The prospect of legislation in the States of Guernsey which will permit assisted dying has raised concern amongst faith groups, and The Tablet reports that 53 ministers and officials from Roman Catholic, Church of England and Methodist churches on the island have signed an open letter in opposition to the move.

This post considers the scope and timing of the proposed legislation.

Legislative procedure

Guernsey’s parliament, The States of Deliberation, consists of 38 People’s Deputies elected from multi-member districts every four years, two Alderney Deputies appointed by the States of Alderney after an Alderney-wide plebiscite and two non-voting Law Officers: HM Procureur and HM Comptroller, both appointed by the Crown. It meets every three weeks except in school holidays.

On 7 February 2018, seven Members of the States lodged a Requête – P.2018/24 (Deputy St Pier and 6 other Members) relating to assisted dying for future consideration at States Meetings. Items for discussion are listed in a publication known as a Billet d’état; the States decides at the end of each Meeting what is to be debated at the next meeting. The Requête – P.2018/24 on assisted dying has been placed upon the Agenda for the next meeting which will be on 16 May 2018.

The Rules of procedure of the States of Deliberation and the Committees explain:

“’Requête’ means a request to the Presiding Officer, made in writing and signed by any seven Members (but not more than seven), that a matter other than a motion of no confidence be laid before a Meeting”.

Furthermore,

“28. (1) If any seven Members (but not more than seven) desire that a requête be laid before a Meeting they shall submit it to the Greffier who shall treat it as an item to be put to the States for consideration in accordance with the provisions of Rule 3. The Greffier shall also provide a copy to the Policy & Resources Committee, for that Committee’s opinion on the matters referred to therein.

(2) Upon notification of a requête the Policy & Resources Committee shall: (a) consult any Committees appearing to that Committee to have a particular interest in the subject matter of the requête; and (b) if considered necessary, set out its opinion in a letter of comment, appending thereto the views of all Committees so consulted.

(3) When a requête is laid before the States, the President, Policy & Resources Committee and the President of each of the Committees referred to in the preceding paragraph shall be entitled to speak: (a) immediately after a representative of the requérants has opened the debate; and (b) immediately before a representative of the requérants replies to the debate.

[HM Greffier is the Clerk of the Royal and Magistrate’s Courts, Registrar of the Guernsey Court of Appeal and Clerk and Registrar of the States of Deliberation and States of Election. He is also Registrar-General of births, deaths and marriages].

Requête – P.2018/24

The States are asked to decide whether, after consideration of the Requête titled “Assisted Dying” they are of the opinion to direct that:

1. The States agree in principle to the development of a suitable legal regime to permit assisted dying in Guernsey subject to and conditional upon: (a). the development of appropriate and effective capacity legislation and any other legislation which may be required; and (b). proposition 2.

2. The Policy & Resources Committee establish a working party with such membership as it sees fit and having consulted appropriately (for example, with members of the public, the Committees for Health & Social Care and Home Affairs, the Guernsey Disability Alliance, relevant UK bodies such as the British Medical Association) to report back to the States of Deliberation within 18 months with recommendations for a suitable legal regime, including consideration of inter alia: (a). the legal and professional obstacles required to be overcome in order to permit assisted dying in Guernsey; (b). whether it shall be a requirement that the individual is terminally ill and, if so, the means by which that shall be defined and determined; (c). whether it shall be a requirement that the individual shall physically administer the final act to themselves or whether it shall be permitted for others to assist; (d). whether there should be a requirement for individuals to be locally resident; (e). what measures are required to protect the vulnerable and prevent abuse of the legislation; (f). the numbers and roles of doctors under any proposed assisted dying legislation and whether they would be permitted to have any conscientious objection to an individual’s request; and (g). the age at which an individual shall have capacity for purposes of consenting under the assisted dying legislation.

3. The Policy & Resources Committee liaise with the States of Alderney to consider whether and how the States of Alderney and the States of Guernsey could work together to minimise the duplication of effort necessary to consider the issues in order to develop a suitable policy and legal regime to permit assisted dying in both islands.

The above Propositions have been submitted to Her Majesty’s Procureur for advice on any legal or constitutional implications in accordance with Rule 4(1) of the Rules of Procedure of the States of Deliberation and their Committees.

[As noted above, HM Procureur is a Law Officer, also known as HM Receiver General, who holds office through a Royal Warrant. As Head of the Bar, HM Procureur’s primary role is to provide legal advice to the States and their Departments and Committees, as well as the Guernsey Financial Services Commission. He or she also advises HM Greffier.]

Comment

Contrary to reports in some of the media, the wording of the Requête indicates that a law introducing assisted dying will not be introduced “within months”; be necessarily based upon the “Oregon model”; or be restricted to people with a diagnosed terminal illness. Whilst the latter may be the desire of those putting forward the proposal, it is not included in the wording, for which even the age of consent or the definition of “terminally ill” is open. Likewise, the introduction of such a law is unlikely to result in a “constitutional clash” with the remainder of the British Isles, any more than that resulting from legislation on abortion in Northern Ireland.

More significant, however, is the assumption that measures for assisted dying will be introduced, and the purpose of the consultations &c is to finesse the scheme, rather than to determine whether one should be introduced. There are clear parallels here with the introduction of same-sex marriage by the Westminster Parliament.

We will post an update after the meeting on 16 May.