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Debbie Purdy, the Lords and assisted suicide: the easy way out?

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.

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  1. Carl,

    Excellent, thoughtful and well considered post.

    I am no lover of Debbie Purdy's take on her condition ;as far as I am concerned, she has set the cause of those trying to contain and live with the disease back at least 20 years; thanks to her, the media once again report MS as a 'Terminal' condition; given the idiosyncracies of the disease which varies hugely in severity, it can not be generally described in this manner.

    Having said this, the law with respect to Assisted Suicide (Euthanasia?!)now simply screams for concrete Parliamentary action. I doubt The DPP will ever be able to get his policy statement drafted in a manner to please and sate,, no matter how hard he tries.

    As to my own opinion, well, I'm entirely with the slippery slope camp, I'm afraid…….

  2. Carl,

    Spot on. My only question is whether it's as clear as you say that the DPP could not lawfully have a policy to prosecute in every case. I take your point about paras 59, 68 and 74, but in para 26 Lord Hope is at pains to make it clear that he's not going into the substance. It's academic in practice, though.

    But just to reinforce your main point, what would Parliament do if it thought the DPP's guidance was too lenient? Parliament could do no more than it already has done to express its disapproval of assisted suicide, by making it an offence (assuming it is an offence, of course). To overturn the guidance, would the legislation have to set out in detail how the DPP's discretion should be exercised? That would be very odd.

    Of course, in practice Parliament probably wouldn't want to intervene in that way. And as it happens, I agree that assisted suicide shouldn't always be a crime. But I think this shows that the mechanism which the House of Lords has resorted to is not as principled as it should be.

  3. Interesting point: what could Parliament do? I suppose they could repeal s2(5) and so remove the need for the DPP's consent, for a start. It could also bar the DPP from issuing guidance, or else require him to issue guidance but say some of the things the guidance had to say. All a bit odd, as you say.

    I completely agree: just raising the question what Parliament could do, and the oddness of any possible answer, shows there's something fishy about where we've got to.

  4. I know that it will be unfashionable and perhaps even unpopular to say it but, in my view, the House of Lords decision actually makes an already difficult legal situation worse.

    No matter how carefully the DPP writes the "guidance" (or "policy" as Lord Phillips called it), the law will remain that those who assist might be prosecuted – (and, on one possible view, for murder). The guidance will itself have to be interpreted and only the courts can do that. Hence, further difficult and expensive litigation may well be necessary. Also, is it not usually unlawful to have rigid policies which fetter the discretion of those who have legal responsibility for decision-making.

    Parliament is our supreme law-maker and it is for Parliament to amend the Suicide Act 1961. The Purdy decision places the law on the path to muddle. Lord Falconer's bill was voted down and more is the pity. At least, his was a principled attempt to bring some rationality to the law – as, I believe, Lady Hale acknowledged (paras 57 and 58).

    I agree that it is a pity that the House did not tackle the basic point of whether the 1961 Act is incompatible with Article 8. Was the matter argued? It does not look like it and their Lordships seem to have latched on to the fact that the DPP gave reasons in the Daniel James case and admitted that the existing code for Crown Prosecutors was not adequate to deal with Daniel's case let alone a case such as Mrs Purdy's.

    Another aspect of some of their Lordships speeches worried me. They refer to there now being the CPS Serious Crimes Division (e.g. Lord Hope at para 52) but they also refer to fuller guidance assisting the Police on the issue of whether to refer a case (e.g. Lord Hope at para 46). Surely, the Police ought to be required to bring any case to the attention of Crown Prosecutors?

    In recent times, Parliament has passed all manner of highly controversial legislation. The amendment or replacement of the now antiquated Suicide Act 1961 appears to have widespread public support so that "compassionate assistance" (as it is now being called) is permitted. This will not be easy to define but it is for Parliament to grasp the nettle and to do the job for which it is there. [Falconer's Bill was a good start]. If Parliament did that, it might not be necessary for those who can no longer bear life to have to travel – perhaps alone – to Switzerland in order to die a lonely death away from those who love them.

    I watched their Lordships giving their last 7 judgments in the Chamber of the House of Lords. It was the end of many decades of existence for a court which has commanded respect throughout the world for its integrity and for the intellect and rigour of the giants of the legal profession who sat there – (the likes, in modern times, of Reid, Wilberforce, Browne-Wilkinson, Bingham). I worry for the future of the new Supreme Court. It will not do for it to lack legal rigour and throughness and it must not be a factory for the production of the sort of fudge that may result from the very last decision of the House of Lords. I hope that it is in capable hands but I wonder.

  5. I agree, Peter. Another aspect of the fishiness is indeed the idea that this "policy" can bring certainty, when as you say, it must always be for the DPP to consider each case individually and not to have a policy so rigid as to fetter him.

    An unsatisfactory fudge.

  6. I think there is a fundamental issue raised by this appeal which everyone is pretending is not there, which is the extent to which the law, prosecuting policy and behaviour should coincide. In an ideal world, they should but, in reality, they do not. Those who support a liberalisation of assisted suicide often use the fact that it happens a fair amount and is rarely prosecuted as evidence in support of their cause but, in the Netherlands, there are a number of things which remain illegal which now happen because they are deemed to depart from the law to a "small" degree, such as assisting mentally ill people to commit suicide. With such logic, a slippery slope is inevitable and similar arguments could be made about other policy proposals which supposedly reflect reality, such as reducing the age of consent.

    What the Law Lords have done is grasped this nettle and confirmed that a gap between the law and prosecuting policy is a necessity which is unavoidable. If so, then prosecuting policy becomes a form of quasi-legislation which must be clear and which could interfere with human rights if it is not. It perhaps should be created by Parliament rather than by the DPP but I do not agree that changing the criminal law is the solution.

  7. The House of Lords (in its legislative role) agreed with you James when it rejected Lord Falconer's proposed amendment to the Coroners and Justice Bill.

    The problem is that further clarity will not actually result from the Law Lords decision in R(Purdy) v DPP for the reasons mentioned above.

    Hence, we are stuck in a "worst of all worlds" situation with a State Official being left to draw up guidance.

    It is a difficult one but really it should be for Parliament to find out where public opinion really lies and to amend the law if necessary. That is why we have a Parliament and it really ought to do its job.