Richard Dawkins has put up a new essay on assisted dying over at richarddawkins.net, in response to the High Court’s decision in the case of Tony Nicklinson and someone named simply AM, who is in a similar situation to Tony Nicklinson. He begins it with these words:

"I can hardly bear to see poor Tony Nicklinson’s face as he hears the news that he is not allowed to die. I am ashamed of my country and its laws".

The question is: how can anyone see Tony Nicklinson’s face as he breaks down at the news that his judgement about the value of his continued life will not be respected, and that he must find some other way to end his torment?

The crucial decision of the court is expressed in these words:

"78. A court hearing an individual case, concentrating rightly and inevitably on the dire circumstances of the claimant, is not in a position to decide such broader questions, but its decision would create a precedent which would affect many other cases.

79. As to constitutionality, it is one thing for the courts to adapt and develop the principles of the common law incrementally in order to keep up with the requirements of justice in a changing society, but major changes involving matters of controversial social policy are for Parliament."

And then the judgement goes on to quote “ample support for that proposition.” Amongst the supports is the judgement by

Lord Reid [who] said in Shaw v DPP [1962] AC 220, 275:

“Where Parliament fears to tread it is not for the courts to rush in.” [para 79]

That, however, is a remarkable statement, for the courts are there precisely to protect citizens in the case that Parliament fails to act in respect of issues that concern matters of justice, defence or rights and compassion. Parliament has so far failed to act. There is absolutely no reason within the common law that a precedent could not be set, and the precedent, as I suggested yesterday, could have been protected from uncontrolled ramifications by giving Parliament the time and the opportunity to act in respect of issues raised by the judgement. That is precisely what Madam Justice Lynn Smith did in the Carter decision in British Columbia, thus showing that she was much wiser than the judges of the High Court in London. Justice Smith made a limited judgement that Gloria Taylor had legal permission to receive help to die, and gave Parliament a year to adjust the law to reflect the protection of rights that is now being denied to those who are in Gloria Taylor’s situation. What the High Court could have done, and, in my view, should have done, is to have given Tony Nicklinson and AM the relief that they sought, while at the same time putting Parliament on notice that they must bring the law up to date in such a way as adequately to protect the rights of others so situated, whilst at the same time protecting those who might, in the opinion of some, be put at risk by the recognition of such rights to die.