Care Not Killing attempts to silence Holyrood on assisted dying

Care not Killing describes itself as “a UK-based alliance of individuals and organisations which brings together disability and human rights organisations, healthcare and palliative care groups, and faith-based organisations, with the aims of (1) promoting more and better palliative care; (2) ensuring that existing laws against euthanasia and assisted suicide are not weakened or repealed during the lifetime of the current Parliament; (3) influencing the balance of public opinion further against any weakening of the law.” Via a brisk report in the Scotland on Sunday this morning, we learn that the group has written to Alex Fergusson, Holyrood’s presiding officer, attempting to pre-emptively scotch the Assisted Dying (Scotland) Bill.

I’ve been unable to find a copy of the letter on their website – this seems like hush hush advocacy – but the report gives us a sense of its gist. Argues the group, Holyrood cannot legislate on assisted dying, because to do so would be to go beyond its jurisdiction, as fenced in by our old friend the Scotland Act and its ethical associate, the Human Rights Act. Section 29 of the Scotland Act provides that Acts of the Scottish Parliament shall not be law if they are outside the powers devolved. Care Not Killing undoubtedly have section 29(2)(d) in mind, which binds Holyrood over not to legislate incompatible with the rights afforded by the European Convention. The Presiding Officer becomes involved under section 31(2), which determines that Fergusson:

“shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament and state his decision.”

That is the technical detail. What seems to be the group’s substantive argument? Specifically, they reference Article 2 of the European Convention, which reads as follows –

Article 2 – Right to life

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

a. in defence of any person from unlawful violence;

b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

c. in action lawfully taken for the purpose of quelling a riot or insurrection.

The group’s central point – that euthanasia is incompatible with Article 2 – has never, to my knowledge, been adjudicated on by the European Court. The group’s suit thus rests on shaky legal authority at best. You might recall the Pretty v. United Kingdom case from 2002. The European Court of Human Rights rejected Diane Pretty’s arguments, holding that “no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from Article 2 of the Convention”. Significantly, the Court also made the following, Delphic pronouncement on the issue –

“However, even if circumstances prevailing in a particular country which permitted assisted suicide were found not to infringe Article 2 of the Convention, that would not assist the applicant in this case, where the very different proposition – that the United Kingdom would be in breach of its obligations under Article 2 if it did not allow assisted suicide – has not been established.”

It is worth remembering that both Belgium and the Netherlands have instituted legal arrangements, sanctioning assisted dying. Both are members of the Council of Europe, subject to the same obligations in respect of Article 2. The compatibility of these arrangements with Convention rights have been verified by the Belgian Conseil d’Etat and the Dutch Council of State. The following section is snipped from a 2003 Parliamentary Assembly Report on Euthanasia, and gives a sense of the Belgian Court’s arguments for compatibility:

“It is worth dwelling on some of the arguments put forward by the Belgian Conseil d’Etat, (Supreme Administrative Court) which underlie its conclusion that the bill (now law) on euthanasia was not incompatible with the provisions of the European Convention on Human Rights. The Court noted in particular, after analysis of the relevant jurisprudence of the European Court of Human Rights, that the positive obligation incumbent on Parties to protect the right to life must be balanced notably against the individual’s right of self-determination.

This meant that the obligation of the authorities to protect the right to life (Article 2) must be balanced against the right of the individual to be protected from inhuman treatment or punishment (Article 3) and against his or her right to physical and moral integrity, deriving from the right to respect for private life (Article 8). The Convention offered no guidance as to how this conflict between fundamental rights should be resolved.”

Further, a quick search on the internet revealed this post from the Dutch authorities, vindicating their view that the article and their provisions on euthanasia are compatible. To paraphrase Clausewitz, Care Not Killing’s letter seems like a pretty rum attempt to use law as another means of doing politics. Significantly so, since as the above analysis hopefully makes clear, their case for incompatibility isn’t strong. In that context, their suggestion that “MSPs would be acting outwith the parliament’s jurisdiction if they even debated the proposed bill” is a scandalous bit of scaremongering. Don’t win the argument on the floor – simply silence everyone. So it begins - only a little sooner than I expected.