'End of Life' bill: Need for scrutiny should not mask its beneficial principle

I have for many years been interested in the topic of assisted dying, and considered it as a judge in the 2009 House of Lords Purdy case, and in the 2014 Supreme Court Nicklinson case, as well as when it was debated in the chamber of the House of Lords in 2021.

While, as with almost every topic, there are contrary arguments, I strongly support the principle behind the Terminally Ill Adults (End of Life) Bill, namely, to give terminally ill, mentally competent adults the choice which is denied by the current law, with its blanket ban on all assistance to end life, regardless of the circumstances, and to do so in a way which would provide the oversight, scrutiny and protection from coercion which the status quo, manifestly fails to deliver.

Two fundamental aims of the law should be to respect peoples’ right of personal autonomy, and to protect the vulnerable. The present law fails on both fronts. Self-evidently, it prevents those who genuinely and understandably wish to end their lives and who need help to do so, from getting such help. It also fails to protect the vulnerable, because the blanket ban can drive terminally ill people to end their lives in secret. In the rare cases where there is an investigation, it will be after the event, when it is too late to protect those who may be acting under undue influence or coercion.

In contrast, the bill respects the personal autonomy of the terminally ill, and contains detailed provisions aimed at ensuring that those considering an assisted death are given appropriate support to ensure they are making informed, settled, voluntary decisions. Anyone requesting an assisted death would be fully assessed on this basis. The process is designed to detect coercion: indeed, the bill creates new punishable offences of coercing or committing a fraud around assisted dying.

The current situation also fails another aim of the law, namely to be consistent and fair. For instance, the present law can be avoided by those fit and rich enough to be helped to travel abroad to be assisted to die, while a significant number of those who cannot take that course are driven to break the law (and involve others) in secret, without the law giving them any protection.

Concerns have been expressed that a law which limits eligibility to terminally ill, mentally competent adults, could be expanded by the courts. It seems to me that such an outcome is very unlikely. The European Court of Human Rights (ECHR) has repeatedly ruled that legislation on assisted dying is a matter for individual states. As for domestic courts, seven of the nine judges (including me) in the Nicklinson case held that assisted dying was a matter for parliament not the courts. And in the 2018 Conway case, the Court of Appeal said that 'There can be no doubt that Parliament is a far better body for determining the difficult policy issue in relation to assisted suicide' and the Supreme Court refused to entertain an appeal.

When giving reasons for this refusal, the Supreme Court said: 'Under the United Kingdom’s constitutional arrangements, only Parliament could change this law', adding 'But the Supreme Court could, if it thought right, make a declaration that the law was incompatible with the Convention rights, leaving it to Parliament to decide what, if anything, to do about it'. Thus, in the unlikely event that they were prepared to get involved, the most that domestic courts could do would be to issue a declaration of incompatibility between the statute and the Human Rights Act. Unlike the Canadian Supreme Court, the UK Supreme Court cannot tell parliament to enact a law.

Some people have argued that the bill contains too narrow a definition of pressure, and that it unacceptably leaves important issues to be decided by secondary legislation. I also believe that it proposes a wider role for judges in the assessment process than is appropriate: a judge should only be involved when there is a dispute. In my view, those are the sort of issues which can and should be the subject of scrutiny and debate in parliament in due course in the normal way. The need for such a discussion is not, in my view, a good reason for voting down the bill.

It has been suggested that the bill may breach the ECHR because it provides a 'state service' for ending life. I would be very surprised if any judge so held, given what has been said by the Strasbourg court in several cases about assisted suicide, and given that assistance to end life is lawful in defined circumstances in Switzerland, the Netherlands, Belgium and Spain, all of which have signed up to the ECHR. But, if there is anything on this point, it can be considered and provided for during the passage of the bill through parliament.

I hope the Terminally Ill Adults (End of Life) Bill passes its second reading and reaches committee stage, which would enable much more detailed scrutiny of the proposals. However, the need for such scrutiny should not mask the important and beneficial principle embodied in this bill. I very much hope that on Friday, MPs will grasp the opportunity which it presents.

Lord Neuberger is former president of the Supreme Court