Assisted dying and the duty to secure life under Article 2 ECHR
With grateful thanks to the Socio-Legal Studies Association for the invitation, I have contributed a blog to their series on the Terminally Ill Adults (End of Life) Bill, in which I sketch out an issue which has been the subject of (arguably far too) little consideration to date, namely the way in which the TIA Bill interacts with the state’s duty to secure life under Article 2 ECHR, in particular mediated through the Mental Health Act 1983. I suggest that, as drafted, the Bill leaves all those concerned on the horns of a self-imposed dilemma, and suggest a way out which would at least be defensible in the event of a challenge before Strasbourg. Whilst the blog is focused on the Bill in Westminster, the issues that it raises may be thought to be equally relevant to the Bill before the Holyrood legislature (the relevant ECHR duties being there mediated through the Mental Health (Care and Treatment) (Scotland) Act 2003.
Delegated powers
Separately, the House of Lords Delegated Powers and Regulatory Reform Committee has published today (16 March) a further report on the delegated powers contained in the TIA Bill. Whilst recognising the amendments moved by Lord Falconer to reduce the extent to which Parliament is being asked to entrust significant decisions about the Bill’s operation to the Secretary of State through regulations, the Committee remains concerned about Clauses 37, 41 and 42, which are central to the regulation of broader functions supporting a framework for assisted dying. Clause 37 provides for the regulation of “approved substances” (those substances that are administered to cause death) and devices made for their self-administration. Clauses 41 and 42 provide for the regulation of “voluntary assisted dying services” (health services provided for or in connection with assisted dying) in England and Wales respectively. As the Committee notes “[h]ow these matters are to be regulated is of significant interest to Parliament.” In their first Report on the Bill, the Committee expressed their “particular concern” that “the powers can provide for anything that an Act of Parliament can without the scrutiny that an Act of Parliament would receive” and went on to discuss some of the things that such a power could be used for that might evade proper Parliamentary scrutiny. As the Committee identified:
12. Given the proposed retention of these provisions, it is necessary to elaborate further on that particular concern. There are two aspects:
• first, allowing a power to provide for anything that an Act of Parliament can do makes it unknowably broad, even where there are express limitations on its exercise. Instead of presenting Parliament with a “this is what the power may be used for” scrutiny proposition, it instead says “the power can be used for anything except this”. This is a fundamentally flawed approach to delegated powers;
• secondly, the exercise of delegated powers is subject to significantly less effective scrutiny than a Bill; little if any time is devoted to line-by-line scrutiny, statutory instruments are unamendable, and their rejection is exceptionally rare. This lesser scrutiny makes it particularly important that Parliament is able to know the limits of use of the delegated powers themselves during the passage of the Bill. Pre-legislative scrutiny such as that proposed by the Sponsor may be helpful but cannot change the fundamental nature of delegated legislation scrutiny or substitute for Bill scrutiny.
In relation to the establishment of an assisted dying service (Clauses 41 and 42), Lord Falconer explained that:
[I]t is necessary to ensure that in developing a scheme for the provision of voluntary assisted dying services the Secretary of State would be able to amend primary legislation as he/she develops the detail.
The Committee disagreed, on the grounds including that “there is no need to pre-emptively design an assisted dying service. The design of delegated powers that allow Parliament to know what it may be agreeing to while remaining sufficiently flexible for implementation is a different matter to the detailed design of the service enabled by those powers.”
The Committee notes that it is “exceptionally rare” for delegated powers to be granted for secondary legislation to do anything an Act of Parliament can do, and continue:
Our objection to provisions of this type is that they are a fundamentally flawed approach to delegated powers. The Sponsor’s approach is to seek to constrain them and to introduce further Parliamentary scrutiny. However, this cannot overcome their nature and the highly inappropriate degree of power that they transfer to from Parliament to Ministers.
[…] Accordingly, we:
• note the Sponsor’s proposals to add substance to clauses 37, 41 (but not clause 42), and
• repeat our view that clauses 37(7), 41(6) and 42(4) are highly inappropriate. We recommend that they should be removed from the Bill and replaced where necessary and justified with provision that allows Parliament to properly scrutinise the limits of the relevant delegated powers.
