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12 January 2023

The law against assisted dying is causing avoidable misery

As justice secretary, my consultation paper on assisted dying was blocked by No 10 – now others must reform a broken system.

By David Gauke

Ministerial life – exciting, stimulating and huge privilege that it is – is always full of frustrations. Most things that are worthwhile take time. They usually require the agreement of other people. Other people do not always agree. As a consequence, when looking back, quite of lot of my ministerial time was spent on ideas or initiatives that never properly came to fruition.

This does not necessarily mean that it is a terrible system. When not pushing my own ideas, quite a lot of my ministerial time, particularly when I was in the Treasury, was also taken up thwarting what I considered to be other people’s bad ideas. This constituted some of my best work. It is generally a good thing that a rogue minister or two cannot go off on a frolic of their own and do something ill-considered without seeking the acquiescence of colleagues. We could talk grandly of checks and balances, or discuss disapprovingly Liz Truss’s premiership.

But I was reminded this week of something I tried to do that came to nothing. In itself, it was a modest proposal but it related to an important issue. It was my attempt to nudge along the debate on assisted dying.

On Tuesday (10 January) Humanists UK published a draft consultation paper that I had commissioned in 2019 from Ministry of Justice officials on assisted dying. The paper requested evidence on “the positive and negative impacts of the encouraging and assisting suicide offence under the Suicide Act 1961, and of any potential amendment to the law on assisted suicide”.

The consultation paper was blocked by No 10. Not everyone in government was sympathetic to reform in this area and, to be fair, raising the issue of assisted dying in the last weeks of the May administration would almost certainly have provoked some mockery. The successor administration had little interest in the topic and the paper has only now been put in the public domain after a lengthy and contested Freedom of Information Act process.

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I was (and am) supportive of reform. These are matters of conscience in which MPs are given a free vote. There were limits to what I could do as justice secretary but it was obvious, even then, that parliament would one day return to the subject (the Commons had rejected reform in 2015) and my intention was to ensure that the debate was as informed as possible.

The particular aspect of the debate that concerned me most (or, at least, was where I could make a difference) was in understanding how the existing law worked. I had met Ann Whaley, whose husband, terminally ill and suffering greatly with MND, had planned an assisted death in Switzerland. His last days were made much worse than they needed to be after a police officer and social worker had visited the couple on suspicion that Mrs Whaley had coerced her husband into this decision and had made the arrangements herself. The thought that his widow might face a criminal charge and conviction was devastating to him.

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More widely, I heard of cases where lives were ended earlier than they would otherwise have been as the terminally ill flew to Switzerland while they could still endure the journey. Even more horrendously, there were cases of people making violent and desperately painful solo attempts at suicide so as to spare their loved ones any risk of prosecution.

The previous parliamentary debates on this topic had focused on the efficacy of safeguards to ensure that improper pressure was not placed on those terminally ill to end their lives prematurely. Protecting the vulnerable must be central in determining the law in this area but we should not assume that the current law is safe and humane. Leaving matters as they are is a choice, just as much as voting for change. For this reason, I wanted to provide an opportunity for people to come forward with evidence on how the law works. It was not to be, and no subsequent government has decided to issue a call for evidence.

As it happens there is another opportunity to gather evidence as to how the system operates. The Commons Health and Social Care Committee has begun an inquiry into the subject and has issued a call for evidence which closes on 20 January. The composition of the committee makes it very unlikely that it will recommend reform but if the process brings forward evidence from families about the iniquities of the current system (and there is an opportunity for members of the public to do so), parliament as a whole may find it compelling.

The debate around the world is moving quickly. There are 26 jurisdictions in which there are safeguarded assisted dying laws in place with many others – including France, Germany, Ireland, Jersey and the Isle of Man – moving in that direction. The Scottish Parliament has a measured and reasonable proposal on the table and could legalise assisted dying within a few years. Public opinion in the UK overwhelmingly favours reform.

The time will come soon when MPs will return to this issue. Rightly, they will again wrestle with the issue of safeguards and their effectiveness and will have a chance to craft a law that is right for the UK. But parliament should also be aware that the current law – untouched for 60 years – creates misery that should no longer be accepted.

[See also: Rishi Sunak needs to show the public he can do more than crisis management]

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