V

Enter the Human Rights Act 1998.

The Act will be in force in ten days' time. It is idle to pretend it should not apply. If the doctors are to operate they are in any event likely to operate after 2nd October. It will then be unlawful for the hospital as a public authority, as it will be unlawful for the court, to act in a way which is incompatible with a Convention right: Article 2(1) provides that in the first place everyone's right to life shall be protected by law. As applied to the State, this essentially requires there to be adequate laws against murder and so forth. If so construed there are adequate laws binding on the hospital to afford protection to patients. On that basis the hospital's resort to the court is an adequate and equal safeguard for Mary and Jodie. If, on the other hand the right to life is more literally construed, the protection has to be offered equally to both children and where there is a conflict there is the same impossibility of performance which has dominated the whole of this judgment. I cannot believe that the court in Strasbourg would reach any other conclusion for solving that dilemma than we have done. Mr Anderson Q.C. in his powerful written submissions argues that the negative obligation to refrain from the intentional deprivation of life in effect trumps the positive obligation to take steps to protect the enjoyment of the right to life. In my judgment Mr Owen Q.C. was right to point out that that is not the view the Commission took when deciding the abortion case, Paton v United Kingdom (1980) 3 E.H.R.R. 408 where, in para. 23, the Commission construed Article 2 to be subject to an implied limitation which would justify the balancing act we have undertaken.

For reasons more fully expressed by my Lords, with which I agree, I find nothing in the forthcoming Human Rights Act which calls for a different answer to the problem to the one I have already given.

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