Why The Needle, But Not The Noose?

Sonia Sodha writes:

When independent MP Rupert Lowe asked about reintroducing the death penalty for “monstrous crimes” at Prime Minister’s Questions last week, Keir Starmer shut him down quickly. What was surprising was that the PM did not draw on the most obvious argument to do so: that killing someone as a form of punishment has no place in a civilised society. Instead, he relied on pragmatism: it does not work in deterring crime, and because innocent people are sometimes found guilty, it would inevitably result in people being wrongly put to death.

Which begs an important question: why, then, is Starmer in favour of assisted dying, which involves doctors prescribing lethal drugs to assist in the suicide of someone who is terminally ill? Assisted dying proponents would baulk at the idea of drawing a parallel between this and the death penalty. But there is one key similarity: inevitable mistakes will mean that people, sometimes very vulnerable individuals, end up suffering a wrongful death signed off by the state.

The response of proponents has been to dismiss concerns that the legalisation of assisted dying will lead to people wrongfully losing their lives. We have been told over and again that the system proposed in Kim Leadbeater’s private member’s bill would be completely safe.

But as the bill gets subjected to increasing scrutiny in the Lords – with a more comprehensive set of expert witnesses, and a scrutiny process less controlled by the bill sponsors – it is becoming increasingly apparent just how unevidenced these assertions are. It is also clear that vulnerable people being assisted to kill themselves by the state is a price some proponents are willing to bear, if it means those privileged with high levels of autonomy and loving families are able to make an empowered choice to end their lives after a terminal diagnosis. As one prominent proponent, the surgeon Henry Marsh, argued at a committee hearing, “there is always a cost… you justify that risk by saying more people benefit.”

There are three main types of safeguard included in the bill. First, it would restrict assisted dying to a restricted group of people with a terminal diagnosis and a prognosis of six months left to live. Second, doctors would be obliged to check if there is any coercion or pressure being applied to the individual in order to seek medically-assisted suicide. Third, they would have to have the capacity to consent to the prescription of lethal drugs under the Mental Capacity Act 2005. They all sound superficially robust, but under legislative scrutiny, it has become apparent just how weak they are.

On the six-month prognosis: systematic reviews show that they only have a 48% chance of being correct. Some people who get this prognosis may live for many years afterwards. There are experienced lawyers who think it is an arbitrary enough line that it will not survive a discrimination-based challenge under human rights law: why should someone with a year-long prognosis be denied access, for example?]

And what constitutes a “terminal” diagnosis varies from doctor to doctor; in some US states where assisted dying is legal, doctors have controversially decreed the symptoms of eating disorders – or even the disorders themselves – as “terminal” conditions and signed off on suicidal young women whose conditions other doctors may deem treatable for assisted deaths.

On coercion checks, anyone familiar with safeguarding knows how subtle coercive control in intimate and family relationships can be. A national review of child safeguarding shows that even experienced social workers fail to detect coercive control in family settings involving vulnerable children; we know from the family courts that judges get this wrong too. The idea that two doctors, most likely with fairly cursory levels of training, will be able to reliably detect when someone is being pressured into an assisted death by an abusive spouse, or adult child, is hopelessly naive.

Last, capacity as defined by the Mental Capacity Act is a very thin test to apply to the prescription of lethal drugs. Expert after expert – including psychiatrists and lawyers – have come before parliamentary committees to explain why it is inappropriate to apply a test designed to prevent doctors from giving medical treatment without consent – people are always assumed to have capacity unless it can be shown otherwise – to a consent to end one’s own life with medical assistance.

Many people with serious learning disabilities, or significant mental illness, would pass a capacity test. It means someone who feels depressed and suicidal – a natural initial response to a terminal diagnosis that often passes with time – would be able to qualify for medically-assisted suicide.

Proponents of assisted dying want us to believe there is always a bright line to be drawn between people who are terminally ill, making a rational, settled decision to end their lives, and other suicidal people; but as the government’s suicide prevention adviser has repeatedly argued, no such line exists. As palliative care consultant Katherine Sleeman has argued, if this bill passes, it implies the health system must shift from an assumption of suicide prevention to suicide assistance at the point at which someone receives a six-month prognosis.

Compounding the issue is the fact that there is a right of appeal to the three-person panel that will sign off on doctor decisions on assisted dying for applications that get rejected. But there is no way for relatives who may be much better placed to know about coercion or capacity to directly raise concerns if an application gets signed off.

In fact, the first they may know about their loved one exploring assisted dying is a notification letting them know they have died. Imagine being the parents of a depressed 19-year-old who has received a terminal cancer diagnosis and opted for assisted dying without informing their family. But it is the inevitable consequence of treating medically-assisted suicide as akin to just another other medical treatment.

The parliamentary debate thus far has highlighted the clash between those who want the process to be as easy as possible for empowered individuals with loving families, and those who see the need for safeguards to prevent vulnerable individuals, including those with mental health issues or learning disabilities, or who are in abusive relationships, from being sucked into the assisted dying “pathway” and being inappropriately given lethal drugs by doctors in the expectation they will use them to end their own lives. Depressingly, it is very much the former who are winning, and their bill, which poses a clear danger to vulnerable individuals, looks set to pass.

Which brings us back to the prime minister. Does he – utterly implausibly – deny that people will wrongfully lose their lives, sanctioned by the state, as a result of this bill that he supports? Or does he support it anyway?

