitutional (see [2015] SCC 5). So far as this application is concerned, Mr Bowen relies on the fact, as recited at [5] and [22] of the Supreme Court case report, that Smith J conducted an “exhaustive review” of the extensive evidence which was before her (which, we infer, largely comprised policy evidence), and allowed a number of expert witnesses to be cross examined as part of the trial. That, he says, is what should happen in this case.

[21]Secondly, Mr Bowen relies on passages from R (Nicklinson) v Ministry of

Justice [2014] UKSC 38, [2015] AC 657, in particular from the judgment of Lord Mance at [182]:

“It is in my view clear from the judgment at first instance in the Carter case … and from even the superficial examination of the evidence which the appellants now in effect invite as their primary case … that it would be impossible for this Court to arrive at any reliable conclusion about the validity of any risks involved in relaxing the absolute prohibition on assisting suicide, or (which is surely another side of the same coin) the nature or reliability of any safeguards which might accompany and make possible such a relaxation, without detailed examination of first-hand evidence, accompanied by cross-examination. This has not occurred in this case, but, in its absence, I do not see how one can accept the appellants' submission …”

[22]Mr Bowen submits that other members of the Supreme Court supported Lord Mance: see Lord Neuberger at [120]-[121], [126]-[128], Lord Wilson at [202] and Lord Sumption at [224]. Mr Bowen puts his application to cross-examine Baroness Finlay (at para. 4.1 of the proposed directions) in terms which follow the words used by Lord Mance, with some expansion.

[23]Mr Bowen acknowledges that passages in Conway are against him, in particular [76] where the Court stated:

“This is not a trial of an issue of clinical negligence or the like. The resolution of the claim for a declaration of incompatibility did not require there to be cross-examination of any of the expert or other witnesses. The question at issue is whether Parliament has a proper basis for maintaining in place the prohibition against provision of assistance for suicide contained in section 2. This does not require us to set out and analyse in full detail the expert and other evidence placed before us. We refer to the evidence to the extent that it is necessary to do so to determine Mr Conway's claim for a declaration of incompatibility.”

Mr Bowen counters this point by arguing that it was never suggested in Conway that there should be cross-examination of any witnesses, and therefore this passage should carry little, if any, weight in the determination of this application. Further, he argues that Conway is to be distinguished on its facts and in other respects.

[24]The Court took Mr Bowen to [110] of Conway where the Court concluded, in the context of determining whether section 2 was necessary (as part of the proportionality assessment):

“Parliament is also better placed than the court to make the relevant assessment regarding the likely impact of changing the law in the matter. The consideration given by Parliament through its processes (including Select Committee investigations and reports) to the issue of assisted dying over the years has been more thorough and extensive than could be achieved in a court hearing to determine issues of law.”

Mr Bowen submitted that the Court was here making a point which was specific to Mr Conway’s case and not of general application; but in the alternative, if the Court was seeking to make a point of wider application, to the effect that Parliament, not the Court, was better placed to assess the proportionality of the statutory prohibition on assisted suicide, then he would argue that Conway was wrong and that a different Divisional Court hearing this claim would not be bound to decide the issue in the same way.

[25]In response, Mr Strachan makes two preliminary points. He says, first, that the Court should not underestimate the task which Mr Bowen is inviting the Court to embark upon. The Secretary of State has only sought to put a small cross section of the available evidence before the Court, on the basis that this Court would should adopt the same procedure as in Conway and other assisted suicide cases and determine the issues on the written evidence, without engaging in a minute review of the evidence. But if this Court does wish to embark on an exercise similar to that undertaken by Smith J in Carter v Canada, then the position may changes and the Defendant may wish to put a fuller range of expert evidence before the Court to support its case. Further, of course, if the Claimant is going to cross-examine the Secretary of State’s witnesses, similar permission may be sought in relation to the witnesses relied upon by Mr Bowen. The burden on the Court would be enormous. The timeframe for any hearing would be measured in weeks.

