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Why the law on assisted dying was unlikely to change in Guernsey

Lacking political will. Shutterstock

The recent vote by parliament on the small island of Guernsey, rejecting the legalisation of assisted dying, was not a surprise. If it had passed, Guernsey would have become the first place in the British Isles to offer assisted suicide for people with terminal illnesses.

But politicians in the British Isles – whether in Guernsey, the Isle of Man, or the UK – are unlikely to reform the law on assisted dying anytime soon.

This is not because politicians are unaware of the high and consistent public support for reform. Nor is it because they are any more conservative than politicians who did vote for change, like those in Belgium or in the Netherlands.

The simple reason why any politician chooses to support or reject a change in the law comes down to political realism. It is no accident that for the last 50 years, British political party manifestos have made no mention whatsoever of the words “assisted suicide” or “euthanasia”.

Parliamentary debates on the topic have been exclusively due to Private Members Bills (introduced by MPs who are not government ministers). To put their potential in context, Private Members’ Bills have as much chance – empirically speaking – of becoming an Act of Parliament as England have of winning the FIFA World Cup. Not impossible, just highly improbable.

The indefinite avoidance of legal reform on the issue of assisted dying by party leaders and government committees is a part of a wider strategy. And it is a strategy inspired by a basic type of political game theory.

The Italian scholar Giandomenico Majone (an acclaimed political scientist) puts it this way: in order to maximise their chances of reelection, politicians support distributive policies which serve the interests of particular groups of voters, rather than policies that are simply more efficient.

No amount of pro-choice campaigning or media attention demanding the legalisation of assisted dying can mitigate for the complete lack of support for reform from the British Medical Association and the General Medical Council.

So long as these key groups remain formally opposed (or indifferent) to a change in the law, so too will directly elected representatives.

And the situation for those seeking the reform of assisted dying laws in the UK looks bleaker still. The only way politicians will seek legal reform, without support from the leading medical professional bodies, is if the party political system is divided along religious lines.

A matter of (political) life and death

In the UK, the party political system is not divided along religious lines, it is divided by class conflict. Compare this to the system in Belgium and the Netherlands, where there are strong Christian Democratic political parties.

As a strategy to gain election, secular parties in opposition supported a number of liberal policies, one of which was the legalisation of assisted dying. This forced the Christian parties to defend positions which were out of line with popular opinion, giving the secular parties an electoral advantage.

Once the secular parties were voted into a coalition government, they then had to stick to their promise and pass a law allowing for assisted dying. Essentially, Dutch and Belgian parliamentarians dealt with assisted dying because of political party competition.

In the UK, however, no political party takes a religious stance on any particular moral issue. So there are no obvious election interests to justify putting the issue of assisted dying on the agenda.

This is political realism. Essentially, we can forget about any change in the law on assisted dying via a parliament in the British Isles unless one of the leading professional medical associations starts to push for change – or a religious political party becomes popular. For this reason, it is hard to agree with the recent assertion made by Guernsey’s chief minister, Gavin St Pier, that we will see an “inevitable change” in the law on assisted dying.

A strong constitutional court like Canada’s would be an alternative route onto the agenda. There, the Supreme Court struck down the Canadian criminal ban on assisted dying, forcing the federal government to amend the law. But British courts are not, as a matter of institutional structure, inclined towards judicial activism. So we will have to await the Court of Appeal decision in the recent Noel Conway case.

Like previous applicants before him (such as Tony Nicklinson), Mr Conway is seeking a judicial declaration that the ban on assisted suicide is incompatible with his right to private life under the European Convention on Human Rights. If Mr Conway is successful before the Court of Appeal, the government will almost certainly try to have the matter decided in the Supreme Court.

Even if the courts find in Mr Conway’s favour, the criminal ban on assisted suicide will remain in operation. It would, however, require parliament to debate once again whether the law should be reformed.

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