Assisted Dying

Lord Keen of Elie Excerpts

Monday 6th March 2017 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am grateful to the noble Baroness, Lady Jay, for bringing before your Lordships’ House a matter which continues to be of great public interest and concern. As the noble Baroness herself observed in opening, the issue is complicated and difficult. Today is not the first occasion on which this House has debated this difficult and sensitive area of the law. Indeed, as today’s debate has illustrated, there are passionately and deeply held yet divided views on the issue. I certainly take issue with the suggestion by the noble and learned Lord, Lord Falconer of Thoroton, that this is “what everyone wants”. It clearly is not what everyone wants; indeed, I notice that the contributors to this debate are almost equally divided on this very complex and difficult issue. There is no arrogance to be attributed to those who take one side or other of this demanding debate.

It remains the Government’s view that any relaxation of the law in this area is an issue of individual conscience and a matter for Parliament to decide, rather than one for government policy. Of course, we are aware that assisted dying legislation has been introduced recently in some states of America and in Canada—very recently in four states of the United States—but since the Government have taken no policy position on the issue, we have made no assessment of such legislation in North America or elsewhere. I simply note that while five states in the United States have adopted such legislation, 45, of course, have not. Indeed, the only example that has been in place for some years is that of Oregon. As the noble Baronesses, Lady Howe and Lady O’Loan, and the noble Lords, Lord Alton and Lord Carlile of Berriew, observed, there are issues surrounding the attempted development of the law in Oregon. As the Supreme Court said in the case of Nicklinson and Lamb, information from the few jurisdictions where assisted suicide is lawful is,

“sensitive to underlying conditions such as standards of education, the existence of long-term relationships between GPs and patients and other social and cultural factors, which are not necessarily replicated in the United Kingdom”.

So it does not necessarily follow that a law which operates effectively—allegedly—in another jurisdiction would provide an appropriate basis for such legislation in England and Wales.

We should remember that “assisted dying” is not a term that exists in law. It is shorthand for two distinct things; namely, assisting suicide and euthanasia. However one interprets the term, assisted dying is a highly emotive issue. It polarises opinion among the public, in the media and across the political spectrum, even within groups which are generally supportive of or opposed to a change in the law, and it raises the most profound ethical, moral, religious and social issues. Of course, the Government are 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 and what safeguards should be in place and for whom.

As the law stands, there is no offence—or defence—of “mercy killing”; nor is there any statutory exception to the offence of encouraging or assisting suicide under Section 2 of the Suicide Act. That Act was amended in 2009. By amending the law, Parliament confirmed that an offence should remain in respect of assisted suicide. Whether the present general prohibition in Section 2 of that Act is incompatible with the right to a private life under Article 8 of the European convention was the central issue in the case of Nicklinson and Lamb, which the noble and learned Lord, Lord Falconer, referred to, in which the Supreme Court handed down judgment in 2014.

Like this House, the Supreme Court was divided on some of the issues before it. But the appeal in that case was dismissed by a majority of seven to two on the basis that it was not appropriate for the court to determine the issue of compatibility at that time. While not unanimous in its view, the court explicitly encouraged Parliament to consider the issue further, and Parliament has done so. Both Houses have subsequently had extensive debates on this issue. The Assisted Dying Bill, introduced by the noble and learned Lord, Lord Falconer, passed Second Reading without a vote on 18 July 2014, after almost 10 hours of debate, and was further debated on two full days in Committee, thereby indicating the level of interest and the division between Members over the fundamentally difficult issue that lay behind the Bill.

More recently, the other House debated the Assisted Dying (No.2) Bill in September 2015. That Bill was essentially the same as the Bill of the noble and learned Lord, Lord Falconer, as amended in Committee. It sought to legalise in England and Wales assisted suicide for terminally ill, mentally competent adults who are reasonably expected to die within six months. As the noble Lord, Lord Tunnicliffe, noted, following a lengthy debate, that Bill was voted down by a majority of 330 votes to 118. As things stand, therefore, the will of Parliament as a whole is that there should be no change in the law. Of course, that does not mean that the issue cannot be re-examined either in Parliament or in the courts. Indeed, today’s debate has again illustrated that the law in this sensitive area remains a matter of great concern to your Lordships. Reference was also made to further litigation that is ongoing in the courts. We are aware of that but it would not be appropriate at this stage to make any comment on such a case when it is still before the courts.

The debate on this issue is often characterised as being a choice between legalising assisted dying on the one hand and the provision of high-quality end-of-life care on the other, but the two are not mutually exclusive. Compassion for the dying person drives both sides of the debate. Wherever one stands on the desirability of legislative change, it is of the utmost importance that all dying people receive high-quality, compassionate care at the end of their lives. Equally, we are all as one, I am sure, in our desire to protect the rights of those who are vulnerable from direct or indirect pressure to take such a step. The central issue is then whether a blanket ban on assisting suicide is a necessary and proportionate way of achieving this.

Those opposed to change argue that any relaxation of the law would constitute too great a risk to sick and disabled people, and that safeguards would not necessarily give enough protection to vulnerable people who may feel pressure, whether real or imagined, to end their own lives. Those in favour of change argue that safeguards would protect vulnerable people from such pressure, while affording dying adults the choice of an assisted death if their suffering becomes too great. As the Supreme Court recognised in Nicklinson, there is a diversity of opinion about the degree of risk involved in relaxing the law in this area but not about the existence of the risk. It is unlikely that the risk of vulnerable people feeling pressure to end their lives can ever be wholly eliminated or that every person who thinks he or she has a legitimate right to assisted suicide can be assisted.

Whatever provisions may be proposed, therefore, the real question is: how much risk to the vulnerable is acceptable in order not to deny those who would genuinely wish to be assisted to commit suicide the opportunity of an assisted death? That is a very difficult balance to strike and there are no simple answers, especially when those who are vulnerable are not necessarily easy to identify. Whatever the arguments for and against change, it is important that the ongoing debate should not lead those whose lives are affected by illness or disability to feel less valued. If ever the law is changed, appropriate safeguards will need to be considered very carefully indeed.

The legal, administrative, practical and resource implications of any change to the law in this highly controversial area are considerable. We cannot in the very limited time available this evening do justice to them, although I would observe in response to the observations of the noble Earl, Lord Glasgow, that we of course take these issues seriously. I have no doubt that the debate will continue in one form or another, in Parliament and elsewhere. In the meantime, I thank all noble Lords for their contribution to this debate.