[26]Secondly, Mr Strachan raises the question about whether the Courts should be inviting the Secretary of State to respond, by evidence, to the challenge at all. He reminds us of what the Court noted in Conway at [10], namely that the Government does not have a policy on assisted suicide, and when the issue has been raised in Parliament, parliamentarians have been given a free vote. Thus, the real target of Mr Bowen’s challenge, and thus the real Defendant to this application, is Parliament itself. This is not ordinary party and party litigation.

[27]Those points are a prelude to Mr Strachan’s wider arguments resisting the application. First, he says, there is no clarity at all regarding the precise matters on which Mr Bowen seeks to cross-examine, and so the grant of permission to cross-examine will be a recipe for chaos and should be refused on that basis. Secondly, he says, the appropriate forum for any debate about the prohibition on assisted suicide is Parliament, not the courts. To that end, he argues that Lord Mance’s comments at [82] of Nicklinson were not supported by any other member of the Supreme Court and have not been approved in any case since then. So, he says, the better view is set out at [110] of Conway which was itself based on what Lord Sumption had said in Nicklinson, which does not support Lord Mance at all, but is to opposite effect. Lord Sumption’s views are summarised in Conway, with references in square brackets being to paragraphs of Lord Sumption’s speech in Nicklinson:

“109. Parliament is the body composed of representatives of the community at large ([230]) with what can be called a democratic mandate to make the relevant assessment in a case where there is an important element of social policy and moral value-judgment involved with much to be said on both sides of the debate ([229] and [233]). There is not a single, clear, uniquely rational solution which can be identified; the decision cannot fail to be influenced by the decision-makers' opinions about the moral case for assisted suicide, including in deciding what level of risk to others is acceptable and whether any safeguards are sufficiently robust; and it is not appropriate for professional judges to impose their personal opinions on matters of this kind ([229]-[230] and [234]). In Nicklinson in the Court of Appeal, Lord Judge CJ aptly referred to Parliament as representing "the conscience of the nation" for decisions which raise "profoundly sensitive questions about the nature of our society, and its values and standards, on which passionate but contradictory opinions are held" (Court of Appeal, [155]). Parliament has made the relevant decision; opponents of section 2 have thus far failed to persuade Parliament to change the law despite active consideration given to the issue, in particular in relation to the Falconer Bill which contained essentially the same proposals as Mr Conway now puts before the court; and the democratic process would be liable to be subverted if, on a question of moral and political judgment, opponents of the legislation could achieve through the courts what they could not achieve in Parliament ([231] per Lord Sumption, referring to R (Countryside Alliance) v Attorney General [2008] AC 719 , [45] per Lord Bingham and AXA General Insurance Ltd v HM Advocate [2012] 1 AC 868 , [49] per Lord Hope). 110. Parliament is also better placed than the court to make the relevant assessment regarding the likely impact of changing the law in the matter. … As Lord Sumption said at [232]: ‘… the parliamentary process is a better way of resolving issues involving controversial and complex questions of fact arising out of moral and social dilemmas. The legislature has access to a fuller range of expert judgment and experience than forensic litigation can possibly provide. It is better able to take account of the interests of groups not represented or not sufficiently represented before the court in resolving what is surely a classic "polycentric problem". But, perhaps critically in a case like this where firm factual conclusions are elusive, Parliament can legitimately act on an instinctive judgment about what the facts are likely to be in a case where the evidence is inconclusive or slight: see R (Sinclair Collis Ltd) v Secretary of State for Health [2012] QB 394, especially at para 239 (Lord Neuberger of Abbotsbury MR), and Bank Mellat v HM Treasury (No. 2) [2014] AC 700 , 795-796, paras 93-94, per Lord Reed. Indeed, it can do so in a case where the truth is inherently unknowable, as Lord Bingham thought it was in R (Countryside Alliance) v Attorney General [2008] AC 719, para 42.’” ‘… the parliamentary process is a better way of resolving issues involving controversial and complex questions of fact arising out of moral and social dilemmas. The legislature has access to a fuller range of expert judgment and experience than forensic litigation can possibly provide. It is better able to take account of the interests of groups not represented or not sufficiently represented before the court in resolving what is surely a classic "polycentric problem". But, perhaps critically in a case like this where firm factual conclusions are elusive, Parliament can legitimately act on an instinctive judgment about what the facts are likely to be in a case where the evidence is inconclusive or slight: see R (Sinclair Collis Ltd) v Secretary of State for Health [2012] QB 394, especially at para 239 (Lord Neuberger of Abbotsbury MR), and Bank Mellat v HM Treasury (No. 2) [2014] AC 700 , 795-796, paras 93-94, per Lord Reed. Indeed, it can do so in a case where the truth is inherently unknowable, as Lord Bingham thought it was in R (Countryside Alliance) v Attorney General [2008] AC 719, para 42.’”

