4 August 2009

Fact: assisting suicide isn't a crime known to the law of Scotland.

It was with a sense of dread that I anticipated the morning’s plume of newspapers a few days ago. You couldn’t cover a water biscuit with my total confidence that journalists would overcome the immoveable stumbling block of their bovinity, even vaguely. All of my hopes were, predictably, dashed – and we were graced with yet more, misleading analysis of the House of Lords decision in the Debbie Purdy case. The traditional stupidities were in evidence and the little confusions prevalent. References to “the law” about assisted suicide obviously posit that the “UK law” is a unitary thing. As I never tire (but perhaps am tiresome) pointing out that the Suicide Act 1961 does not extend to Scotland. Read section 3(3) of that enactment, in case you aren’t convinced:

3(3) This Act shall extend to England and Wales only, except as regards the amendments made by Part II of the First Schedule and except that the Interments (felo de se) Act 1882, shall be repealed also for the Channel Islands.

References to “this country” must mean England and Wales. To be fair, mostly the London-based broadsheets limit their simplifications to this sort of thing. Their comments reflect the proprietorial sense that they’re talking about England – and that Scotland is already occupying alternative conceptual space. We’ve stopped being us. Equally, however, the macro-United Kingdom is generally identified legislatively with Westminster. Its this sort of ownership which leads the appellate committee of the House of Lords being referred to in this instance as “the highest court in the land”. In criminal matters, this is flatly false, there being no connecting appeal structure to the House from Scotland’s Court of Criminal Appeal. So which land are we talking about? I don’t need to give you a hint. It’s the same one encompassed by the Telegraph headline “Assisted Suicide Law Will Apply to Deaths in Britain and Abroad”. Such are the blandishments of a kingdom united, do you suppose?

So much for the English broadsheets. What about our own “quality” press? They’re in a difficult position. They face the implications of the legal regimes being different in Scotland – their bombastic insistence on their excellence surely making mandatory intelligent and informed comment, surely? The Scotsman main article was very muddled – and I have no idea what a less informed reader would come away imagining. While I imagine most Scots believe (if they have views on the subject) that assisting suicide is straightforwardly illegal under the 1961 Act – due precisely to this press sloppiness – what astounds me is how limp the press are when the raw facts of Scotland’s legal position are laid naked in the snow. Take the “Plane to Switzerland” set of facts. In England and Wales, this can be analysed as “assisting suicide” under the 1961 Act and individuals so assisting prosecuted accordingly. Gallop hastily north of the Tweed. No Suicide Act. So what is the position? As I’ve pointed out before, individual acts causing a desired death – giving another individual pills, for example – can be interpreted as a culpable homicide in Scotland. It would seem that an Englander who voyages North in order to put someone they know on a plane also falls under the jurisdiction of the Suicide Act 1961. But what about the Scotland-based person who buys someone plane tickets? Or helps them on a flight? Jammy Purvis in the Scotsman claimed that: 

“It is technically illegal to assist someone who wishes to end their life. It is considered culpable homicide and anyone who tried to help someone go to a clinic in Switzerland or anywhere else where is it legal to make end-of-life choices could be convicted of the very serious criminal offence.”

I’d like him to cite some specific examples of this, since as far as I’m aware there have never been any prosecutions for culpable homicide on this sort of fact-pattern. While some assisted suicides may amount to culpable homicides – that does not entail any correlative claims that all acts which would be illegal as assisting suicide under the 1961 Act will amount to culpable homicides in Scotland. Why should there be that identity? Isn’t it a bit strange, after all, that legislation was required to criminalise this in England, but in Scotland, we somehow, miraculously covered this with a misty idea of culpable homicide? For my money, I can see how facilitating someone’s plane travel may amount to assisting them to commit suicide. I experience more of a struggle to see, in isolation, how such conduct amounts to a culpable homicide. And here is the rub, the nub and the horror. It doesn’t. This is makey-uppey law, pseudo-legalism that dreams and trumpets that Scotland is somehow bound by an enactment which expressly only covers England and Wales. Its fatuous – and worse, it is tyrannical.

