The Senedd should decide about assisted dying in Wales

Dr Huw Evans, academic lawyer, Cardiff Metropolitan University

In a recent Nation.Cymru article former Counsel General, Mick Antoniw, was reported as arguing that the Terminally Ill Adults (End of Life) Bill  (the Bill) is a ‘big test for the devolution settlement’.

I disagree with that view from a legal perspective but agree from a moral standpoint.

I argue that the Senedd should be given legal competence to pass its own law regarding assisted dying for Wales.

Does the Bill require Senedd consent?

The Bill is proceeding before the UK Parliament. If passed, it will apply to both Wales and England and, subject to strict safeguards, would allow a person with a terminal illness to be assisted in ending their life.

Under the UK uncodified constitution, the UK Parliament is supreme and (in theory) can pass what law it chooses. Despite the fact of devolution, according to this doctrine, the UK Parliament can pass law in devolved areas. Devolved legal competence is not protected, or entrenched as lawyers say, as it is by other state constitutions.

But there is a convention (known as the Sewel Convention) whereby the UK Parliament will normally only pass law in a devolved area if the devolved legislature consents. This convention is reflected in legislation. A legislative consent motion (LCM) signifies that consent.

Mr Antoniw argues that as the Bill concerns health, a devolved area, the UK Parliament should only proceed if the Senedd has passed an LCM consenting to the Bill.

He also acknowledges that the Bill is concerned with the criminal law – which is not devolved – but, such is the substantive connection with health, an LCM is needed.

Criminal law

I disagree. Yes, the Bill, if passed, will substantially have impact on health but, except for one limited area, its direct concern is the criminal law.

Under the Suicide Act 1961 it is an offence to assist in the suicide of another person. This is punishable on conviction with up to 14 years imprisonment.

The Bill, if passed, will decriminalise assisted dying in limited and very clearly defined circumstances.

Decriminalisation will impact on health as it creates the conditions under which assisted dying can be lawful. But the substance of the law change is not directly about health.

Any change in the criminal law – whether criminalising or decriminalising – can have impact on devolved areas; as well as health, the Bill will have impact on, for example, social care and housing,

There is one specific area where the Bill touches on health as a devolved matter and, in that case, it respects the devolution settlement. This is about provision of support services for assisted dying.

For England, the Bill states that regulations about support services must be made by the UK Government. For Wales, the Bill states regulations about support services may be made by the Welsh Government: i.e. the decision to provide support services and, if so, what they should be, is left to the Welsh Government.

As drafted, in my view, the Bill respects the existing devolution settlement. The adequacy of the settlement is another but separate matter.

This is a dry legal analysis. But it seems to be one shared by the Bill’s promoters and provides a defensible position for countering Mr Antoniw’s argument.

In fairness to his argument and my counterargument are just that – arguments. It would need a court ruling to provide a definitive answer.

There is a higher ground

But stepping outside narrow legal debate, let’s consider things on a normative basis: i.e. what the position should be. This can lead to a position closer to MR Antoniw’s.

Although the Bill is primarily defined with the criminal law, if passed, it inevitably and substantially will have impact on health, a devolved area. As a moral claim, at a minimum, the Senedd should have the right to be consulted about that impact in Wales.

Furthermore, if the Bill becomes law, it will not be because of UK Government policy but due to parliamentarians voting for it guided by conscience – not the whip. The Bill is rooted in morality and individual conscience.

This provides the basis for stepping outside formal legal analysis of the devolution settlement, and about what devolved and non-devolved areas the Bill is concerned.

The decision about whether assisted dying is lawful in Wales should be a decision that is left to the Senedd where its members vote according to their conscience.

Give the Senedd legal competence

And this could be achieved if there was the political will, both in the Bay and in Westminster.

The Bill could be amended so that it applied to England only to allow assisted dying. For Wales, it could give the Senedd legal competence to legislate in the same or similar terms as for England.

The Senedd would get the power to decide if assisted dying should be allowed in Wales within the parameters of what is decided for England. This would be a limited and bespoke extension of the Senedd’s legal competence. But it is one that can be justified on an exceptional basis.

Establishing a just devolution settlement and protecting that settlement from Westminster encroachment are broader issues to which we can return.