Legal Context

[28]It is important to understand the legal context of this application. What follows is a short summary of some of the important staging posts in the development of the case law on assisted suicide. It is not, and is not intended to be, a comprehensive review of the relevant case law.

[29]It is established, now, that the prohibition on assisted suicide engages

Art. 8(1) of the ECHR

(Pretty v United Kingdom

(2001) 35 EHRR 1

at [67]). However, so far as the Strasbourg Court is concerned, the prohibition constitutes a proportionate and justified interference under Art. 8(2) (Pretty at [68]-[78], [74] in particular; and see Hass v Switzerland

(2011) 53 EHRR 33

and Koch v Germany

(2013) 56 EHRR 6

). Thus, the Claimant in this case does not seek a declaration of incompatibility with Convention rights contained in the ECHR itself. Rather, he seeks a declaration of incompatibility with Convention rights as set out as distinct provisions of domestic law under the HRA. This follows the decision of the House of Lords in Re G (Adoption: Unmarried Couple)

[2008] UKHL 38

;

[2009] 1 AC 173

, which recognised that a distinct claim of incompatibility of domestic rights can be maintained even though there is no breach of the Convention as a matter of international law.

[30]This is not the first time a domestic Convention claim has been brought in relation to section 2. In Nicklinson, the Supreme Court rejected similar claims for declarations of incompatibility in domestic law by a majority of 7:2. The nine justices each gave judgments. They divided into three broad groups, summarised in Conway at [85]. Lords Neuberger, Mance, Wilson and Clarke took the view that Parliament was on the point of debating the Falconer Bill and it would be premature for the Supreme Court to consider making a declaration of incompatibility until Parliament had had the opportunity to consider the matter; it was “institutionally inappropriate” for the Court to consider the matters raised. Lords Sumption, Hughes and Reed considered that there was no incompatibility between the prohibition on assisted suicide and Art. 8 as a matter of substance. Baroness Hale and Lord Kerr were satisfied that there was an incompatibility and would have granted a declaration of incompatibility.

[31]In Conway, the Divisional Court was again faced with a domestic law claim for a declaration of incompatibility in relation to section 2. The Divisional Court rejected the Secretary of State’s submission that it remained “institutionally inappropriate” for the Court to consider the matters raised given that the special and unusual circumstances pertaining at the time of the Supreme Court’s decision in Nicklinson were no longer present (see Conway at [89]). The Court was therefore prepared to consider the Claimant’s challenge to the prohibition on its merits (see [90]).

[32]However, on the merits, the Court rejected the challenge. The Court’s approach was guided by the four questions which determine proportionality, see R (Aguilar Quila) v Secretary of State for the Home Department

[2011] UKSC 45

;

[2012] 1 AC 621

, at [45] per Lord Wilson, referred to at [78] of Conway. The Divisional Court concluded that section 2 had legitimate aims, that a rational connection existed between it and the legitimate aims, that the prohibition was necessary, and that it struck a fair balance; in summary, it held that section 2 was not a disproportionate interference with Mr Conway’s Art 8(1) rights, applying domestic law: see [91]-[118] and [128].

