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.