Law and Lawyers: Assisted Dying Bills ~ Background information

Thursday 17 October 2024

Assisted Dying Bills ~ Background information

The term "Assisted Dying" generally refers to a person who is terminally ill receiving lethal drugs from a medical practitioner, which they administer themselves - (What do assisted dying, assisted suicide and euthanasia mean and what is the law? - BBC News.

In The Queen (Mrs Dianne Pretty) v DPP and Secretary of State for the Home Department Lord Bingham noted that the issue is a subject of profound and fully justified concern to very many people. The questions whether the terminally ill, or others, should be free to seek assistance in taking their own lives, and if so in what circumstances and subject to what safeguards, are of great social, ethical and religious significance and are questions on which widely differing beliefs and views are held, often strongly.

This post is confined to the legal issues relating to assisted dying and the profound questions it raises are left to one side. Any change to the existing law will have to be very clearly drafted and must clearly address the circumstances and safeguards referred to by Lord Bingham.

The law

Suicide was a criminal offence under English common law. Some of the interesting history is well-summarised in this BBC article published in 2011 - When suicide was illegal - BBC News.

In 1960, the Criminal Law Revision Committee published a report which eventually led to the Suicide Act 1961. In the second reading debate in the House of Lords on 2 March 1961, Viscount Kilmuir eloquently set out the background - Suicide Bill - Hansard - UK Parliament.

The 1961 Act decriminalised suicide - "The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated" - BUT, under section 2(1)

A person ("D") commits an offence if - (a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) D's act was intended to encourage or assist suicide or an attempt at suicide.

The maximum sentence for the section 2 offence is 14 years imprisonment. Prosecutions require the consent of the Director of Public Prosecutions. Following the House of Lords decision in the Purdy case [2009] UKHL 45, the DPP first published “Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide” setting out his policy in relation to prosecutions under Section 2. (The link is to the present-day guidance).

In R (on the application of Nicklinson and another) (AP) (Appellants) v Ministry of Justice (Respondent) - The Supreme Court [2014] UKSC 38 it was held by the Supreme Court of the UK that the present state of the law relating to assisting suicide did not infringe the European Convention on Human Rights and the DPP's prosecutorial guidance was lawful. A petition to the E Ct HR was subsequently ruled inadmissible - Decision Nicklinson and Lamb v. the United Kingdom - case concerning ban on assisted suicide declared inadmissible.pdf

Essentially, the courts have the view that it is for Parliament to alter the law.

Suicide Pact

The Homicide Act 1957 (legislation.gov.uk) section 4 provides that - "It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other ... being killed by a third person."

Forfeiture

The Forfeiture Act 1982 (legislation.gov.uk) sets out a "forfeiture rule" -

In this Act, the “forfeiture rule” means the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing.

The 1982 Act gives power to the High Court to make an order either modifying or excluding the effect of the forfeiture rule.

A recent case where the effect of the rule was excluded is Morris v Morris & Ors [2024] EWHC 2554 (Ch) (09 October 2024) (bailii.org)

Standard of proof

In R (Maughan) v Her Majesty's Senior Coroner for Oxfordshire [2020] UKSC 46, the Supreme Corut held (by a 3 to 2 majority) that the CIVIL standard of proof applies for an inquest to return a short form conclusion of suicide. The case was discussed in this earlier post - Law and Lawyers: Suicide and Unlawful Killing ~ Standard of Proof (obiterj.blogspot.com)

Parliament

Several Private Members’ Bills in both the Commons and the Lords have (unsuccessfully) sought to legalise assisted dying. Most recently in the Commons, Rob Marris MP tabled the Assisted Dying Bill (No 2) 2015, which did not progress beyond second reading after it was defeated on a free vote by 330 votes to 118. In the Lords, Baroness Meacher (Crossbench) introduced the Assisted Dying Bill [HL] 2021-22 in May 2021. The Bill did not proceed after the end of the 2021-22 session.

In February 2024, the Health and Social Care Select Committee published a report on Assisted Dying/Assisted Suicide (AD/AS). The Committee did not come down for or against AD/AS; instead, it said the purpose of its report was to provide a basis for discussion and debate in future parliaments, rather than to resolve the debate one way or another.

See House of Commons Library 25 April 2024 - SN04857.pdf (parliament.uk) and Assisted Dying/Assisted Suicide - Health and Social Care Committee (parliament.uk)

Private Members' Bills

Private Members' Bills (PMB) rarely proceed to become law unless supported by the government of the day but there are notable exceptions - e.g. Murder (Abolition of the Death Penalty) Act 1965 (Mr Sidney Silverman MP), the Abortion Act 1967 (Mr David Steel MP). Hence, from time-to-time, these Bills effect major changes.

Whether PMB are appropriate for deeply controversial matters is another issue and there is nothing in Parliamentary procedure to actually prevent them being used in this way.

Lords -

Since the General Election of 4 July 2024, a Bill has been introduced by former Lord Chancellor - Lord Falconer of Thoroton. It is the Assisted Dying for Terminally Ill Adults Bill [HL] - Parliamentary Bills - UK Parliament

Lords private members' bills ballot 2024 - UK Parliament

Commons -

The Private Members’ Bills ballot for the 2024-25 session took place on Thursday, 5 September 2024. Kim Leadbeater (Labour) was drawn in first place. The 20 MPs who were drawn in the ballot presented their chosen bills on Wednesday, 16 October 2024.

Kim Leadbeater MP introduced the Terminally Ill Adults (End of Life) Bill which seeks to allow adults who are terminally ill, subject to safeguards and protections, to request and be provided with assistance to end their own life; and for connected purposes.

The Bill appears to have the personal support of the Prime Minister (Sir Keir Starmer MP)/ It is to be the subject of a "free vote" by MPs.

The text of Leadbeater's Bill is not yet available.

Second Reading is set for Friday 29 November 2024.

Private Members' bills - UK Parliament

Private Member’s Bills in the House of Lords - House of Lords Library (parliament.uk)

What are the legislative stages for Private Members Bills in the House of Commons? (hansardsociety.org.uk)

Footnote

Purdy was the final decision handed down by the Appellate Committee of the House of Lords - Final House of Lords judgments - UK Parliament.

Links

In no particular order

What is the background to the MPs’ vote on assisted dying? | Assisted dying | The Guardian

Legalising assisted dying a ‘slippery slope’, says archbishop of Canterbury | Assisted dying | The Guardian