Assisted dying: change is coming... at last

In February 2019, Ann Whaley was interviewed under caution by the domestic violence officer of her local police force for planning to help her husband Geoff seek an assisted death in Switzerland. They had been married for more than 50 years, and Geoff was terminally ill with motor neurone disease. Later that month, he was able to have an assisted death at Dignitas. But in a letter to MPs sent before he died, he complained that the law ‘sought to punish those attempting to help me get there’. 

Over six decades ago, parliament passed compassionate legislation to abrogate the crime of suicide. The Suicide Act 1961 was a landmark piece of legislation in a decade of huge progressive change. But what it gave with one hand, it took away with the other, introducing the standalone offence of assisting a suicide, a blanket ban on any and all assistance given to any person to end their own life, regardless of the circumstances. There are good policy reasons for this crime to remain on the statute books, but there is a wide and growing realisation that an exception must be made for dying, competent people who want choice over how and when they die.

For 15 years policymakers and public servants have been trying to make our law on assisted dying – an outdated, uncompassionate law that does not command public support – work more fairly. In 2009, the then director of public prosecutions, Sir Keir Starmer, published guidelines for prosecutors that mean those who assist in another’s death for compassionate reasons are unlikely to be prosecuted. In 2023, Sir Max Hill published updated guidelines for homicides, with specific reference to suicide pacts and ‘mercy killings’.

These efforts to clarify when prosecutions are in the public interest have been sparked by real, tragic stories. Sir Keir has spoken about the awful cases that crossed his desk when he was the DPP and had to decide whether to proceed with prosecuting a loving family member for accompanying a dying relative to Switzerland. Sir Max’s guidelines follow the dreadful circumstances of Mavis Eccleston being prosecuted – and thankfully acquitted – for the murder of her husband, who ended his own life while living with terminal cancer.

While these guidelines are far better than the uncertainty that preceded them, they are by no means a decriminalisation. Those who are not prosecuted may still face months of investigation by the police, treated as suspects rather than grieving relatives; those who have experienced it talk with dismay of final letters from the departed being taken as evidence, their family homes treated as possible crime scenes.

Other neighbouring jurisdictions are addressing this invidious state of affairs. The House of Keys in the Isle of Man voted in favour of assisted dying in October and will be scrutinising legislation in the coming months. The Government of Jersey will bring forward proposals later this month, to be debated in May, that will set out its own approach to legalising assisted dying. In the next few weeks, a new bill will be proposed in Holyrood to legalise assisted dying in Scotland.

The Health and Social Care Committee in the House of Commons this month considered it ‘increasingly likely’ that the law would change in one of these jurisdictions in the near future. The committee urged the government to be ‘actively involved in discussions on how to approach the divergence in legislation’. The inequity of dying people in Carlisle and Gretna Green having different choices at the end of life would prove that point.

Momentum for change is building. And yet until recently, there has been some reluctance to pursue this debate in Westminster. MPs voted against proposals to legalise assisted dying in 2015 by a large margin, but debates since then have shown that opinion is shifting rapidly. In the House of Lords, we have attempted to pass legislation several times since my first bill in 2014 – and on each occasion we have been denied the time needed to conclude our deliberations. The government has hidden behind its professed neutrality on assisted dying, thereby preventing a clear process on how to progress a change in the law.

This hesitancy might be understandable if it were clear that the public supported the current law. Every opinion poll on the subject shows overwhelming support for assisted dying among the British people, and has done for many years.

The law is also being applied inconsistently. There have been no prosecutions of those who have accompanied their loved ones to Dignitas, despite hundreds of criminal investigations. But since 2009 the Crown Prosecution Service has investigated less than half the cases of Britons who have died at Dignitas, let alone the countless others who have taken their own lives, behind closed doors, in this country. Ann Whaley’s case is in sharp contrast to the many others who return fearfully from Switzerland and are never investigated. If we were truly satisfied that our current law was the right one, it would surely be applied uniformly and enforced rigorously.

Spurred on by the passionate advocacy of Dames Diana Rigg and Esther Rantzen, MPs are realising that this debate must be a key part of the next parliament’s agenda. Both Sir Keir Starmer and Rishi Sunak have agreed that, if assisted dying proposals are brought forward and supported in the next parliament, they will give time for legislation to pass through all its stages. The next election will be fought on many issues, but I am certain that assisted dying will be one of the questions that candidates must answer at their hustings.

We have relied too long on the good works of public servants to make a bad law work. It’s time for a new law in the next parliament.

Rt Hon. Lord (Charlie) Falconer KC is a Labour peer who served as lord chancellor and secretary of state for constitutional affairs from 2003-07. He discusses the issue of assisted dying with Baroness (Helena) Kennedy) KC and the former High Court Judge Sir Nicholas Mostyn in the current episode of their weekly legal podcast Law and Disorder