Assisted Dying

Lord Wallace of Tankerness Excerpts

Monday 13th February 2012 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I congratulate the noble Baroness, Lady Jay of Paddington, on introducing this debate, and those who have contributed to it. Noble Lords have actually left me with 20 minutes but I shall not take up all that time. The succinctness with which some very passionate points of view have been expressed is remarkable. I have heard the comments made by a number of those who have contributed to the debate about the opportunity for a longer debate on this. I would not dream of speaking on behalf of the usual channels’ business managers, but I am sure that that will have been noted on this occasion, as indeed on an occasion when the noble Lord, Lord Bach, dealt with this issue in a Grand Committee debate when he was in Government.

[Lord Bach]

It was not this issue.

[Lord Wallace of Tankerness]

It was not quite this issue but it was related. There was also a debate in Grand Committee in February 2010 on assisted suicide to which there were many contributors, and the importance of this issue and the salient points that have been made will have been noted. It is evident that this matter generates much passion on both sides of the argument.

At the outset, I would like to make the distinction, as a number of contributors have done, between the form of the law on assisted suicide on the one hand, which is, quite properly, a matter for Parliament—I endorse what the noble Lord, Lord Bach, said: just like the Government of which he was a member, this Government also take the view that a change to the law is an issue of individual conscience. Therefore, it is a matter for Parliament to decide whether there should be a change to the law rather than one of government policy—and the prosecution policy of the Director of Public Prosecutions on the other. The DPP discharges his functions and duties within a framework determined by Parliament.

Perhaps it is important to put the position into context to be able to respond to some of the points. To understand how the policy works in practice, the Crown Prosecution Service was established by legislation as an independent public prosecution service for England and Wales. The Director of Public Prosecutions is the head of the CPS, and—to reflect the point made by my noble friend Lady Berridge—the DPP is superintended by my right honourable friend the Attorney-General, who is in turn accountable to Parliament for the work of the CPS. There is a distinction, however, between that accountability, which is quite proper, and having guidelines and policies approved by Parliament that in some respects could fetter the independence of the decision of the prosecutor.

The primary role of the CPS is to prosecute criminal cases investigated by the police in England and Wales and to provide advice to the police in some of the most serious or complex cases. However, I emphasise again that the CPS operates independently of the police.

The Director of Public Prosecutions has a statutory duty to issue a code for Crown prosecutors. This is one of the most important documents for the CPS, as the code provides guidance to prosecutors on the general principles to be applied when making decisions about prosecutions. In particular, the code sets out the full code test. That is the test applied by prosecutors to the facts and circumstances of every individual case referred to them by the police. It has two stages to it. First, there is the evidential stage: is there sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge? Secondly, there is the public interest stage: is it in the public interest to proceed with a prosecution?

It is nearly always the case that the public interest is considered only when the evidential stage of the full code test has been satisfied. It is only when there is sufficient evidence to provide a realistic prospect of success that a case proceeds to the public interest stage of the full code test. It is essential that the public interest is considered by prosecutors when making a decision on an individual case. It has never been the rule in this country that suspected criminal offences must automatically be the subject of prosecution—the point that the noble and learned Lord, Lord Hope, made in his judgment in the Purdy case, to which reference has been made—as the public interest must always be considered.

The most recent edition of the code was published in February 2010 following public consultation. It is a public document and is written in a way that enables it to be followed by the general reader so that the public are able to understand how prosecution decisions are made. However, with relevance to this particular debate, in addition to the code the DPP also publishes public policies and guidance that provide further advice to prosecutors when considering particular types of cases. The various policies and pieces of guidance are expected to be followed by prosecutors and must be read in conjunction with the code.

The policies and guidance are also available on the CPS website, again to provide transparency. The noble Viscount, Lord Craigavon, asked about transparency. As well as setting out the policy guidance, the website also sets out a few individual cases, giving the facts of the case and the route that the DPP took in coming to his decision not to prosecute. The particular case that I am thinking of is set out there. Hopefully, that will at least to some extent aid the transparency that the noble Viscount and others have asked for. The Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide is one of these documents.

