The Royal College of Physicians (RCP) have just discovered that those who resist a change in the law on assisted dying want to bring US culture wars to the UK. And those culture wars are fought as much in the courts as anywhere else. Yesterday the judges said no to a legal challenge to the RCP’s decision to change its stance from opposition to changing the law on assisted dying to neutrality. But it might only be the beginning.
But first, cards on the table.
I support a change in the law to allow those who are terminally ill to receive medical assistance to end their own life at a time of their choosing. The change in the law I support contains safeguards to ensure those who seek that medical help are doing so of their own free will, and not as a result of any outside pressure.
My experience of the view of doctors on the issue is similar to the non-medical population - some strongly support, some strongly oppose, most want the position to be made clear, so people know where they stand.
Most of the people in that large middle group think assisted dying should be allowed because they know it happens anyway and they think people should be able to make that choice. Many people have had experience of a loved one dying which makes their support come out of personal experience.
The RCP has 35000 fellows. Its role is to promote change in healthcare policy.
The Council of the RCP decided to poll its members on the issue of assisted dying, and to adopt a neutral stance on the issue, unless 60% favoured either opposition to or support for a change in the law.
The results of the poll, published this week, show 43.4% of 6800 respondents thought the RCP should be opposed to a change in the law on assisted dying, compared to 44.4% when the survey was last conducted in 2014, and over 70% in 2006. The percentage wanting the RCP to support a change in the law increased to 31.6% from 24.6%, and 25% thought the RCP should be neutral.
In the light of the decision of the Council to conduct the poll and its result the RCP now has a neutral stance on the issue. This seems eminently sensible. There is no overall majority either for or against assisted dying in the respondents to the poll. If the RCP came out either for or against a change in the law, the proponents of the opposite course would point to the fact that if you add the 25% to the opposite cause there would be a majority against the position taken by the RCP.
But whether I think it’s sensible or not is most certainly not the point. It’s for the RCP to make up their mind how to develop their stance on this issue, not for outsiders like me who have a strong view on the issue.
The governance of the RCP has three levels: an AGM, held once a year, a Council of mainly elected RCP members which meets six times a year, and a Board of Trustees consisting of the six elected officers of the RCP, four members of the Council, and four lay members appointed by the Board of Trustees.
It was the Council who decided on the poll, and the neutrality position unless 60% adopted a for-or-against change position. It is for the Council to decide how to formulate policy. It is for the fellows to intervene in the various ways available if they don’t like what the Council have done.
There have been howls of anguish against this decision from those who oppose a change in the law. This isn’t even mildly surprising, speaking as someone who has been a supporter of assisted dying for many years.
As reported on by Joshua Rozenberg in the Gazette last week, a legal challenge was brought against the RCP, seeking to prevent the RCP from adopting a neutral position. It was rejected on the papers by the High Court on Thursday but may still be brought for an oral hearing.
The bringing of court action is alarming not just for the message it sends to medical organisations – ensure we get the result we want or we take you to court – but for the networks of anti-choice campaigners behind the challenge.
The challenge according to the claimants in the proceedings asserted the poll ’unfair, irrational, and a breach of legitimate expectation.’
Part of the campaign in support of these proceedings included supportive statements and a press release from ADF International, a UK-based offshoot of an organisation called Alliance Defending Freedom.
The Alliance Defending Freedom is an infamous US based organisation which funds and defends neo-conservative causes in court. The Southern Poverty Law Centre, a civil rights and anti-racist law group, founded in 1971, describes the ADF as follows:
‘Founded by some 30 leaders of the Christian Right, the Alliance Defending Freedom is a legal advocacy and training group that has supported the recriminalization of homosexuality in the U.S. and criminalization abroad; has defended state-sanctioned sterilization of trans people abroad; has linked homosexuality to pedophilia and claims that a ‘homosexual agenda’ will destroy Christianity and society. ADF also works to develop ‘religious liberty’ legislation and case law that will allow the denial of goods and services to LGBT people on the basis of religion.’
ADF International are one of a web of groups opposed to assisted dying who in a variety of ways supported the JR. This is new to the UK political and legal landscape. It is not a good development. It lacks transparency. And it seeks to make our courts much more political than they have ever been in the past.
The RCP has got caught up in these clanging culture wars that so characterise debate in the US, and spill over loudly and expensively into the courts.
It’s for our courts to decide whether they need to tell the RCP how to make policy.
There may come a time when the judges have to decide whether our current criminal law offends article 8 of the European Convention on Human Rights, which was incorporated into our domestic law by the Human Rights Act 1998. That is a legitimate issue for the courts to decide.
The judges might think teaching the policy makers how to make policy is not their job.
Lord Falconer of Thoroton is a Labour peer and former lord chancellor, 2003-2007