One of the arguments that has come to the fore in the debate surrounding whether assisted dying should be legalised in England and Wales is the “slippery slope” theory – that even if the legislation contains watertight qualifying criteria and safeguards, the law will inevitably be expanded in time and the restrictions loosened. Here is an explanation of why lawyers disagree about the likelihood of this happening.
Won’t clearly defined legislation prevent a slippery slope?
Critics would argue that it will not. One argument is that while parliament might vote now to adopt a restricted version of assisted dying, MPs might expand it over time as assisted dying is normalised. That is the prerogative of parliament, but the more pressing concern for lawyers is whether or not there will be successful human rights challenges from people denied access to assisted dying under the current criteria, which would force an expansion in eligibility through the courts that MPs did not anticipate.
Has the law been expanded in other countries after the introduction of a right to die?
Canada’s medical assistance in dying (Maid) laws, crafted in response to a supreme court decision, initially extended only to terminally ill Canadians. However, in 2019, a Quebec judge ruled that restricting access to those who had a “reasonably foreseeable death” was unconstitutional, forcing federal lawmakers to expand the existing laws.
Euthanasia laws in the Netherlands have been expanded but not because of legal challenges.
What has the European court of human rights said on the matter?
The Strasbourg court has never required a member state of the European convention of human rights (ECHR), to which the UK is party, to extend its assisted dying or euthanasia regime beyond its initial limits, and has ruled many such challenges inadmissible. It has said in more than one case that there is no right to die under the ECHR.
In a ruling this year, the court said states enjoyed a “considerable margin of appreciation” (but not unlimited) in deciding on the balance between accommodating people’s wish to be assisted in dying and the risk of abuse, given the issue raises “extremely sensitive moral and ethical questions, and one on which opinions in democratic countries often profoundly differ”.
On what basis could a legal challenge be made to the UK law?
In a letter to the Observer, almost 50 leading law professors and practitioners, including king’s counsels and the former lord chancellor Robert Buckland, said limitations in a UK law on assisted dying “would be challenged in court as unjustly discriminatory”. Expanding on this argument in a blogpost for the UK Constitutional Law Association, one of the signatories, Philip Murray, a college assistant professor in law at Robinson College, Cambridge, said it would be ripe for challenge under article 14 of the ECHR, which prohibits discrimination and was incorporated into UK law by the Human Rights Act 1998.
Murray wrote: “Once it is recognised that the suffering and alleged loss of dignity experienced by terminally ill adults justifies the legalisation of assisted suicide, refusing to extend this to people who are not terminally ill but who nonetheless experience acute suffering will require the clearest justification under article 14. It cannot be argued that the lives of such people are more worthy of protection than the terminally ill.”
While acknowledging that the European court of human rights had not intervened in other cases, Murray said: “None of the European countries with assisted suicide laws is as ostensibly restrictive as the Leadbeater bill seems likely to be.
What is the counter-argument?
Lord Falconer, a former lord chancellor who is supporting the bill, said any legal challenge would be “hopeless”. “The English courts and the European court of human rights in Strasbourg have said time and time and time again, assisted dying is not something prescribed by the convention,” he said.
Alexander Horne, a barrister and former parliamentary lawyer, concurred, also citing the Strasbourg court’s previous pronouncements. “Discrimination is not freestanding,” he said. He added that there was no right to assisted death in European convention on human rights, so “I’m not really sure how you then complain about discrimination”. He added that the Strasbourg court was “going to be quite slow to suddenly turn around and say something which is very contested and clearly a moral issue [is something] they should interfere with”.
