Assisted Suicide

Debate between Lord Garnier and Fiona Bruce

Tuesday 27th March 2012 Commons Chamber

[The Solicitor-General]

If a future DPP overturned the guidelines, he would be judicially reviewed for behaving in a rather whimsical way. I also suspect that the right hon. Lady would be one of the first to stand up in the House and censor him for doing so. I can assure her that placing things in statute will not assist her cause. She and I share the view that the DPP’s guidelines are a good thing. Why not leave them where they are and let them remain a good thing?

As I said, I hope that by considering the guidelines the House will not only commend them but also note that they are based on the principle of independent prosecutors exercising their discretion in their decision making, which, ultimately, is in all our interests. The guidelines inform others how he will exercise his discretion, but as with any guidance or policy issued by the DPP, it is subservient to the law of Parliament and the decisions of the higher courts. If the law changes, any relevant prosecutor’s guidance must also change. It will change the more flexibly if it is not ossified in statute.

I make a trite point, but the law cannot do everything. We need flexibility in its application, and to be able to apply the law and to make decisions about whether or not to prosecute on the facts and the surrounding circumstances of each case and on a case-by-case basis. In this area of law, perhaps almost if not exclusively above all others, we need to approach the question of whether to prosecute with sensitivity and with care. Indeed, the High Court, in its judgment on 29 October 2008 in the Purdy case—the very action that, once it had been considered by the House of Lords in 2009, gave rise to the guidelines—said that the nature of the offence created by section 2(1) of the Suicide Act is such that

“the variety of facts which may give rise to the commission of that offence, and therefore which may result in a person being prosecuted, is almost infinite”.

The section 2 offence is very widely drawn. It covers all situations and creates no exceptions, which is why, I suggest, the DPP’s consent to a prosecution is so necessary, and why the House of Lords directed the DPP to publish the policy that we now have before us.

Guidelines or a policy statement are not required in every criminal case, but I invite the House to consider that such guidelines are best issued by prosecutors and for prosecutors, although available for public inspection and comment. Quite apart from the propriety of guidelines for prosecutors being a matter for prosecutors, there are some practical considerations to guidelines remaining on a non-statutory basis. Surely to place them in statute would be to attempt to confine the infinite. Policies and guidance are there to provide practical assistance to prosecutors on how particular categories of cases should be approached and the internal processes that should be followed. Therefore, there needs to be a certain amount of flexibility, not least because, as case law develops and public opinion and our collective moral view alter, the law changes and these guidelines and the policies will need to change in response, often quickly.

I therefore urge the House, as a matter of good practice, to conclude that the current flexible and—I admit—pragmatic approach should be retained. That said, we are all entitled, inside and outside the House, to comment on the guidelines themselves or on a decision to prosecute or not prosecute in any given case, subject to any temporary constraints imposed by the law of contempt and defamation. We should not build into the process a sclerotic arrangement that will not improve the application of the law from year to year.

The CPS has published a number of policies and guidance documents over the years. They are available on its website and are there to help the public understand how decisions are taken by prosecutors. During the past two years or so, that has included policies on prosecuting human trafficking cases, public protest cases and cases about perverting the course of justice when victims in rape and domestic violence cases make false retractions. Should these policies be codified, too? Should they be placed on a statutory footing? As my noble Friend Baroness Berridge said in the other place when this matter was debated last month:

“It is imperative that DPP policy and decisions are free from, and seen to be free from, Government interference…If the House were asking how the Government are assessing the application of DPP policy for prosecutions in cases of phone-hacking, constitutional alarm bells would, I believe, have gone off immediately.”—[Official Report, House of Lords, 13 February 2012; Vol. 735, c. 629.]

I agree with her.

My hon. Friend the Member for Croydon South said that the application of the existing law and, by implication, the application of the guidelines in this area is a pressing issue. It is not so much the application of the existing law that is the issue, but what the substance of the existing law is. I leave others to decide how pressing the issue might be. At the risk of repeating myself, I will say that if Parliament wishes to change the law in this area, that is a matter for Parliament, but we should not confuse the way prosecutors apply the law with what the law is or should be.

As I draw my remarks to a close, I will briefly address the amendment tabled by my hon. Friend the Member for Congleton and supported by a great many right hon. and hon. Members. She is encouraging—I assume—the Government to develop specialist palliative care and hospice provision further and, in responding, I transmogrify my role as a desiccated, boring and apolitical Law Officer to that of a thoroughly exciting political Minister.

The Government recognise that many people, their families and carers do not receive the quality of end-of-life care that we would all wish to receive. Hardly a month passes without our reading in the national or local press or hearing in the broadcast media of some terrible episode of personal suffering endured by an elderly person at the end of their life. Every such story demands of us that something more should be done to ensure that the care of the terminally ill, no matter what age they are, should be improved. The Government are committed to developing and supporting end-of-life and palliative care services to ensure that the care people receive, whatever their diagnosis, is compassionate, appropriate, of good quality and permits the exercise of choice by patients. That choice is, of course, within the current legal framework. For many, that means being able to choose to be cared for and to die at home, or in a care home when that has become someone’s home. However, we know that most people die in hospital, the place where they would least prefer to be.

Although realistically many people will continue to die in hospital, we know that more people could be cared for and die at home. We want services to be set up to help people make that choice, and commissioners and providers need to ensure that the right services are available in the right places and at the right time. Much needs to be done to make that happen, and we will review progress in 2013 to see how close we are to being able to offer that choice. It is very much part of the work to implement the Department of Health’s end-of-life care strategy. Published in 2008 under the previous Government, the strategy received cross-party support. It aims to improve care for people approaching the end of life, whatever their diagnosis and wherever they are, including enabling more people to be cared for and to die at home.

[Fiona Bruce]

I am extremely pleased to hear my hon. and learned Friend say that. It will build on what is a very high standard of care in many parts of the country, as I have already mentioned. The point I was seeking to emphasis, in particular, was that evidence shows that where there is a high standard of palliative and end-of-life care, there are fewer requests for assisted suicide. That is why it is so important that we focus on supporting and developing further end-of-life care specialism and treatment in this country.