[33]In the context of considering the third question, concerning the necessity of the provision, the Divisional Court referred to the margin of appreciation accorded to Convention States and its domestic analogue the “discretionary area of judgment” to be accorded to Parliament (see Conway [106], citing Nicklinson [296] – [297] per Lord Reed). The Court in Conway held that in the context of assisted dying, an evaluative judgment was required to assess whether the blanket prohibition contained in section 2 was necessary to promote the legitimate aims of the legislation ([106]).

[34]In that context, there were powerful constitutional reasons why Parliament’s assessment of the necessity of maintaining the prohibition in place should be respected ([108]). Parliament was better placed than the Court to make the relevant assessment regarding the likely impact of changing the law (see [109]-[110] in particular). We will use the phrase “constitutionally inappropriate” to summarise the position stated in these paragraphs, namely that it is for Parliament, not the courts, to undertake any assessment of the necessity of the blanket prohibition in order to achieve the legitimate aims of the provision. The Divisional Court drew on Nicklinson and other cases in its examination of what was constitutionally (in)appropriate: the issue is not a new one.

[35]In the light of Conway, the Secretary of State does not renew its argument that it is “institutionally inappropriate” for the Court to consider the challenge (cf, Lords Neuberger, Mance, Wilson and Clarke in Nicklinson), although the Secretary of State reserves his position to raise that issue afresh should this case progress on appeal to a higher court. However, the Secretary of State does maintain, in line with Conway, that there are powerful constitutional reasons why Parliament’s assessment of the necessity of maintaining the prohibition in place should be respected.

[36]The case law on assisted suicide, summarised above, has concentrated on Art. 8. This Claimant relies on Art. 2 in addition to Art. 8. He argues that section 2 breaches the State’s positive obligation to protect life, because those who are unable to die with assistance at a time of their choosing are forced to end their lives at an earlier point, while they retain the physical capacity to do so without assistance (see [22]-[25] of the Grounds); as a result, the effect of section 2 is to shorten lives. The Secretary of State disputes this Art. 2 claim, on the basis that the domestic courts have already determined that Art. 2 is not engaged: see Pretty v DPP

[2001] UKHL 61

;

[2002] 1 AC 800

, and [4] of the Detailed Grounds. So far as this application is concerned, Mr Bowen accepts that a similar balancing exercise must be conducted in relation to the Art. 2 arguments as he acknowledges is necessary in relation to Art. 8 so the addition of Art. 2 is not material in the context of the present application.

Analysis

[37]With that background in mind, we turn to this application, which is novel in the context of cases on assisted dying. It is ultimately aimed at promoting the argument that section 2 is a disproportionate measure.

[38]In resolving this application, we have not found Carter v Canada helpful. The fact that Smith J, sitting at first instance in the Supreme Court of British Columbia, heard oral evidence over a number of weeks from a variety of experts does not help us to determine how this challenge in this jurisdiction should proceed. We cannot know whether any hearing which might go ahead in this jurisdiction – if oral evidence were allowed – would follow a similar timeframe or course. Further, in any event, Carter does not address the fundamental issue that now confronts this Court; whether it would be constitutionally inappropriate for this Court to hear evidence with a view to assessing, for itself, the necessity of the measure. We therefore put Carter v Canada to one side (noting that the Court in Conway reached a similar conclusion on the relevance of that case: see [123]).

[39]We are, however, more troubled by what Lord Mance said in Nicklinson, a domestic case, which concerned similar domestic issues as are raised by this challenge. Lord Mance’s comments, to the effect that the Courts should hear primary evidence, appear to run directly contrary to what Lord Sumption said, namely that Parliament is better placed to hear evidence and reach an evaluative judgment. Both Mr Bowen and Mr Strachan indulged in the forensic exercise of seeking to count up support from other members of the Supreme Court in Nicklinson for the particular proposition in issue. Thus, Mr Bowen, in his Grounds, asserts that the Supreme Court in Nicklinson decided by a majority of 5-4 that the Court was competent to consider the proportionality of section 2 (see para 17.2). Mr Strachan, on the other hand, in his Grounds argues that all nine Justices of the Supreme Court in Nicklinson – including Lord Mance – recognised that Parliament was the preferable forum in which to determine the substantive question of whether the law should be changed (see paras. 39 and following).

