Assisted Dying: Legislation

Lord Ahmad of Wimbledon Excerpts

Thursday 5th December 2013 Grand Committee

[Lord Ahmad of Wimbledon (Con)]

My Lords, I congratulate my noble friend Lord Glasgow on securing this debate. I listened carefully to each and every contribution. I hope that noble Lords will allow me to break with normal convention and not refer to every speech that was made, as important as they were. It is a matter for the Hansard record and, as has been said, there is another, more lengthy debate next week on a similar issue. As one of my noble friends said, this is a subject that we will return to not just next week but next year as well.

This House has debated the particularly sensitive issue of assisted dying on a number of occasions, sometimes at great length and sometimes, as on this occasion, with admirable succinctness. The noble Lord, Lord Popat, indicated to me that I need not worry about the clock striking three. I believe that this is the first debate specifically about this law in the current Parliament. It is therefore a welcome opportunity to address a matter that arouses, as we have seen today, high public interest, understandable emotion and at times, of course, controversy.

I sought to keep a tally, as noble Lords made their contributions, of who was for and who was against. It is interesting to do a tally, and I think that it was reasonably even. I can assure noble Lords that my maths is not that far off. Those who believed that there should be a change were certainly in the majority in this case. However, this debate invites different views not just in this House but in the country generally.

Both Houses have debated the Director of Public Prosecutions’ policy for prosecutors in cases of encouraging or assisting suicide in the last Session. The House of Commons passed, without a vote, a Motion welcoming the policy on 27 March 2012, but widely differing views were expressed on the desirability of legislative change. It is evident from this afternoon’s debate that there are strong and deeply differing views on both sides of this issue.

It would be disingenuous not to mention, as other noble Lords have done, the Assisted Dying Bill. I note that the noble and learned Lord, Lord Falconer of Thoroton, is in listening mode this afternoon. It was introduced in May this year and seeks to legalise, in England and Wales, assisted suicide for terminally ill, mentally competent adults who are reasonably expected to die within six months. The Government will take a collective view on the noble and learned Lord’s Bill in order to respond to the debate on specific provisions, but not before Second Reading. As things stand, however, no date has been set for Second Reading, and today’s debate is not about specific proposals. Rather, the question before us today is one of principle—whether there are any circumstances in which it should be legal to assist another person to die.

It is worth taking a moment to consider what we mean by “assisted dying”. As several noble Lords have said, it is not a term that exists in law per se. Rather, at times, it is a catch-all term and, wherever you stand on the matter, it is sometimes used for either assisted suicide or euthanasia or both. Both these areas of law raise very difficult moral issues and they often form part of the same debate. But there is an important distinction. Euthanasia, killing someone for compassionate reasons and possibly on the request of that person, constitutes murder in common law and carries a mandatory sentence of life imprisonment. Helping another person to take his or her own life is contrary to the statutory offence of encouraging or assisting suicide and carries a maximum penalty of 14 years’ imprisonment. There is no offence, or defence, of mercy killing, nor is there any exception to the offence under Section 2(1) of the Suicide Act 1961. As noble Lords will know, the Suicide Act was amended by Section 59 of the Coroners and Justice Act 2009, but the purpose was to clarify rather than change the law. By doing so, Parliament confirmed that it should remain an offence to encourage or assist suicide.

The Government’s view is that any change to the law in this area, whether in relation to euthanasia or assisted suicide, is a matter of individual conscience. It is, rightly, a matter for Parliament to decide rather than for government policy. However one interprets the term, assisted dying is a highly emotive issue which polarises opinion among the public, in the media and across the political spectrum. It raises the most profound ethical, moral, social and religious issues. As I am sure all noble Lords will agree, there are no easy answers. I am, of course, acutely aware of opinion polls suggesting that there is strong public support for a change in the law. But even if one accepts that the law should change, there is no consensus, in Parliament or elsewhere, on where a line should be drawn, what safeguards should be put in place and for whom. We should not underestimate the magnitude of any change that says that we can help people to kill themselves rather than helping them to withstand their suffering. Even the most limited step in this respect would represent a fundamental shift in the line that we have held to so far on the ethics of helping people to die.

As noble Lords have mentioned, much of the debate in recent months has centred on individual, high-profile cases, such as those of Nicklinson and Lamb v Ministry of Justice and AM v Director of Public Prosecutions, in which the Court of Appeal gave judgment on 31 July. It would be a hard person indeed who is not deeply moved by the terrible plight of those such as the late Tony Nicklinson, who sought to challenge the legal ban on voluntary euthanasia, and Paul Lamb, who took up that challenge. They were, and are, faced with the sort of difficult choices that none of us would ever want to make. As an appeal to the Supreme Court is currently pending, noble Lords will understand that it would not be appropriate for me to comment on that case or the related one of AM, where the challenge is to prosecution policy.

On the other hand, as some noble Lords have mentioned, we cannot lightly dismiss the fears of some of the most vulnerable members of our society—sick and disabled people who fear that a right to die could become almost a duty to die. Whatever the arguments for and against change, I am sure all noble Lords agree that sick and disabled people are entitled to the same protection in law as everyone else. It is important that the ongoing debate should not lead those whose lives are affected in this way to feel less valued.

My noble friend contends, as do others, that the law should be changed to reflect what is regarded as prosecution practice. Other people believe that the deterrent effect of the present law, combined with the compassionate exercise of prosecutorial discretion, offers the best of both worlds. The guidelines published in February 2010 by the former DPP set out the factors that prosecutors in England and Wales will consider when deciding whether it is in the public interest to prosecute in cases of encouraging or assisting suicide.

Among the public interest factors tending against prosecution are that,

“the victim had reached a voluntary, clear, settled and informed decision to commit suicide”,

and that the suspect was “wholly motivated by compassion”. This has been interpreted by some as meaning that the CPS will not prosecute those who help terminally ill relatives to die. One of the public interest factors tending in favour of prosecution is that,

“the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional”.

This has been alleged to cause difficulties for healthcare professionals because it is not clear what constitutes assistance.

Particularly in view of the litigation currently before the courts, it is not appropriate for me to comment on the merits or otherwise of prosecution policy. What I can say, unequivocally, is that the DPP’s policy has not changed the law. Only Parliament can do that. Nor does the policy mean that cases of encouraging or assisting a suicide will not be prosecuted in England and Wales. Assisted suicide remains a criminal offence. As with all criminal offences, allegations of encouraging or assisting suicide will be reviewed individually on the basis of their particular facts and circumstances and against the criteria of the offence-specific policy and of the general Code for Crown Prosecutors, with its two-part test of sufficient evidence and public interest.

The legal, administrative, practical and resource implications of any change to the law in this highly controversial and emotional area are considerable. As noble Lords have indicated, in the very limited time available this afternoon we cannot do justice to them. I have no doubt that the debate will continue in one form or another in Parliament and in other forums. In closing, I once again thank all noble Lords for their contributions, and I am reminded of Kipling:

“If you can fill the unforgiving minute

With sixty seconds’ worth of distance run”.

I also congratulate noble Lords on achieving that aim.