It is important, as has been recognised in many of the contributions to the debate, that the policies and guidance issued by the DPP are not intended to be a substitute for the law or to replace it in some way. A number of those who have contributed to the debate—even those who have called for a change in the law—have reflected on the fact that the policies are imbued with a sense of compassion. More than one contributor talked about the law providing deterrence and the policy guidelines from the DPP enabling the law to be discharged with compassion. The guidelines are there to assist prosecutors in making decisions on individual cases by setting out in one place the relevant legislation, case law, court sentencing practice, internal operating procedures and any specific evidential and public interest factors to be taken into account. That is the purpose of the policies and guidance. They are subservient to and operate within the framework of the law as determined by Parliament.

The assisted suicide policy was published in its present form following an interim policy and consultation in February 2010. As the noble Baroness said in introducing the debate, we are coming up to the second anniversary of that policy being in place. As has been indicated, it followed the judgment in the House of Lords case of Purdy v Director of Public Prosecutions. Debbie Purdy sought information about the factors that the DPP would take into account in deciding whether to grant his consent to a prosecution under Section 2 of the Suicide Act 1961. Ms Purdy argued that the code issued by the DPP was insufficiently precise to provide her with the information that she sought. In July 2009, the Appellate Committee of the House of Lords found in favour of Ms Purdy. In so finding, the Law Lords required,

“the director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding … whether or not to consent to a prosecution under section 2(1) of the 1961 Act.”.

As I have indicated, an interim assisted suicide policy was published in September 2009. It was the subject of a three-month public consultation, in which more than 4,700 responses were received from interested individuals and organisations. The interim assisted suicide policy was revised by the DPP following careful consideration of the responses to the public consultation. The final version was published in February 2010. At the time of its publication, the revised policy met with broad approval. It is fair to say that it attracted considerable approval from many sides of the Chamber this evening. It is interesting to note that, while the commission that has been referred to, which was chaired by the noble and learned Lord, Lord Falconer, recommended changes to the law on assisted suicide in cases where a person is terminally ill, in cases where there is a non-terminal illness, it indicated the following in its executive summary:

“Therefore, we suggest that the DPP’s prosecution policy should continue to be applied to those cases that might fall outside the scope of the legislation that we are proposing for consideration (for example assisted suicides involving people with chronic illnesses or serious physical impairments who are not terminally ill)”.

Even the commission itself recognised the merit and substance of the policy. It is worth repeating that it does not seek to change the law. Indeed, it cannot change the law, as that is clearly a change that only Parliament can make.

I shall take up some of the specific points that have been made. Prospective immunity was raised. Prospective immunity has never been granted. The DPP told the commission that,

“the position of the prosecutors has been historically that we won’t indicate in advance whether conduct is criminal or not. Various rulings of the courts have indicated that that would be a wrong position for the prosecutor to adopt and therefore we haven’t done that”.

Indeed, it goes beyond the DPP’s power because the police are responsible for deciding when an investigation should be instigated. Obviously, if there was no alleged crime, that would not be possible.

With regard to the medical profession, the guidelines try to strike a balance but acknowledge that as the law stands the law does not give immunity from prosecution in this regard. I do not wish to quote at great length from the evidence of the Director of Public Prosecutions to the commission. However, he set out the balance that he has sought to apply in the policy. The policy guidelines do not refer to a medical doctor but to a person,

“acting in his or her capacity as a medical doctor”.

It would be wrong to confer blanket immunity, if that is how it would be interpreted. That would not only fetter the discretion of the Director of Public Prosecutions who needs to look at the individual circumstances of every case but would be tantamount to a change in the law. As has been said, that is a change in the law that is for Parliament to determine.

With regard to families and doctors discussing end-of-life options, the noble Baroness, Lady Finlay, indicated that she did not think such discussions were taking place. Again, however, that is a matter which would more appropriately require a change in the law rather than indicating, ahead of a potential crime being committed, that there was immunity for it.

It is very difficult to do justice to such a wide issue. In that respect, I have a lot of sympathy with those who think that we should have a much wider debate. I have tried to pick up some of the salient points that have been made. My noble friend Lord Glasgow was not alone in indicating that perhaps the time had come for a change in the law. As I have indicated, that is not a matter of government policy but is a matter for individual conscience and for Parliament. However, I rather suspect that we will be back here debating this issue in days to come.