A good death in Scotland...

Something almost interesting has happened, or at least threatens to happen. Almost without a peep from the Scots blogosphere – and largely submerged under the shifting plates of other stories – Margo MacDonald MSP actually got her bill to legalise assisted suicide in Scotland a parliamentary hearing. Internal parliamentary rules required the doughty tribuness to cajole eighteen of her fellows into lending their signatures to the proposal. Although eighteen out of one hundred and twenty nine is a small percentage, the following MSPs scribbled in support of her Bill proceeding to actual deliberation. I’ve divided them into their respective parties, for curiosity.

Robin Harper (Green), Patrick Harvie (Green), Elaine Murray (Lab), George Foulkes (Lab), James Kelly (Lab), John Park (Lab), Charlie Gordon (Lab), Bill Wilson (SNP), Sandra White (SNP), Christine Grahame (SNP), Christopher Harvie (SNP), Jamie Hepburn (SNP), Ian McKee (SNP), Bill Kidd (SNP), Angela Constance (SNP), Joe Fitzpatrick (SNP), Jackson Carlaw (Tory), Jim Hume (Lib), Jeremy Purvis (Lib), Liam McArthur (Lib).

One curious aspect of this problem which the Scots press consistently get seriously wrong is that assisted suicide, as such, is absolutely and without question, illegal under the present Scots law. The precept and sanction from which the criminality of assisted suicide draws its conceptual life in England and Wales is the Suicide Act 1961. As a cursory search will show you, that enactment does not apply to Scotland and hence, precisely what legal risks assistance runs north of the Tweed remains much murkier. Indeed, because the ambit of the debates are generally framed around this English usage, the question “is assisted suicide legal in Scotland” is almost an unanswerable question.

We can say that the old strictures on suicide itself have withered and snapped under the erosive eye of desuetude and obsolescence. However, I must stress – Parliament has never abolished this in Scotland. Theoretically, therefore, the louse could creep back out of the seam at some point in future.

Broadly, what one can say about the Scottish position is this. There is no legislation clearly dealing with the subject. There is no clear, primary precedent directing whether and in what graduations general assistance to commit suicide will be viewed criminally. By contrast, if the assisting person acts on their own agency in bringing about the death of a willing subject - whether but administering pills, smothering and so on - this is prosecutable as murder or culpable homicide. To avoid the exigencies of a mandatory life sentence, the latter course is frequently followed by prosecutors who seek a conviction and accused persons willing to enter pleas.

Regarding assistance not amounting to active administration, leading to death, the gloom darkens still. If suicide is not, of itself, a crime, one naturally cannot be found guilty of bringing it about “art and part” in the Scots phrase – by participating to some measure in its perpetration. One situation which has proved (relatively) common in England – families facilitating the departure of a loved one to another jurisdiction, there to die – is much more of a labour to interpret into Scottish criminality, to my mind. So too, I’d argue, cases where lethal doses of medicine are gathered and knowingly given to a person, for that individual to consume under the own volition and by means of their own physical steam.

As you can see, it is a frightful mess. The absolute abnegation of what the criminal laws ought to be in a modernised, rationalised democracy. Indeed, I’d suggest the whole set up, if applied against an individual, could prompt a fierce challenge under European Human Rights law and Article 6 of the Convention. The content and contours of the law – at least in respect of general assisting conduct not amounting to murder - is totally vague. Unacceptably so.

Its in this context which we have to see Margo MacDonald’s proposed piece of legislation. Questioned by Brian Taylor at the SNP Spring Conference, Alex Salmond, the Maximum Eck, outlined his views on the subject in an uncharacteristic tangle:

“I’m not convinced…the … I mean I think when you hear the views of people who have been in circumstances with relatives with painful and incurable conditions … and nobody with any sensitivity would want you know sanctions, severe sanctions, pursued against people in these circumstances. The difficulty I have, and lots of people have with this issue, is that if you provide a legal base for euthanasia effectively, for assisted suicide, then it is very difficult to assess where your boundary line is then drawn which protects on the one hand the sanctity of life and also protects, for that matter, medical practitioners and others. I think shifts in the boundary line here are very difficult, and thus I’m unpersuaded by Margo’s bill. I’m not unsympathetic, but unpersuaded.”

To my understanding, Margo must now wait to see if the Government brings forward an Executive Bill, addressing the same subject. I would argue that they should, for the following reasons. I can see Salmond’s points, lots of people can, whether or not they would suffer many vague allegations that life has some absolute “sanctity”. Moral caution is understandable. Real debate is mandatory. Various options are open to the Parliament. Before, I’ve lambasted our Holyrood lot for their conservative progressiveness. One can see, in the Maximum Eck’s remarks, curiously, a legislator with fear of his own strength, cowed by the sheer legislative possibilities which Holyrood presents and the significant extent to which it is empowered to overhaul old norms, and generate new and crackling concepts, fresh from the Gods.

A chance for a debate – a Scots debate – on this issue is terribly welcome, and I congratulate all those Margo was able to shoehorn into signing her proposal. Holyrood cannot shirk its responsibilities. Salmond is wrong. The law does provide for severe sanctions in some circumstances, as I have outlined. However, what concerns me is that Margo’s bill may provoke a binary response, and a useful and needful and timely moment for altering our conceptual patrimony may be wasted. We need not, after all, walk the whole way Margo is advocating. What I’d like to see is at least the following.

Firstly, a clear and forthright statement that suicide is not a crime in Scotland.

Secondly, a provision clarifying that general assistance to commit suicide is not illegal in Scotland. The form of the Suicide Act 1961 should not be followed.

Thirdly, a debate on the criminality of the intentional causing of the death of another for benevolent motives.

It is merely the desire for control which causes the problem here. Law is envisaged as a set of rules which can be applied. Politicians – yammering about boundary lines – express, I think, the anxiety which would attend broad rules permitting “euthanasia”. As they come back to, again and again, what about bad faith, what about underhand and malicious this that and the other, which might trick the section and slip through a vengeful legal noose on a technicality. I can see some of the appeals of this argument. Even if one admit its significance, however, that does not, absolutely does not, justify the status quo.

If we do not find even acts of intentional killing, in certain circumstances as sufficiently blameworthy necessarily to entail a life sentence – lets be up front about it. The defence of provocation, if sustained, reduces a charge of murder to one of culpable homicide, as a matter of right. By contrast, those who engage in euthanasia must put their hopes in the benevolence of the prosecutor, and pray that he or she does not simply choose – as is their right – to proceed with a charge of murder. That contingency and uncertainty does not seem satisfactory.

Thus, I’d propose that “euthanasia” be instituted as a special defence to a charge of murder in Scotland, with symmetrical effect as the defence of provocation.

Obviously, Margo wants much more than this, and many might agree with her. However, if her advocacy fails her – and her hopes are not realised – something must be done about Scotland’s parlous and incoherent treatment of assisted suicide and euthanasia. If the Government remains, in Eck’s terms, “unpersuaded” and the rest of the parliament proves “unpersuadeable”, I’d strongly argue that the Government must act to bring light to a dark place, with honesty instead of humbug.