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The End of the House of Lords

What presumably is the last decision, ever, of the Appellate Committee of the House of Lords, was issued on 30 July. The jurisdiction of the Committee (and more) will be exercised from October 2009 by the new Supreme Court for the United Kingdom, sitting in the historic Middlesex Guildhall in Parliament Square, London.

Purdy, R (on the application of) v Director of Public Prosecutions [2009] UKHL 45 is a fitting finale to the work of the House of Lords, balancing judicial restraint with an application of the Human Rights Act in a manner that was both subtle and sensitive. The plaintiff suffered from severe and progressive multiple sclerosis. In due course, she wanted the option of ending her life, preferably with assistance from her husband, if that could be done without exposing him to prosecution. In England itself, the Suicide Act 1961 made it an offence to aid the suicide of another: s.2(1). Ms Purdy proposed to end her life in Switzerland, where assisted suicide is lawful. But it was unclear whether the British legislation would apply in any event, and how any discretion to prosecute would be exercised.

The case therefore involved two questions. The first was whether s.2(1) applied to an act of assisted suicide that began in England but ended in Switzerland. The second was the impact of the protection of ‘private life’ under the ECHR on the requirement for the DPP to consent to a prosecution under s.2(1). The case was resolved on the latter ground. Following the Strasbourg court in Pretty, the House held that the manner of dying is itself an act of life, that the Convention protection was attracted and that the right could be affected only in accordance with ‘law’. While the DPP had general prosecutorial guidelines, they were not sufficiently precise, in their application to this form of prosecution, to satisfy the requirements of legality under the Convention, so as to enable a person to ‘regulate his conduct without breaking the law’. It followed that the DPP must publish an ‘offence-specific’ policy on the circumstances in which prosecution is likely to be initiated, so as to enable Ms Purdy to make an informed decision.

The meaning of s.2(1) was not finally settled. It was not necessary to do so; and in any event, this case exposed difficulties in the application of the section, which were not fully canvassed in argument. But the case provides a vignette of the link between the House of Lords as a legislative and as a judicial body, which is now gone. As Baroness Hale noted, as the Law Lords moved to decision, the House of Lords as a legislative body was debating legislation that might have resolved the case, by limiting the offence of assisted suicide. The proposed legislation failed, in the face of arguments that suggested that the matter was better left to the discretion of prosecuting authorities. These events were mentioned in several Opinions in passing, as relevant both to a decision not to interpret the Suicide Act in a way that would, in effect, change the law and to the final decision of the House to require greater transparency from the DPP.


By way of a postscript: note the article on ‘Farewell to the Law Lords’ in The Times on 30 July, by David Pannick QC. It traces the development of the Appellate Committee from 1824, when cases were heard by lay peers on a ‘daily rota’, to the appointment of professional Law Lords in 1876, to the (almost) final abdication of an active legislative role by the Law Lords in 2005. The House of Lords offers a stunning example of institutional evolution over a long period of time. It will be interesting to see how the British constitutional system adapts to the transition to a Supreme Court under a version of separation of powers, through what by contrast is a short sharp shock.

1 comment:

  1. This is a fascinating post, raising interesting questions of institutional endurance. One note on the underlying dynamics of the assisted suicide decision: there is somewhat of a contradiction between the approaches of the legislative and judicial components of the House of Lords. It seems as if the House of Lords as a legislative body ultimately punted the issue to the prosecutors, while the Law Lords held that the prosecutors had insufficient guidance to be allowed to prosecute. The contradiction and lack of coordination is ironic, given that one motive for ending the appellate jurisdiction of the Lords was that the same body should not be both a legislative and judicial one. Strike one for separation of powers formalism.


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