Any law making bare assistance of suicide in Scotland, based on a culpable homicide conceptualisation, would be retrospective law making, plain and simple. It would be absurd – miraculously discovering that something the media’s ignorance long assumed was illegal – “actually was”. There is no derived democracy in laws. Ponder the thought. England has enacted for tuition fees, but these don’t apply to Scotland. It’d be like reading tuition fees in, as if they had been sanctioned in Scotland – despite explicit statutory language otherwise. In short, it’d be utterly absurd.

We should be outraged by this – it’s the tyranny of stupidity – which deliberately connives at misrepresenting to the public the nature of our law in Scotland. Regular readers may recall that I’ve waxed angry on this subject before, both about the problems likely to imperil Margo’s Assisted Dying Bill and on the more general point that – unlike Englandthere is no clear Scots law on this issue. It is this fact which makes Jeremy Purvis MSP’s comments in the Scotsman rather quaint. He said that:

“We have a real danger in Scotland of the situation being far worse than in England and Wales. If the public prosecutor in England and Wales does clarify the situation, we would be in a situation where Scotland would be more confused. That is why I am writing tonight to the Lord Advocate for urgent clarification.”

I’m sorry to break this to you, my lad, but we’re already in a worse position, at least in respect of the clarity of the law. Indeed, the vain efforts folk seem to be making to find what isn’t there – namely a clear legal authority in Scotland on what degree of assistance may a culpable homicide make – underlines the basic fact that there is no law. Period. If I randomly concocted an indictment and prosecuted someone, this would be unjust. No punishment without law would be regarded by most as an essential principle of elementary democracy. Under the European Convention on Human Rights, we have to adhere to it. Pretending that Scotland has clear laws on assisting suicide when it doesn't is a usurpation, something to flagellate and rouse the political conscience. So where is the media critique? Where the even glancing and occasional professionalism that requires proper research? By consequence, where the constructive pressure on the Scots Parliament to get its Act together (appalling pun, I apologise...) on this issue, whether or not they determine to support Margo MacDonald's Bill on Assisted Dying? We've a parliament now, lets make use of it, shall we?


  1. This is one of the most interesting and well argued blog posts I`ve ever had the pleasure of reading.

    Splendid stuff.

  2. "Their comments reflect the proprietorial sense that they’re talking about England – and that Scotland is already occupying alternative conceptual space. We’ve stopped being us. Equally, however, the macro-United Kingdom is generally identified legislatively with Westminster."

    I was as annoyed as you about the media's lazy presentation of the Debbie Purdy ruling as one that applied to 'Britain', which it clearly doesn't (and thanks to 'Dougthedug' for sending me a link to your post). However, I view the media's behaviour slightly differently from you. I think the generalisation from laws and political events that relate only to England (or, in this case, England and Wales) to 'Britain' is caused by either a) genuine ignorance on the part of journalists who simply take it as read that what is presented as UK- or Britain-wide (but is in fact England-specific) IS UK-wide: a symptom of outdated, pre-devolution 'Anglo-British' thinking; or b) deliberate suppression from news reporting of the fact that the laws or story in question relates to England only, as part of a more sinister agenda to keep English people ignorant about the democratic deficit they are under post-devolution: laws and policies that apply to England only (or at least, not all of the UK) being decided on by MPs from across the UK, without a reciprocal say for English MPs in devolved matters.

    Your example of tuition fees is a perfect case in point: applies only to England but was passed only because Scottish Labour MPs voted for it.

  3. Thanks for the comment, oh Watcher of the British Logos.

    I can absolutely see your point. While using a factually inaccurate discourse of "Britain" can be simple symptom of diddydom and lack of devolved competence among the press, it can also be employed tactically to conceal the real scope of a policy.

    As a well-balanced Scot, with chips on both shoulders, I suspect I'm more used to seeing it from the northward end of the Union-Jack stitched veil of Maya. As Alex Massie noted in his comments on the "assisted suicide" point over at the Spectator, frequently the Scottish example is a rebuke to the social analysis apparently driving a reform which strikes only in England and Wales.

    Another excellent example of this is are discussions concerning the fitness of juries to address "complex fraud" cases. While the proponents of this in the UK have frequently sounded shrill, the relative absence of comparative pressure in Scottish fraud cases puts to the question the factual verities of the basic claims of the English and Welsh reformers.