Ending of life – the common law and legislation

Dr Huw Evans, academic lawyer, Cardiff Metropolitan University

The Terminally Ill Adults (End of Life) Bill (the Bill) is currently before the UK Parliament and if enacted will radically change the law in England and Wales concerning the ending of life.

This is an example of law-making through the parliamentary process.

This is to be contrasted with the 1993 House of Lords decision in Airedale NHS Trust v Bland [1993] 1 All ER 821 (the Bland case), a case that also significantly changed the law concerning the ending of life. The Bland case is an example of law-making through the common law process.

This article discusses those contrasting processes and issues arising, both about the law and law-making.

The Bill and the parliamentary process

Under the Suicide Act 1961 it is an offence for a person (A) to encourage or assist in the suicide of another person (B). It is punishable with up to 14 years imprisonment.

If the new Bill becomes law, it will make assisted suicide lawful in restricted circumstances. Those circumstances include that B: is an adult with capacity; has a clear, settled and informed intention to die; has a terminal illness; and is expected to die within six months.

The Bill has generated passion with MPs being allowed to vote according to their conscience. The Bill may not become law, but the outcome will be through a democratic and considered process.

The Bland case and the common law process

Common law is judge made through caselaw based on precedent. Acts of Parliament take precedence over the common law and can replace it.

But in some areas Parliament has not legislated and the common law still prevails, as with the law of homicide, which is relevant to the Bland case.

The offences of murder and manslaughter (except for corporate manslaughter) are common law offences: i.e. contrary to common law, not to legislation such as burglary under the Theft Act 1968.

In the Bland case, due to catastrophic and irreversible injury inflicted in the Hillsborough Disaster in 1989, Anthony Bland was unable to see, hear or feel anything.

He was in a persistent vegetative state and only kept alive using life support.

With the agreement of his family, Bland’s medical team sought a declaration that withdrawal of life support would be lawful, and that it was in his best interests.

Going ahead without a declaration meant that a police investigation for murder or manslaughter was a realistic possibility.

The House of Lords gave the declaration. It stated that a declaration of this type applied only to acts of omission to end life (e.g. withdrawal of life support) but not to positive acts (e.g. administering a lethal injection).

So, the common law in some circumstances permits A to end B’s life when B cannot consent provided it is through an act of omission, and it is in B’s best interests.

I would argue that in those circumstances the common law permits involuntary euthanasia.

Although, perhaps unsurprisingly, this is not generally acknowledged: e.g. see NHS guidance regarding euthanasia.

Issues arising

Two significant issues arise from the Bland case: the first, regarding the constitutional appropriateness of the common law as a vehicle for law change, and especially of this magnitude; and the second, regarding the substantive law.

Although informed by real life cases, the common law is not derived from a democratic process. Judges are not elected. Sometimes there is judicial reluctance to step in and extend the common law, as it is seen as more appropriate for parliament to change the law.

This was not the case in the Bland case, although this aspect did trouble some of the judges, such as Lord Mustill.

Parliamentary sovereignty is at the core of the UK constitution. Substantive law-making in matters of such societal concern through the common law is inconsistent with this.

If the court had refused the declaration in the Bland case, that position would have been respected, however harsh that might have been from a humane perspective.

The Bland case significantly changed the law in a matter of societal concern, but it did not have anywhere near the same level of scrutiny and public participation to which the Bill has been – and is being – subject. That is wrong.

Regarding the substantive law, as the common law develops on a case-by-case basis its progress is piece-meal. As it is case dependent, law might not develop because there is no case.

The law on the ending of life currently lacks coherence. For example. the common law distinction in the Bland case between negative and positive actions is difficult to justify – lawfully withdrawing life support is as much a positive action as unlawfully administering a lethal injection, surely?

The Bill reminds us of the importance of parliamentary scrutiny and how legislation can be informed by public input.

But the Bill also remind us that good legislative law-making should seek to make the law coherent. That could have arisen if the Bill had sought to place ending of life generally on a statutory footing: i.e. covering assisted dying, and euthanasia – both voluntary and involuntary.

As well as all other aspects, this would have at last meant Parliament directly considered the circumstances of the Bland case, which, to remind, dates from 1993.

The resulting law would also have legitimacy which, I argue, is lacking under the common law concerning the ending of life.

In that situation judges would still decide cases and interpret the law, but it would be firmly within a legislative framework.

Law Commission review

And there is a possible opportunity. The Law Commission of England and Wales has announced that it is to undertake a review on the law and sentencing in homicide.

The eventual report can inform putting the law of homicide on a holistic and statutory footing,

Part of that exercise can involve defining in a considered and comprehensive way when it is lawful to end life or assist in its ending.

But there is a dampener. The Law Commission’s announcement included:
The operation of the homicide offences is inevitably relevant to the voluntary termination of life and assisted dying. However, these are matters of grave public policy and will not be dealt with in this review, except so far as necessary to recommend coherent homicide law reform. [emphasis added]

The law on the ending of life is not coherent and it should be made coherent. And that argument must be won if this opportunity is to be realised.

Devolution postscript

As justice is not devolved, the Bill, the Suicide Act 1961 and the relevant common law applies to England and Wales. Scotland and Northern Ireland have competence to make their own arrangements.

Devolution of justice to Wales would at least give Wales the opportunity to provide the coherence that is needed.