The Right to Die

Stephen Sedley

When suicide was decriminalised in 1961, assisting suicide continued to be a crime. This was in part an acceptance of the theological view of suicide as murder, but it was also a recognition of the difficulty in many cases, with the main actor by definition unable to testify, of distinguishing assisted dying from culpable homicide. The simple binary system that resulted, however, failed to take account of cases in which the deceased’s wish to die was explicit, considered and rational, and the need for help in accomplishing it demonstrable.

Article 8 of the European Convention on Human Rights, which since 2000 has been given domestic effect by the Human Rights Act, guarantees respect for individual autonomy except where an interference is permitted by law and is proportionate. In 2002 the Strasbourg court held in Diane Pretty’s case that the crime of assisting suicide was a proportionate limit on the right to die, since it protected ‘the weak and vulnerable and especially those who are not in a position to take informed decisions’. This again left out the case of patients who were in none of these categories but wished for good reason to be helped to die. For such patients the court accepted that the discretion of the Director of Public Prosecutions to refrain from bringing to trial those who helped them afforded a sufficient safeguard. But because the DPP’s discretion has to be exercised not only lawfully but consistently, the law lords, when Debbie Purdy’s case came before them in 2009, required that the DPP formulate and publish the policy by which his discretion would be guided. That policy, when published, exempted relatives who act out of compassion, but not medical professionals who do so.

When, in 2013, the cases of Tony Nicklinson and two others came to the Supreme Court, challenging the compatibility of the policy and the law with Article 8 (Nicklinson, in desperation, had starved himself to death, leaving his widow to continue his claim), four of the panel of nine justices (Sumption, Clarke, Hughes and Reed) held the legislation and the policy to be compatible with the Convention. Of the five who considered the legislation incompatible, two (Hale and Kerr) were prepared to make a declaration of incompatibility; but the remaining three (Neuberger, Mance and Wilson), forming a majority within the majority, held that any declaration of incompatibility should be deferred for long enough to give Parliament a chance to get its legislation into conformity with the Convention, failing which the court would intervene. The European Court of Human Rights has since declined to take the case any further.

At the time the Supreme Court judgment was given, in June 2014, Lord Falconer’s Assisted Dying Bill was before the House of Lords. It sought to give legal protection to medical professionals, as well as relatives and close friends, who helped a rational patient with a life expectancy of six months or less to die, provided two doctors confirmed that it was a settled, informed and voluntary decision and a high court judge was satisfied that all was in order. It was thus minimalist, omitting in particular patients in unendurable pain or distress with no predictable end in sight, but it was seen both by its opponents and by many of its supporters (though not by Falconer himself) as a first step on a longer road.

The second reading of Falconer’s Bill in the Lords last July prompted a debate in which the former Archbishop of Canterbury, Lord Carey, broke ranks with the mainstream religious lobby to support it. With the prospect of a substantial majority in its favour, the bill was sent on without opposition to the committee stage, where it survived attempts to sabotage it by hostile amendment; but it sank with the dissolution of Parliament for the general election. That seemed to be that for the immediate future. Then the top place in the private members’ ballot in the new House of Commons was won by Rob Marris, who is now introducing Falconer’s bill in the Commons. (Falconer is also reintroducing it in the Lords, but he is a long way down the pecking order.) The bill, which opinion polls suggest has the support of more than 80 per cent of the population, will be given its second reading in the Commons on 11 September. But anyone who expects a full and informed debate and a vote that reflects public opinion may be disappointed.

There are several reasons. David Cameron, who is known to be opposed to the measure, has declined to make parliamentary time – i.e. time allocated by the government whips – available for it. This means that Marris will have to run the gauntlet of the private member’s bill procedure. These bills are debated on a Friday, the day most MPs try to get away to their constituencies or to their homes. Those who are there at the start of the debate may drift away, possibly making the House inquorate, unless constituents persuade them to stay. The debate may be filibustered by individual MPs who want to push subsequent private members’ bills off the order paper. MPs opposed to the measure may keep their supporters outside the chamber in order to lure the mover into a fatal vote or, if they know they’re facing defeat, try to block a vote by refusing to appoint tellers. Even when a private member’s bill secures a majority on its second reading, it may be talked out by a single determined opponent at the report stage.

Despite all this, a private member’s bill which has drawn first place and which deals with an issue of public importance has a better chance than other bills of being seriously debated and voted on. If Marris’s bill is voted on, the indications are that significantly more MPs will vote against it than for it. In Scotland, where opinion polls showed a comparable level of public support, an Assisted Suicide (Scotland) Bill, containing a different regime from Falconer’s, was defeated in May by a margin of more than two to one.

Why are MPs so out of kilter with public opinion? Part of the answer, familiar to US politicians, may be fear for their seats. Any votes to be won by support for assisted dying are eclipsed by the damage that can be done by hate campaigns. Evan Harris, the Liberal Democrat MP for Oxford West and Abingdon from 1997, a thoughtful and decent man, lost his seat in 2010 after a campaign cheer-led by the Daily Mail, which dubbed him Doctor Death (he is medically qualified) because of his support for legal abortion and assisted dying: ‘Zealous, obsessive and self-righteous … fanaticism and lack of social grace … unmarried and without children … Though of Jewish origin, he is an aggressive secularist … his tone of pious ideological certainty … baseless rumours about his sexuality.’ It takes nerve to run the risk of this kind of public trolling.

So what will happen if and when the Assisted Dying Bill fails to become law – or even if it does? When the next case reaches the Supreme Court of a rational patient who needs a doctor’s help to put an end to a life that has become an indefinite torment, the judges will be invited to live up to their King Lear moment in the Nicklinson case. Assuming that randomised constitution of the court does not produce a new majority who rejects the Nicklinson decision (a tricky legal issue in itself), the court may have to declare that both the statute law that indiscriminately (or possibly now selectively) criminalises assistance in dying and the DPP’s policy which seeks to mitigate some of its most inhumane effects fail to meet the standard of personal autonomy vouchsafed by the Human Rights Act.

Such a decision will render the DPP’s present policy unlawful and require it to be reformulated, though whether the DPP can do this without breaching the embargo placed by the 1689 Bill of Rights on the dispensing power of the Crown is uncertain. So far as the 1961 Suicide Act is concerned, the declaration of incompatibility which is all the court is empowered to grant will call on Parliament to return to an issue which, like the termination of life support, it would rather leave to others. What notice MPs and peers take in that event of the judicial reasons for finding one Act of Parliament incompatible with another, and what – if anything – they choose to do about it, may open a new chapter in the UK’s constitutional history. So could the enactment in Edinburgh of a different but equally lawful assisted dying regime. More immediately, what would be the effect on Marris’s bill of discounting the votes of the 59 Scottish MPs on a measure confined in its effect to England and Wales? Could it turn defeat into victory? And if it did, would a bill that had secured a majority only by discounting the votes of Scottish MPs be recognised as law by the courts?