Purdy and Assisted Suicide in the Northern Ireland Assembly

In heated Assembly debate last week MLAs took turns to pour scorn on the House of Lords decision in R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45. At the end of July Debbie Purdy (pictured with her husband, Omar Puente), who suffers from primary progressive multiple sclerosis, succeeded in her judicial review seeking further guidance upon the exercise of prosecutorial discretion should her husband assist her if she chose to commit suicide. In the aftermath of this decision the Director of Public Prosecutions in England and Wales and the Public Prosecution Service in Northern Ireland undertook to clarify their guidance.

Mr Danny Kennedy (UUP, Newry & Armagh) rounded on the courts as the instigators of the assisted suicide debate:

‘The present debate in the UK flows from the decision that the Law Lords made a relatively short time after Parliament had spoken definitively against suicide. That is not how the law in the United Kingdom or anywhere should be made. The courts exist to interpret law, not to make it’.

Mr Simon Hamilton (DUP, Strangford) followed with an assertion that, ‘we were seeing another example of potential legislating from the bench. That is not the way that law is or should be made in this part of the world. Law is supposed to be made by legislators such as us and enacted in the courts by the judiciary, not made by the judiciary itself’.

Campaigners in favour of legalising assisted suicide may well regard Purdy as a vehicle for advancing recognition of a right to die in the United Kingdom (see R (on the application of Pretty) v DPP [2001] UKHL 61 and Pretty v United Kingdom [2002] 35 EHRR 1). Many Members of the Northern Ireland Assembly seem to foresee the judiciary achieving this end against the wishes of legislators. The House of Lords, however, made no attempt to declare the offence of assisting suicide incompatible with the ECHR or to depart from Pretty (see Lord Hope, [18]). It took Ms Martina Anderson (Sinn Fein, Foyle) to inject a note of realism into the debate when she recognised that:

‘The Law Lords found that it would be a breach of Debbie Purdy’s human rights for her not to know whether her husband would be prosecuted for accompanying her to the Swiss clinic where she wishes to die. … We are now seeing those guidelines being issued: we are not seeing assisted suicide being legalised’. (emphasis added)

The Purdy case focused entirely on the issue of the untrammelled discretion granted by Parliament to the CPS and PPS to prosecute such cases only where it would be in the ‘public interest’ to do so (see section 2(4) Suicide Act 1961). Having emphasised the importance of Parliament debating the legality of assisted suicide (at [58]), Baroness Hale separated these concerns from the current appeal in the next paragraph of her speech (at [59]): ‘A major objective of the criminal law is to warn people that if they behave in a way which it prohibits they are liable to prosecution and punishment. People need and are entitled to be warned in advance so that, if they are of a law-abiding persuasion, they can behave accordingly.’

During his diatribe against the decision, Mr Hamilton claimed to, ‘understand [the] point about the guidelines’, continuing that ‘I understand the position into which the PPS has been put by the verdict in the Purdy case’. However, it is the legislature’s reluctance to address the issue of assisted suicide and to sweep the matter under the carpet using a prosecutorial discretion which has, ultimately, required prosecutors to formulate their guidance notes. If these matters are indeed too weighty for the discretion of individual Law Officers when assisted suicide is at issue (as suggested by Professor Keown), Parliament and not the courts created this situation.

Moreover, until the transfer of criminal law competence, MLAs cannot be considered legislators in this field. At present, all areas of the criminal law remain reserved matters (specified in Schedule 3 to the Northern Ireland Act 1998), meaning that the Westminster Parliament retains the responsibility to legislate for them. However, sections 4 and 86 of the Northern Ireland Act 1998 do provide for rapid transfer of powers to the Assembly by Order in Council, and the decade-long impasse regarding the devolution of policing and justice powers appears to have edged closer to a resolution with last week’s talks.

Mature legislative reflection, stripped of some of the hyperbole which dogged this assisted suicide debate, should have led MLAs to the conclusion that, in , the House of Lords did not alter the law of assisted suicide, but required that the DPP clarify the rules under which he exercises his discretion to prosecute in assisted suicide cases (and it remains within the power of legislators to issue stricter guidance, if they wish, through primary legislation).

Nonetheless, the eagerness of MLAs of all parties to debate and legislate upon these matters provides the clearest possible sign of the imminence of a long overdue breakthrough in the deadlock on devolution of legislative competence in the fields of justice and policing. People living in Northern Ireland can only hope that, in these fields, the legislative learning curve will be steep.