10 February 2015

Professor Chalmers: The law "cannot be stated with any degree of certainty whatsoever..."

As my regular readers will know, I’ve a raging hymenopterous beastie in my bunnet about the criminalisation of assisted suicide in Scotland. Two recent blog posts have examined Holyrood’s scrutiny of the late Margo MacDonald’s proposals to definitively legalise assisting suicide, and found it wanting.

Whatever you think of the issues, I argue, the law as it stands is intolerably value and unclear. Is it homicide to collect a vast stash of drugs and to give them to a loved one to take, to end their suffering? Is it murder, or culpable homicide, to assist your relative to mount a plane to the Dignitas clinic in Switzerland? What does the Lord Advocate think about these things? On all three, I argue, the legal answers are clear as mud, evasive, fudged. And that can’t be right.

Perhaps prompted by my girning blog posts, Patrick Harvie posed a number of these awkward questions to witnesses during a recent Holyrood evidence session on the Bill. Astonishingly, the Crown Office seems unable or unwilling to offer any guidance whatever on its understanding of the law here, complaining that they are subject to a live judicial review. Even taking this pending civil case into account, I find this reluctance to offer any meaningful steer to our parliamentarians on their understanding of the criminal law confusing, to say the least. But a seed of unease about the current law on assisting suicide seems to have been planted.

Interesting tidings, then, this afternoon from Professor James Chalmers of the University of Glasgow, who reports that he has been approached by Holyrood’s Health and Sports Committee "to answer a series of questions on the scope of Scots criminal law as it stands." Professor Chalmers’ full response to the Committee can be read here. But James provides this pithy, pretty damning summary of the law as it stands which should powderkeg the complacency which has characterised parliament’s analysis of the Scots criminal law on assisting suicide:

"... the core conclusion is a simple one: the scope of the criminal law in this area can not be stated with any degree of certainty whatsoever."

In its thoroughness, James’ analysis hammers home the uncertainty of the current law extremely effectively. Whether or not Parliament endorses this Bill, the criminal law cannot be permitted to remain as it is, uncertain, unprincipled, and relying on the untransparent exercise of prosecutorial discretion to avoid injustice.  

Under the European Convention on Human Rights, we are entitled to know what is and is not criminal, and the sanctions we expose ourselves to if we decide to transgress. These rights are fundamental, essential, minimal. In principle, the current legal regime on assisting suicide in Scotland fails to live up to these ideals, providing authoritative guidance for the citizen on what is and is not criminal, and what conduct may or may not attract a life sentence in prison. That is intolerable.

That the Health and Sport Committee is seeking learned advice on this neglected issue is a very welcome development. They are to be commended for rejecting the Justice Committee's complacent incuriosity, and posing the tough questions. Let's see what they make of Professor Chalmers’ equally challenging answers.


  1. Why is it important what the current law is when Margo's bill would trump it if passed into law?

    1. A few compelling reasons.

      1. The Bill is - in all probability - unlikely to pass. It is important that parliamentarians voting on it understand what regime they are leaving in place, and the problems which characterise it.

      2. Even if the Bill does pass, it proposes to decriminalise assisting suicide in narrowly defined circumstances. In order to do this in a clear-eyed way, we really have to understand the law into which this legislation intervenes. It isn't a straightforward "trumping" situation.

    2. Why will it not pass? It's supporters claim wide public support.

    3. That is certainly what the polling seems to suggest -- but if the last vote iin Holyrood was anything to go by (and that was a vote, not on the detail, but the general principles), many politicians are reluctant to touch the issue. I don't know if Patrick Harvie has more than an informal nosecount yet on how MSPs are considering voting at stage 1 of the Bill, but I would be surprised if this Bill reaches the statute book this time around.

    4. The public also supports bringing back hanging! But when law-makers consider something so drastic they get cold feet. And rightly so.

      I have real misgivings about it. Too complex to tell here. But on the other hand I recognise that large numbers of people claim to be in support. And that people don't like to be told they can't have something these days. They feel it's authoritarian to deny this wish.

      So then I think, let them have it. But let the NHS and state be no part of the provision. Just the regulation. Let those in favour put their money where their mouth is, so to speak, and organise it on a voluntary, non-profit, charitable basis.

      I think it's going to go through though.

  2. Just been reading Chambers 'Traditions of Edinburgh' of 1868 in which he suggests the Court of Sessions ran on the basis of 'Show me the man and I'll show you the law'.

    It appears from reading this flytin' of the Justice Committee and Professor Chalmer's evidence on the matter to the Health and Sport Committee this would remain the principal criminal law view of the Assisted Suicide Bill.

    By the way, did you know - according to Mr Chambers - that a 'Peat' was a QA who had a direct line of contact (usually familial) to one of their Lordships in the Court of Session. By taking on one their Lordship's 'peats' to plead your case, you were pretty certain of walking away 'Scot free'. If the case before the judges was being presented by 'peats' on both sides then, 'Show me the man and I'll show you the law.' would apply and the longest purse would carry the day. By the 1860's Mr Chamber's seeks to assure us in the Scottish Courts, ' .. the spots that once sullied the garments of justice are effaced ...'

    1. That's reassuring. *loads up with peats just in case*

  3. Worrying article from the Guardian about the eagerness of doctors to assist voluntary euthanasia in Holland: http://www.theguardian.com/society/2015/feb/17/assisted-dying-dutch-doctors-patient-law-netherlands

    Other studies of clients of the Dignitas clinic in Switzerland show similar patteens: the largest majority were those who were not terminally ill, but were just 'sick of life'. Most of them lonely old women.

    I just worry where it takes us as a society; as I feel that if non-terminally ill people are sick of life, then that's a problem for society, for the kind of uncaring, atomised, society we have become.

    Is all.