Parliament is wrestling now with whether assisting suicide should remain a crime and whether its decriminalisation would expose vulnerable people to danger. Almost a thousand amendments have been tabled to the Terminally Ill Adults (End of Life) Bill. However, at least one more amendment is necessary if Parliament is to maintain its responsibility for legal change in this sensitive domain — the Bill must be amended to disapply the Human Rights Act 1998 (HRA). Without such an amendment, the practical effect of the legislation may end up being decided by judges.
The case for the Bill is that it will only legalise assisting the suicide of those who have a progressive illness or disease and who are expected to die in consequence within six months; assisting any other suicide will remain a serious criminal offence. The supporters of the Bill have stressed the importance of this limitation. The opponents of the Bill counter that once the principle is conceded — once assisting suicide is made lawful for in some circumstances — campaigners will immediately argue that it should be made lawful in the case of those who are not terminally ill, or are not expected to die within six months, or who are suffering for other reasons.
These are serious questions, and it is right that Parliament has been debating them. Parliamentarians need to consider whether there is any clear principle that supports the Bill’s limitations on what it allows or whether the reasons for changing the law are reasons that would also support expanding its scope, as John Keown argued in an important paper for Policy Exchange. Supporters of the Bill maintain that these concerns are immaterial because any future expansion of the legal regime would require Parliament to change the law, at which point any slide down a slippery slope could be arrested.
The problem with this argument is that Parliament may not have a free hand in any future debate about expanding the legislation. If the Terminally Ill Adults (End of Life) Bill is enacted, campaigners for expanding the scope of what the law allows will very likely apply to the High Court to use its power under section 4 of the HRA to declare the legislation incompatible with Convention rights.
The claimant might be a person who is terminally ill and yet has more than six months to live, a person who is suffering terribly from an illness, or a person who for other reasons views his or her circumstances of life as intolerable. The court would be invited to evaluate whether the exclusion of such persons from the regime for lawful assisted suicide is compatible with their rights under Article 8 (to respect for private and family life) and Article 14 (to be free from discrimination).
Campaigners for assisted suicide to be allowed have repeatedly attempted to use human rights law to secure a change in the criminal law, inviting our courts to tell Parliament that it must change the law. Happily, our courts have repeatedly declined this invitation, even if quite a few judges have clearly been tempted by it. The settled position is and ought to be that whether to change the criminal law is a matter for Parliament alone to decide. This position might change if the European Court of Human Rights were to depart from its earlier case law, as it often does, making new law that goes beyond anything the member states agreed and asserting a new right to be helped to commit suicide. But for the moment, the Strasbourg Court agrees that there is no such right.
However, if Parliament enacts the Terminally Ill Adults (End of Life) Bill, the dynamic changes. Parliament will have decided that some people can be assisted in their suicide — but not others. This raises an immediate question about whether this distinction can be justified, or whether Parliament has unjustifiably discriminated against those who fall outside the new law’s scope. At this point, questions about whether there is any stable principle that justifies the law’s limited scope will come rushing back both in Strasbourg and in the domestic courts. And it will be for judges in the first instance to decide this question and to frame the political context in which the matter is considered.
If one High Court judge declares the Terminally Ill Adults (End of Life) Act, as it would then be, incompatible with Convention rights, this would empower the Government, under section 10 of the HRA to amend the legislation by remedial order, which might mean entirely removing limitations or other “safeguards” decided on by Parliament.
The remedial order would require approval by a resolution of each House of Parliament, but this would be a radically different dynamic from the extended deliberative process that one sees with primary legislation. Each House of Parliament would face a take it or leave it proposition — remedial orders cannot be amended — and the Government might whip its backbenchers to support the order, reasoning that this is a matter of compliance with human rights law. This would be questionable, but it would make it much harder for parliamentarians freely to decide what the law should be.
This is all entirely predictable. It is also perverse. Why should anyone who opposes this legislation now — who thinks it puts the vulnerable in danger — change their mind because one or more judges say that the legislation’s scope is too limited? Why should anyone who supports the legislation as it stands — who thinks the limitation to the terminally ill is vital — change their mind because a judge takes a different view? They should not but they very well might, for human rights law is primed to distort parliamentary deliberation, to disable responsible democratic lawmaking.
Sir Stephen Laws and I drew attention to this risk in our recent Policy Exchange paper, The Future of Human Rights Law Reform, arguing that the case for legislative disapplication of the HRA in this context was overwhelming. What this means is that Parliament should amend the Bill to provide that a remedial order may not amend either the Terminally Ill Adults (End of Life) Act or the Suicide Act 1961. Opponents of the legislation before Parliament should support this amendment, because it would be a safeguard against later expansion without full parliamentary debate and decision. But supporters of the legislation should welcome this amendment too. It would help make credible their assurance that Parliament alone would decide on any future expansion.
The case for disapplying section 10 of the HRA is unanswerable. There is a strong case for disapplying sections 3, 4 and 6 of the HRA as well. Doing so would mean that our courts would have no jurisdiction to hear claims that the Terminally Ill Adults (End of Life) Act was incompatible with Convention rights and would not have power to declare it incompatible, or to gloss its meaning or operation in practice. If Parliament is to act responsibly in this matter of life and death, it needs to act now to avoid the law’s future being decided in a courtroom.
