‘To be or not to be?’ Is that the Question?

This morning, an unprecedented number of peers are seeking to speak in the Second Reading of Lord Falconer’s Assisted Dying Bill. Anglican Archbishops have taken to the newspapers to contribute their views. Former Archbishop of Canterbury, George Carey, wrote in the Daily Mail that ‘the case of Mr Nicklinson had exerted the ‘deepest influence’ on him. ‘His distress made me question my motives in previous debates. Had I been putting doctrine before compassion, dogma before human dignity?’ In the Observer, Archbishop Desmond Tutu was reported as being in favour of assisted dying, saying ‘What is life? And isn’t death part of living – a natural part of life?’ and reflected on the indignities to which Nelson Mandela was subjected at the end of his life.

The current Archbishop of Canterbury, Justin Welby (writing in the Times, behind a paywall but with a free text on his own website) criticised such interventions for being unduly based on personal connections – ‘it is not compassion if in voting for my companion I expose others to danger…. compassion cannot be shown through the sort of discrimination that elevates one person’s experience, however dear he or she might be to me, above the experience of many others.’

Between them, these interventions illustrate some pertinent questions about the way in which our society should address these controversial issues about rights at the end of life. First, the proper relationship between personal stories (some would say anecdotes) and the law-making process. The difficulties of drawing general principles from the solutions that have been found for specific cases was one of the reasons why the Court of Appeal in the Nicklinson litigation thought that this was a matter for parliament rather than the courts: ‘there is a danger that any particular judicial decision, influenced perhaps by particular sympathy for an individual claimant, may have unforeseen consequences, creating an unfortunate precedent binding in other contexts.’ This is a key part of Archbishop Welby’s challenge to his colleagues – compassion for those in distress is a good reason to think carefully about the current position but does not in itself tell us much about how (as opposed to whether) we should respond to their suffering when crafting the law.

Personal stories provide a vital context and are brought to bear by both the Campaign for Dignity and Dying and Care Not Killing, but they need to be complemented by careful assessment of the evidence and rigorous reasoning. As the Nuffield Council on Bioethics puts it in its account of its own values – ‘all arguments should be capable of being heard but should be submitted to tests of coherence and rationality… based on the best evidence available, and supported by careful and comprehensive analysis.’ The key questions for the House of Lords are about evidence; does it show that that the various safeguards that can be put in place allow us to protect both those who are vulnerable to pressure at the end of life and those who are clear how they wish to die and what assistance they require? The issues are not about whether the choice to die is a morally valid position. In our pluralist democracy, it is enough that we know that people rationally and carefully make that choice. The proper question is whether we should enhance the legal recognition of such choices beyond the right to refuse treatment that would extend life into rights to support in achieving the desired manner of death.

The decision of the Supreme Court in Nicklinson has brought about a radically changed context for today’s debate. It has reminded us that the evidence needs to be scrutinised particularly closely because the human rights of those who wish to exercise control over their dying are at stake. While in the Diane Pretty case, the European Court of Human Rights accepted that the UK was justified in maintaining the ban on assistance set out in the Suicide Act 1961 even though it produced no concrete evidence of its effectiveness in protecting (unidentified) vulnerable people, or even that they were actually at risk. This will no longer be good enough.

The Supreme Court has fired an impressive warning shot at Parliament, pointing out that it needs to focus its attention on whether there is really a need in a democratic society for a general ban on assisted dying, and whether putting in place safeguards could provide sufficient protection for the rights and freedoms of others to tip the balance in favour of law reform. Unless Parliament addresses these questions and draws up a solution that stands up to scrutiny, then it is to be expected that the judges will see it as their constitutional responsibility to ‘take the law into their own hands’ (as the saying goes).

The precise terms of the Falconer Bill itself are not really the issue here. As various commentators have pointed out, if George Carey believed that the distress suffered by Tony Nicklinson was a reason for supporting the Bill currently before the House of Lords, then he could not have read it. It does not apply to situations such as his. The real question before the House is perhaps not about the detail of the Bill at all. The second reading of a Bill can be wide ranging and should address matters of principle. The significance of the archiepiscopal interventions is to clear away one of the barriers to debate, the idea that there is a single simple religious view on these matters. Like the Supreme Court decision, that is a radical shift in the political terrain.

It is not clear from this, however, that the Falconer Bill itself is the best route to take further the debate that is necessary. Amongst the weaknesses of the Bill is its very narrow focus; no doubt a tactical move, designed to identify a sub-category of cases where public opinion is thought to be strongly in favour of change. This is another example of the grip that personal stories have on our law making processes. The new legal and political context opens up the possibility for a much wider Parliamentary examination of the fundamental issues at stake. That way the question can move beyond the personal agony of Hamlet’s tortured soliloquy into a reasoned, evidence-based enquiry about how to create a legal framework to properly balance the different ways in which we value our lives.