I’ve been slow in reacting to the Lords’ final judgment yesterday in R (Purdy) v DPP, partly because I was in Cambridge, but partly because I’ve been worrying at the judgment since I heard the news reports yesterday, and even more so since I read it. I’ve been worrying about what’s wrong with it. Because I think something is wrong, though I admit I’ve not found it easy to pin down.
For the avoidance of any doubt, let me make it clear that I’m very sympathetic to Debbie Purdy, am in favour of legalising assisted suicide in some circumstances in this country, was attracted by Lord Falconer’s recent attempt to amend the law and wish it had succeeded. Charon interviewed Lord Falconer about it earlier this week. But none of that means I think the Law Lords have reached the right legal solution in the case before them yesterday; in fact I think the ruling is a classic fudge which conveniently takes the pressure off Parliament and government – and off the judges themselves – in this morally contested area.
The essence of the judgment is that the legal uncertainty facing Debbie Purdy and her husband – could he be prosecuted after her death if he helps her end her life in Switzerland? – is a breach of her Convention right to respect for private life, a breach which can be remedied by a policy statement by the DPP. The offence of assisting suicide in section 2(1) of the Suicide Act 1961, which creates a blanket ban in all circumstances, interferes with the article 8 Convention right, as held by the European Court of Human Rights in Pretty v UK; although in that case the ECtHR ruled the ban does not breach article 8, because justified, it did not consider whether the ban was “in accordance with the law”. But (see Lord Hope’s speech at paras. 40-53) the offence does not meet that requirement since in the absence of detailed, specific guidance from the DPP, you cannot regulate your behaviour so as to be confident of avoiding prosecution.
It hangs together reasonably well, this analysis. The analysis of Debbie Purdy’s uncertainty in terms of the principle of legality is seductive. But if the blanket ban in the Suicide Act does not meet the Convention test of legality, then the Suicide Act itself must be contrary to article 8. How can the uncertainty caused by the breadth of the law be cured by intervention from the DPP? He is no legislator. Nor does he have power to change the law. As their Lordships stressed more than once, their judgment does not purport to alter the law.
Not do I think their Lordships’ human rights analysis was really about uncertainty – at least, not uncertainty alone. Underlying the speeches is an assumption – in my view a correct assumption – that there are some circumstances which may be criminalised by the Suicide Act, read on its face, but where prosecution would breach article 8. See for instance paragraphs 59 and 68 in Lady Hale’s speech, and paragraph 74 in Lord Brown’s. It is inconceivable that the Lords think the DPP’s guidance might say he will prosecute every case including Debbie Purdy’s husband, yet if the only issue really is uncertainty that might be a lawful outcome. The truth, surely, is that the Lords see the broad ban on the face of the Suicide Act as problematic in its substance.
Once you are of the view that section 2(1) on its face goes too wide and would breach article 8 if so widely enforced, then in terms of the Human Rights Act the alternatives are as follows. Either it is a fundamental feature of the legislation that it should criminalise conduct so broadly – in which case the legislation itself is incompatible with article 8, and the Lords could make a declaration to that effect. Otherwise, the provision can and must be read down under section 3 so as to be compatible with article 8. But none of their Lordships talked of possible incompatibility at all, or even considered section 3. Why not?
Had the Lords ruled the Suicide Act incompatible with article 8, they’d have set off a political and moral storm. The Act would have remained untouched; Debbie Purdy would have remained in the same position; Parliament would have been forced to confront the possibility of doing something. It would have been brave of the Lords, since it would be obvious they disagreed with the ECtHR which ruled the Suicide Act complies with article 8. They do disagree with it anyway, of course, because they say the ECtHR missed the “accordance with law” trick.
Had the Lords read the Suicide Act down, saying section 2(1) does not apply in Debbie Purdy’s situation, that would have been brave, too: there’d have been a storm of criticism that the Lords were legislating rather than interpreting law, usurping Parliament’s functions and indulging in unwarranted judicial activism. But that approach would seem to me perfectly defensible in terms of the Human Rights Act. If Parliament disagreed, it could amend the Suicide Act to restore its breadth.
But they’ve preferred a “third way”. I think the Lords were faced here with a situation in which their judgment might have had dramatic ramifications: but they’ve avoided them by alighting on an easy way out. Just as Parliament is afraid of this issue and would prefer it to be sorted out by judges, so the judges have shown themselves nervous of it too. And rather than smash the ball back into Parliament’s court, which I think a more rigorous application of the Human Rights Act would have required – whether or not their Lordships felt able to read the Suicide Act down – the judges have preferred to pass the moral parcel to the DPP, who is, in reality, given the task of coming up with new and better legislation. In doing so he will conveniently relieve the judges of the awkward task of interpreting the law clearly, and Parliament of the awkward task of revising it.
It’ll be interesting to see whether the DPP’s guidance will itself be challenged: that’d be a good thing as it would shift the focus where I think it should be, on what substantive law we need in this area. If on the other hand the DPP manages to come up with a policy no one wants to challenge, he’ll have performed his part brilliantly in what may be the very best kind of establishment fudge.
Some of their Lordships considered the fundamental question whether it’s an offence at all to do anything in England to assist a suicide that will take place abroad; Lord Phillips even considered whether assisting a suicide abroad might be murder in the law of England and Wales. Those seem to me important questions that I wish their Lordships had invited argument on and decided – again, their reluctance to do so was understandable, but arguably showed a lack of courage.
The Purdy judgment worries me. In finding a way of seeming not to change the law, the Lords has indirectly wished such a change into being by handing inappropriate power to an official. It’s cleverly avoided apparent politicisation, and come up with a way forward that might suit if not everyone, then many people including Parliament and government. There’s a good case for judges being braver, more naively legalistic and less politically sensitive than this. I fear a bench with such political nous.