The
Constitutional Limits of Assisted Death
Gordon
Dawes
Guernsey’s
States of Deliberation are shortly to consider a proposal in principle to
permit assisted dying in certain circumstances. This article explores the
possible constitutional consequences in the event that HM Government were to refuse
to put any resulting legislation forward for Royal Sanction.
1 The Chief Minister of Guernsey, Gavin St
Pier, and six other requérants
have brought forward a proposition calling for the States of Deliberation (the
Island of Guernsey's assembly, to which Alderney also sends two
representatives) to “agree in principle to the development of a suitable
legal regime to permit assisted dying in Guernsey”. The proposition is
conditional upon bringing into force legislation governing capacity and taking
into account also the results of an 18 month study to be conducted by a working
party looking at seven stated areas of concern. These range from legal and
professional obstacles, whether terminal illness should be a requirement,
whether physical assistance should be permitted, whether there should be a
residential requirement (thus avoiding accusations of opening the way to “assisted
dying tourism”), how to protect the vulnerable, and the role of doctors
and conscientious objection. Alderney has already debated assisted dying,
without reaching a conclusion, and the two legislatures are to liaise in order
to avoid duplication of effort, assuming that the principle of assisted dying
is approved there also.
2 The requête is due to be debated in
May 2018 and has attracted national media coverage, much of it sensationalist
and misrepresentative of the true nature of the proposition. The Roman Catholic
Bishop of the Diocese of Portsmouth has expressed himself forcefully against
the proposals, likewise some members of the medical professions. A group of 53
Guernsey clerics and church wardens have signed a letter jointly opposing the requête.[1]
It is, however, not the first time that the States of Deliberation have
considered assisted dying. A lengthy inquiry beginning in 2002 culminated in a
debate in 2004 when it was resolved “not to change the present legal
position”. The 2018 requête
points out that several more jurisdictions have since legislated to permit
assisted dying (Canada, the US states of California and Washington and the
Australian state of Victoria—joining jurisdictions such as the
Netherlands, Belgium and Switzerland). They rely also on evolution in matters
of social policy and personal conscience more generally.
3 It is
not for an article in a legal journal to pronounce on the moral rights and
wrongs of assisted dying, but legal issues do arise if, one day, Guernsey
(whether the Island of Guernsey alone, or Guernsey and Alderney or all three
jurisdictions, including Sark) bring forward legislation to permit assisted
dying. Such legislation would certainly be beyond the scope of local ordinance.
While all three jurisdictions have an inherent power to make legislation
for the regulation of local affairs without reference to London, the limits of
such powers are poorly defined. Primary legislation would be required, which means sending the draft
legislation to the Ministry of Justice, and then on to the Privy Council
Committee for the Affairs of Jersey and Guernsey with a view to obtaining Royal
Sanction. In practice, if legislation makes it past Ministry of Justice
scrutiny it will go on to receive Royal Sanction,[2]
and vice versa.
4 There
must be a risk that the United Kingdom Government of the day (acting in right
of the Crown) will refuse to permit a Crown Dependency to make assisted dying
legislation on grounds of pure policy, which begs the question whether it is
legally permissible for it to do so.
5 The
United Kingdom Government claims such a right. In the Government’s
response to the Justice Committee’s report, Crown Dependencies[3] the UK
Government said this[4]—
“The Government notes the Committee’s
concerns that the United Kingdom is influencing Island legislation at the
policy level which ‘may be motivated by wider political concerns, even
though it is not legitimate on constitutional grounds’ (paragraph 60). In
completing the scrutiny process, the Ministry of Justice does not generally
check for congruence with UK policy unless divergence would demonstrate risk of
breaches of the ECHR or breaches of EU or international law, and we would not
accept that we carry out scrutiny beyond what is constitutionally legitimate. Although we do not generally seek to do so,
in addition to strict questions of lawfulness, in limited occasions we may
consider it appropriate to intervene in policy matters where there may be the
potential for a direct and adverse impact on UK interests (for example in
relation to changes to drug or immigration law in the Islands). Equally, if an
Island Law sought to do something fundamentally
contrary to current UK principle, or which may be fundamentally damaging to UK interests, we would not consider it
constitutionally illegitimate to refuse to recommend the Law for Royal Assent.
