Assisted Suicide

Lord Garnier Excerpts

Tuesday 27th March 2012 Commons Chamber

[The Solicitor-General (Mr Edward Garnier)]

I begin by congratulating my hon. Friend the Member for Croydon South (Richard Ottaway) on initiating this debate. His motion and the amendments tabled to it reveal not so much a political issue as a legal and an ethical or moral question, but either way it is here in Parliament, a place that must be at the very centre of our country’s political deliberations, that we should debate these questions and shape the laws that provide the background to and the boundaries of the criminal law.

Parliament makes our laws and has a vital role when the courts can no longer develop or reveal the common law. When a Government take the initiative to change the law, when Parliament on its own initiative decides to change the law or when the judges in our higher courts can no longer develop the common law, we come here, to Parliament, to deliberate on what the law should be and, where appropriate, to make the necessary changes to our law.

Let me make a few preliminary points. First, it is the position of the Government that the substantive law on assisted suicide is a matter of conscience and not a matter of party political controversy. If the House divides today, right hon. and hon. Members on the Government Benches will vote—or abstain—as their conscience dictates and not in response to the advice of the Government Whips. I dare say the same applies on the Opposition Benches.

Secondly, I acknowledge the variety of views held on assisted suicide, euthanasia, and the care of the terminally ill, and quite understand that many will use this debate to express their opinion on matters that may be outside the strict confines of the DPP’s guidelines on assisted suicide prosecutions. I do not intend to express any personal views this afternoon. Rather, I shall make some dispassionate points about the role of the DPP and of prosecutors under his leadership and about the law on assisted suicide.

Thirdly, as a Law Officer, I want to emphasise the importance of the independence of prosecutors and the undesirability of statutory guidelines for prosecutors in any area of law, not least this one. Fourthly, I repeat what I said a moment ago—that ultimately Parliament is supreme and may legislate in this area if it wishes to do so. Fifthly, I will briefly outline the Government’s strategy for end-of-life care. A good many right hon. and hon. Members from all parts of the House have added their names to the amendment tabled by my hon. Friend the Member for Congleton (Fiona Bruce) to encourage the development of specialist palliative care and hospice provision.

No doubt every Member of Parliament knows of a hospice that is deserving of particular praise for the work its staff do in bringing care and sensitivity to the dying and the bereaved, and of doctors and other medical staff who specialise in palliative care. In Leicestershire we are fortunate to have the LOROS hospice for adults and the Rainbows hospice for children, both of which do so much to help their patients and the families, and I cannot commend them highly enough.

Let me now turn to the Suicide Act 1961. Until that Act was passed, suicide, and thus attempted suicide, were crimes. As late as the 1950s, as my hon. Friend the Member for Croydon South told us, a few people who had failed in their attempt to commit suicide were imprisoned. The 1961 Act decriminalised the act of suicide, but section 2 of the Act made it an offence to assist the suicide or attempted suicide of another person. It is, therefore, a highly unusual offence. I cannot think of another example where it is a crime to assist someone in doing something which is not itself a crime, but given that assisting another person to commit suicide is an area potentially open to a good deal of abuse, it was thought right to make it a criminal offence.

[Dame Joan Ruddock]

I am grateful to the Minister. I want to take him up on that point, because he has made the seminal point that this is a very unusual—perhaps unique—circumstance, in which assisting is a criminal offence, but suicide is not an offence. Because it is such an unusual case, it may be reasonable for the Government to consult on whether the guidelines should go into statute.

[The Solicitor-General]

I listened to the right hon. Lady’s speech and although I understood it, I am not convinced by her argument. None the less, she is perfectly entitled to make it.

Assisting or encouraging suicide is an offence and the maximum penalty for it is 14 years. It should not be thought that the law is not clear. We are talking about the application of the law when it comes to a decision about whether or not to prosecute. Those are discrete issues.

It cannot be acceptable to permit people to encourage others to kill themselves. Most often the people concerned would know each other, but the growth in suicide websites means that the person doing the encouraging could well be wholly unknown to, and not even present with, the person being assisted or encouraged to kill himself. To clarify the position the Coroners and Justice Act 2009 updated section 2 of the 1961 Act. That change was made amid growing concern about misuse of the internet to promote suicide and suicide methods, and to reassure the public that the internet was not outside the law. It is now clear in that 2009 Act that it is not necessary for a person committing the offence of assisted suicide to know the person whom he is encouraging to commit suicide, or even to be able to identify him. The change to section 2 came about via the Coroners and Justice Act, and any further changes to the law must, I suggest, be a matter for Parliament to decide.

Although today’s motion does not call for a change in the substantive law, and the amendment tabled by the right hon. Member for Lewisham, Deptford (Dame Joan Ruddock) calls for the DPP’s guidance to be put on a statutory basis—no doubt following consultation, but I think I can paraphrase in that acceptable way—she does not ask for a change in the statute itself. I have no doubt that some may suggest during this debate that there should be a change in the criminal law relating to assisting or encouraging suicide. I do not advocate a change in the law, nor do I think it sensible to place the DPP’s guidance on a statutory footing.

[Alun Michael (Cardiff South and Penarth) (Lab/Co-op)]

The Solicitor-General has come to a point that concerns me. Does he agree that passing the amendment would appear to be doing something that is very close to changing the law, and it would be a pity to give that impression?

[The Solicitor-General]

I think that I am entitled to look at the amendment proposed by the right hon. Lady on its face value, and it proposes to change the current arrangements. It proposes that there should be a consultation as to whether the policy and the guidelines should be placed on a statutory footing. However, I think that I am entitled to infer from that that those who support that aspect of the amendment wish the DPP’s guidelines to be on a statutory footing. I disagree with that. I do not think that that is sensible.