[40]Speaking for ourselves, in our judgment, these forensic efforts only served to demonstrate the complexity of the Supreme Court’s judgment in Nicklinson. The extent to which this forensic exercise is worthwhile (as opposed to focussing on the substantive merits of the claim) is itself a matter for argument. We recognise that the Court will need to study Nicklinson carefully before deciding which of these two views is to be preferred on this point and what significance such a conclusion has for the future management of this claim.

[41]Having said that, we accept Mr Bowen’s submission that the outcome of this application is likely to have a very significant impact on the outcome of the claim. If Mr Bowen is not able to cross-examine the witnesses proffered by the Secretary of State, his case will necessarily be limited to submissions on the written evidence, including the Secretary of State’s expert evidence which will be unchallenged. Conway stands as an unhelpful precedent to him, and unless it is reversed on appeal, he would seek to distinguish it. There are, of course, differences between this case, and Mr Conway’s case: the particular circumstances of each claimant are different, and the scope of the legal argument is different, not least because this case involves a challenge on grounds of Art. 2 as well as Art. 8. But, as Mr Bowen recognises, there are many similarities too. By contrast, if cross-examination is permitted, then this case takes on an entirely different shape and a range of arguments are likely to open up on the evidence.

[42]This application goes to the heart of the case which Mr Bowen wishes to pursue. It is not so much concerned with an issue of procedure as matters of real substance. In truth, the effect of this application is to promote the constitutional issue to the forefront of the case, rather than being just one of several components in the proportionality analysis. That constitutional issue, as it emerges in this case, is whether it is appropriate for the court to hear primary evidence on issues of policy, in the context of a challenge to the proportionality of section 2, or whether that this is something that only Parliament should appropriately do.

[43]Having identified that as the central issue, we conclude that it is best resolved by way of a hearing to determine a preliminary issue, so that the Court can hear full and focussed argument on it. If Mr Bowen succeeds on the preliminary issue, and persuades the Court that it should hear the evidence and make the proportionality assessment based on that evidence, then it will be for the Court to give such directions as it sees fit to enable that further hearing to take place. The Court is likely, if it gets to that point, to consider transferring the case out of the Administrative Court into the Queen’s Bench Division, for hearing before a single first instance judge. If Mr Bowen fails, then the case can proceed on the narrower and more familiar basis, by argument based on the papers without oral evidence, if and to the extent that there are matters which by that stage are remaining for determination.

[44]We also accept Mr Strachan’s argument that, at present, there is a lack of precision about what precisely it is proposed should be achieved by way of cross-examination, including the matters which will be in issue on the expert evidence. To an extent, that is a consequence of the novel nature of the application and its uncertain origins in case law. But we invite Mr Bowen to focus much more closely on the specific areas of dispute where cross-examination would (on his case) assist in resolving this case. The Court would be assisted by greater clarity on that aspect at the hearing of the preliminary issue.

Disposal

[45]We adjourn the Claimant’s application to cross-examine Baroness Finlay, to be determined following a determination of a preliminary issue. Both Mr Bowen and Mr Strachan felt that, if the Court so required it, they would be able to agree (subject to the views of the Court) the terms of a preliminary issue and we invite them to do so. It clearly turns on whether the Court should hear oral evidence on policy matters for the purpose of determining the challenge to section 2.

[46]We would suggest a time estimate of two days for the hearing of the preliminary issue. It will be listed before a Divisional Court. Further directions necessary as a consequence of this judgment can be sought from the Court: these will be reserved to the President.