However, those are rare (and in large part theoretical) circumstances and the
precise scope of such powers is untested.” (Emphasis added.)
6 This
power to refuse Royal Assent for reasons other than placing the UK in breach of
its international law obligations has been put in various ways over the years. In
the UK Government’s March 2014 response to the Justice Committee’s
report, “Crown Dependencies: Developments Since 2010” the following
was said—
“Principal legislation made by the
Islands’ legislatures requires Royal Assent or sanction. The Ministry of Justice examines such
legislation to ensure that there is no conflict with international
obligations (including ECHR compliance) or any
fundamental constitutional principles. This enables the Lord Chancellor to
advise the Privy Council whether Her Majesty in Council can be advised to make
an Assenting Order, and thereby grant Royal Assent.” (Emphasis added.)
This begs the
question of what is meant by “fundamental constitutional principle”
and whether this is, in reality, a euphemism for something rather wider in
scope than true constitutional nicety.
7 In any
event it follows that democratically made legislation (in the sense of policy,
drafting and endorsement by a democratically elected legislature) in Guernsey might, prima facie, fail to become law because of the policy of United Kingdom
ministers having no democratic mandate of any kind in the jurisdictions in
which that legislation is to apply. It might fail for being “contrary to
current UK principle”.
8 One
could expect, and even hope for, a robust response from Guernsey. The UK
Government claims the right to refuse to put forward Channel Island legislation
which would put the United Kingdom in breach of international law. (Even this claimed
right is disputed in the Islands, certainly where any international law
obligation has been contracted by the United Kingdom and extended to the
Islands without their consent.)
9 Beyond
this there is, perhaps, a margin of appreciation. There is, arguably, an
overlap with the ultimate responsibility of the United Kingdom for the good
governance of the Channel Islands—also touched upon in the Justice
Committee’s report, and the Government’s response. United Kingdom
ministers would probably assert that they have the right to refuse to put
forward legislation falling outside a generous margin of appreciation of
legislation which a mature and responsible “Western” democracy
could choose to make. Where, however, the legislation being proposed goes no
further than, say, measures already passed by responsible and respected members
of the European Union then it doubtless would be argued that London cannot
lawfully obstruct that legislation. Such would be the case with responsibly
framed assisted dying legislation.
10 Interestingly,
this would be consistent with Guernsey’s draft Brexit legislation which
would preserve the Bailiwick’s right post-Brexit to implement any given
provision of EU law by way of simple ordinance and without reference to London.[5] It
is implicit that a measure already within EU law is overwhelmingly likely to be
within the ambit of legislation which Guernsey could properly bring forward
itself and which would receive Royal Assent thus making it unnecessary to take
such proposals to London for approval.
11 How
though would Guernsey proceed if the Ministry of Justice declined to put
assisted dying legislation forward for Royal Sanction? The most likely response
would be to bring judicial review proceedings challenging the Ministry or Privy
Council Committee decisions not to put forward the legislation for Royal
Sanction. While the States of Jersey and Guernsey as interveners in R ex p Barclay v Secy of State for Justice[6] forcefully opposed the jurisdiction of
UK courts to review any positive decision to grant Royal Sanction to Channel
Island legislation, they reserved their position in relation to jurisdiction judicially
to review the refusal of Royal Assent.[7]
The Supreme Court went further though and held that the courts of the United Kingdom
did have jurisdiction judicially to
review an Order in Council made on the advice of the Government of the United
Kingdom acting in whole or in part in the interests of the United Kingdom,
albeit there were circumstances when that jurisdiction ought not to be
exercised, the present case being one such example because the Islands had
their own human rights legislation where such a challenge could and should have
been brought.