[Ian Swales (Redcar) (LD)]

Can the Solicitor-General think of another example where we expect people to commit a crime knowingly, and only find out later whether they will be prosecuted or not?

[The Solicitor-General]

I do not think that I will answer that question, because, to be honest, I am not entirely sure I understand it. I apologise if my failure to understand is entirely my own fault.

The DPP’s guidance relates to the framework within which prosecutors apply the law as it currently stands, and I suggest that that is a framework that should remain in place as it currently stands. As Law Officers, it is for the Attorney-General and for me to superintend the Crown Prosecution Service and to account to this House for its activities and performance, but prosecutors have always had discretion to consider what the public interest might be when they bring criminal proceedings, and it is for prosecutors to decide how to exercise that discretion.

That is set out in the code for Crown prosecutors, the document issued by the DPP that provides guidance on the principles that prosecutors should apply when making decisions on whether to prosecute in any particular case. The test requires—I paraphrase—the prosecutor to be satisfied that there is sufficient evidence to convict and that it would be in the public interest to prosecute. Sometimes a statute requires that either the DPP or the Attorney-General—for these purposes that means the Solicitor-General as well—must consent to the prosecution, and in the case of a prosecution under the Suicide Act 1961, as amended by the Coroners and Justice Act 2009, it is the DPP who has to consent to the bringing of criminal proceedings.

However, it has been clear for many years that it is not in every case where the evidential test is passed that a prosecution must be advanced. In 1951 in the House, the then Attorney-General, Sir Hartley Shawcross, said:

“It has never been the rule in this country—I hope it never will be—that suspected criminal offences must automatically be the subject of prosecution.”—[Official Report, 29 January 1951; Vol. 483, c. 681.]

Those words underscore the essential independence of our prosecutors from Government, from Parliament, from newspapers and their readers, from religious leaders, from the expert and ignorant, and from all who would seek to interfere in their discretion and independence. As Law Officers, the Attorney-General and I support and protect the independence of prosecutors in their decision making. With that in mind, I will turn to the DPP’s policy document.

[Guy Opperman (Hexham) (Con)]

I make a declaration as a former criminal prosecutor. It was frequently said that we were often consulted but often ignored. In these particular circumstances, given that there may be a presiding view of the Government, what is to be lost by having a consultation and finding out what is the view of the people?

[The Solicitor-General]

I suppose that it is a matter of attitude. I happen to think that the Government were elected to take decisions. I have expressed my view on the matter. No damage will be done to the constitution, and the world will not come to an end, if we consult on this issue. I happen to be of the view that we do not need to put this policy into statutory form. It will create a form of sclerosis and lead to all sorts of problems that may not be intended. Therefore the better position is to leave the thing as it is. If my hon. Friend, either as a Member of Parliament or as a private citizen, be he a former prosecutor or a former defender, wishes to advocate the consultation process, he should go ahead. I will not stop him. I will just simply not support him.

[Steve Baker (Wycombe) (Con)]

Whereas the guidance at paragraph 6 is clear that it does not decriminalise the offence, if the remainder of the guidance were put in statute, would that not therefore decriminalise assisted suicide, and is not that the crucial difference?

[The Solicitor-General]

There is a growing confusion—perhaps it was there already—between the guidelines, which are the DPP’s policy statement on when it is and is not thought appropriate to prosecute and the factors that he will consider, and the substantive law that is set out in section 2 of the Suicide Act. The two are quite different. As I mentioned to the right hon. Lady, it is a criminal offence to encourage or assist the suicide of another, and if people are prosecuted and convicted, they are very likely to receive a prison sentence measured in years, the maximum being 14 years. But the DPP’s guidelines are not the law. They are a public document that informs us how it is that he considers whether or not it is right to bring a prosecution in any given case.

I agree with my hon. Friend the Member for Croydon South in commending the DPP for producing a document that is notable for both its clarity and its compassion. The House is fully entitled to consider the way the criminal law it enacts is applied in practice, but 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, must be in all our interests.

[Dame Joan Ruddock]

I am really grateful to the Solicitor-General for giving way. Will he just acknowledge that a future DPP could overturn the guidelines, and does he think that that would acceptable?

[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.

--- Later in debate ---

[The Solicitor-General]

rose—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. I take it that the Solicitor-General is coming to the end of his speech, because we are up against time and many Back Benchers wish to speak.

[The Solicitor-General]

With your permission, Mr Deputy Speaker, I will avoid answering my hon. Friend’s question in order to save time.

If we are to continue to provide care where and how people want it, to expand this work into the community and to care for people with conditions other than cancer, hospices and other providers of palliative care need the right support and the right funding. We need a funding system that can last, that provides stability and security in the long term and that actively encourages community-based palliative care so that people can stay at home or in a care home as they wish. Of course, this has to be affordable within the constraints of the current financial climate.

The independent palliative care funding review looked at options to ensure that the funding of hospices and other palliative care providers is fair and covers both adult and children’s services. When it reported last summer, it recommended that a number of pilots be set up to collect data so it could refine its proposals, because of the lack of reliable data currently available. Last week, my right hon. Friend the Secretary of State for Health announced the seven adult and one children’s palliative care funding pilots selected for this important work. They will start in April and run for two years, and our aim is to have a new funding system in place by 2015, a year sooner than the palliative care funding review proposed.

I did not wish to be rude to my hon. Friend the Member for Congleton. I do not know whether there is a correlation or a causative link between the two points she drew to our attention in her intervention. None the less, if the matter comes to a Division, I urge the House to accept the motion moved by my hon. Friend the Member for Croydon South, to be deeply sceptical about the amendment tabled by the right hon. Member for Lewisham, Deptford and to look with interest and care on the matter proposed by my hon. Friend the Member for Congleton.