12 The
question of whether London could block Channel Island legislation “in the
public interest” was touched upon. In her judgment, Lady Hale noted as
follows—
“17. . . . the
appellants[[8]]
take the view that Assent may be withheld if ‘it would clearly not be in
the public interest for it to become law’ (Treasury Solicitors’
letter to the claimants, 16 November 2007). This too is not accepted by the
interveners.[[9]] The
Kilbrandon Report did state that ‘the Crown has ultimate responsibility
for the good government of the Islands’ (Cmnd 5460, para 1361).
Intervention by the United Kingdom Government ‘would certainly be
justifiable to preserve law and order in the event of grave internal disruption’
but ‘the UK Government and Parliament ought to be very slow to seek to
impose their will on the Islands merely on the grounds that they know better
than the Islands what is good for them’ (para 1502). The Justice
Committee reported a high degree of consensus that ‘good government’
would only be called into question in the most serious of circumstances, such
as a fundamental breakdown in public order or endemic corruption in an Island
government, legislature or judiciary (2010, HC 56, para 37). The Government
agreed (Cm 7965, p 9). Given this very narrow scope for direct intervention,
the interveners argue that the ‘public interest’ is not a ground
upon which Royal Assent can be refused.
18. These questions do not arise
on this appeal, nor do they necessarily cover the full ground . . .
It is not necessary for this court to express a view upon these contentious
issues. We flag them up because they would arise in the (no doubt highly
unlikely) event of a recommendation that Royal Assent be withheld
. . .”
13 It is
therefore sufficiently clear from the judgment that the courts of the United
Kingdom[10]
would have jurisdiction to rule upon the legality of a refusal by the United
Kingdom Government to allow legislation to go forwards for Royal Sanction. There
is also the limited precedent of the threat of litigation made by Jersey when
the UK Government of the day refused, for internal policy reasons, to put
forward a 1998 Finance Bill for Royal Sanction. The UK Government eventually
backed down. Indeed,
for as long as final decision-making over Channel Islands legislation remains
in London it is as inevitable that judicial review in London should be asserted
by the Islands as the principal remedy against unconstitutional acts by the
Government of the day.
14 Differences
of interest have been recognised in other contexts as being both legitimate and
requiring the United Kingdom to represent and defend those conflicting
interests, notably in international relations.[12]
Differences of policy are no less legitimate and no less commanding of respect,
within the generous scope of what today constitutes responsible governance.
15 As the
requérants rightly say—
“… there is now a greater
expectation that as a mature, independent jurisdiction, Guernsey is capable of
fundamentally different policy and legal approaches to these highly sensitive
issues, compared to the UK.”
Assuming, which
seems likely, that the UK Government either did back down or was compelled to
back down, there are other potential obstacles.
16 It is
likely that individuals and groups would petition the Committee for the Affairs
of Jersey and Guernsey not to permit Royal Sanction to be given.[13] But
again, the overwhelming likelihood is that, if the draft legislation were to
clear the Minister of Justice hurdle, it will also clear the Committee hurdle
and proceed to Royal Assent. In the present circumstances, the key point will
already have been considered and either rejected by the Minister of Justice or
adjudicated upon by an English Court—i.e.
whether such legislation can be blocked by the Minister of Justice/the
Committee on policy/principle/public interest grounds.
17 The
biggest problem that assisted dying legislation might face is a more subtle
one. Assisted dying requires, in practice, the assistance of medical
practitioners—at least any assisted dying of the kind likely to be
contemplated by the Guernsey legislature. Guernsey depends upon UK medical
registration (in effect it operates a secondary register) and the supervision
by UK professional bodies of medical professionals working in Guernsey. To the
extent that assisted dying is not permitted by United Kingdom professional
bodies then, in practice, no Guernsey medical professional will engage with
assisted dying. As matters stand, the British Medical Association opposes all
forms of assisted dying and supports the current legal framework, with an
emphasis upon high quality palliative care permitting patients to die with
dignity.[14] The
Royal Pharmaceutical Society has published a carefully worded policy document
which appears to support working with the Government of the day to introduce
and implement appropriate assisted dying legislation, should that ever come
about, whilst insisting upon both respect for individual conscientious
objection and legal protection.[15] The
General Medical Council steers a careful course in the advice it gives but
clearly states that doctors should, inter
alia, “follow the laws . . . relevant to their work”.[16]
18 Those
laws include s 9 of the Offences Against the Person Act 1861, which
provides—
“Where any murder or manslaughter shall be
committed on land out of the United Kingdom, whether within the Queen’s
dominions or without, and whether the person killed were a subject of Her
Majesty or not, every offence committed
by any subject of Her Majesty in respect of any such case, whether the same
shall amount to the offence of murder or of manslaughter . . . may be dealt with, inquired of, tried,
determined, and punished . . . in England or Ireland . . .”[17] (Emphasis added.)
This provision, with
its explicitly extra-territorial effect, would, prima facie, and as a
matter of United Kingdom law only, apply to assisted dying carried out by UK
nationals in Guernsey and act as a very powerful deterrent—unless and
until amended to exclude assisted dying in Guernsey.[18]
While it is one thing judicially to review the refusal to put forward Channel
Islands legislation for Royal Sanction, it is quite another to purport to
legislate for a Crown Dependency on a domestic matter considered by the
autonomous legislature of that territory.
19 It
could indeed be argued forcefully that it would be an abuse of process to seek
to prosecute in England conduct which was lawful in Guernsey. There would also
be the inconsistency of prosecuting in the name of the Crown conduct which had
been sanctioned by Order in Council.
20 Whether
in the name of policy, United Kingdom principle, United Kingdom interest,
fundamental constitutional principle or alleged public interest, it is
suggested that the United Kingdom Government may not lawfully block the
progress of Channel Island legislation, unless, arguably, such legislation will
put the United Kingdom in clear breach of its international obligations or is
outside the very generous margin of legislation which a responsible, democratic
legislature could properly make. From this principle, it follows that neither
should the United Kingdom permit its own extra-territorial legislation to
thwart Channel Island legislation which is otherwise entitled to Royal
Sanction. In a helpful recent development, on 1 May 2018, the Guernsey Press published a letter from
the former Lord Chancellor, Lord Falconer, dated 25 April 2018 stating that (in
his opinion) the Privy Council would not intervene on this issue. He too makes
the point that it would be an abuse of process to seek to prosecute in the
United Kingdom any matter which was not a criminal offence in Guernsey, but
that, in any event, it would be relatively simple to pass any necessary
Westminster legislation.
21 As for
United Kingdom medical professional bodies, one would expect them to
accommodate legal developments in the Islands, subject only to legal safeguards
for patients themselves being acceptable (i.e.
that the scheme of the legislation was itself appropriate), legal protection
for their members being in place and respect for individual conscience.
22 A
forward-thinking United Kingdom Government and UK medical institutions might
quietly welcome such legislative developments on Guernsey’s part as
giving a responsible proving ground for possible future equivalent progressive
legislation in the UK. Guernsey, as a British Island, and as a microcosm of the
British nation, with shared values, shared culture and not dissimilar
institutions, could perform a valuable role in testing difficult legislation in
what is a very sensitive area. The issue is very unlikely to go away and the
number of responsible jurisdictions permitting assisted dying bound to
increase. It is difficult to think of another current issue[19]
where one side of the argument perceives itself as demanding an obvious and
basic right while the other perceives what is proposed as being, at best
morally wrong and at worst, positively evil. From a purely legal perspective
the issue would, however, test the limits of autonomy.
Gordon Dawes is a partner and advocate in the
firm of Mourant Ozannes.