And if so, why does he believe that the fact that the state inevitably makes mistakes is a good justification for opposing the death penalty, but not assisted dying? Is it that he believes the benefits it provides to the autonomous outweigh the mortal risks to the vulnerable? It’s time for him to be clear.

There are always supposed to be safeguards. Where assisted suicide has been legalised, decriminalised, or effectively permitted, then, with little or no further legislation, it has been extended to conditions such as chronic pain, which I have; limited mobility, which I have; clinical depression, which I have; and material poverty, to which I am not a stranger, as we disabled people disproportionately are not.

The legalisation of assisted suicide would give to a High Court judge in the Family Division such power over life and death as no judge in this country had enjoyed since the abolition of capital punishment. My paternal grandfather was born before such working-class men could vote. My maternal ancestors included African slaves, Indian indentured labourers, and Chinese coolies. We who come off the lower orders and the lesser breeds, and especially those of us who are disabled, know full well who would be euthanised, and how, and why.

There is no argument from bodily autonomy, since anyone who might request assisted suicide would by definition have lost that by then. Life expectancy is notoriously difficult to predict, coercive control is notoriously difficult to identify, elder abuse is only beginning to be recognised as endemic, and it cannot fail to raise suspicion that most so-called mercy killings are of women by their male partners.

Yet the restoration of capital punishment would effectively decriminalise murder. Even if the legislation provided for it, then no judge could conceivably accept a majority verdict in a capital trial. In the Britain of this century, there would always be at least one of 12 randomly assembled members of the general public who would vote to acquit anyone rather than risk the imposition of the death penalty. Those who wanted to bring back what they saw as higher qualifications for jurors would, if anything, increase that number.

If there were never any realistic possibility of a conviction for murder, then no one would ever be charged with it. Instead, ways would be found of convicting murderers of manslaughter, which already gives rise to resentment. So convicted, they would almost certainly be released earlier than if their records were of intentional homicide. Britain would become a very much more dangerous place.

Who among the people who became judges in today’s Britain would ever impose the death penalty? Who among the people who became prosecutors in today’s Britain would ever seek its imposition, or chance that by bringing a charge of murder? Elect them, you say? Elected Members of Parliament rejected capital punishment by 403 votes to 159 the last time that the House of Commons divided on it. Under a Conservative Government. 31 years ago.

The remaining proponents of the death penalty would support it only for certain classes of murder. Yet that whole concept was used in 1969 as the definitive argument for making permanent its 1965 suspension. The alternative, it was argued, would have been a reversion to the 1957 Homicide Act, with its intolerable obscenity of, yes, different classes of murder, some of which were capital offences while others were not. Thus was it declared better, or at least not as bad, to murder one person rather than another. Between 1957 and 1965, there were two executions per year, a kind of symbolic blood sacrifice return to which would have been grotesque. That was the knockdown argument for getting rid of the whole thing forever, and it still is.

That, and the suggestion from Willie Ross, Harold Wilson’s only ever Secretary of State for Scotland, that if execution were to be retained, then it ought to be carried out on television. That unanswerable line shocked a number of waverers into the Aye Lobby. Ross, who was also a staunch opponent both of devolution and of EEC membership, was no liberal, having tried to ban ITV from carrying advertisements on Sundays, Christmas Day and Good Friday.

Nor was the Home Secretary in 1969 Roy Jenkins, but Jim Callaghan, who had previously been Parliamentary Adviser to the Police Federation. Callaghan pointed out that there had been no increase in the murder rate since the suspension. If the figures for violent crime are much higher today, then that is because all sorts of extreme violence is no longer tolerated, or at least not as much as it was. In the days that half or more of the remaining supporters of the death penalty were coming of age, then those acts might officially have been illegal, although even that was not always the case, but they were treated in most or all ways as if they were perfectly within the law.

People were formed by the brutality of daily school violence (including corporal punishment, which was so ubiquitous that it was obviously a complete failure in its own terms), of socially respectable domestic violence, of regular fights at work, of routine fights of what would now be a very uncommon ferocity in and around pubs, of National Service, and so on, all against the ever-present societal memory of the War and of mass pre-War deaths from poverty-related illnesses or from the lack of workers’ protection. Life was just cheaper.

“Centrist” opponents of the death penalty nevertheless have their wars, their self-indulgent refusal to enforce the drug laws, their Police brutality and other street violence, their numerous life-shortening consequences of economic inequality, their abortions, at least putatively their euthanasia, and so on. They must answer for themselves on those points, as must opponents of those things who would support capital punishment, although in my 30-year experience in the pro-life movement that oft-alleged position is practically unheard of. We have no case to answer to either of those charges. Axel Rudakubana had in any case pleaded guilty to something that he had done when he was 17, so he would never have been executed, but the argument that that would have been cheaper was and is Kit Malthouse’s argument for assisted suicide.

Enoch Powell always did oppose the death penalty, and in a quarter-century of dealing with American paleoconservatives, I have found that they were at least as likely to oppose it as to support it. Traditional conservatives may be, with Muslims, the people most likely to think that there were an argument in favour of the principle, but those would also be two of the three groups most likely to be on the receiving end if it were ever brought back. The Old Right may talk about safeguards of this, that or the other variety, but they know that if those had been possible, then there would never have been abolition. They themselves would not have been executed in those days, but that just made them privileged, and they are more and more conscious of being from the other side of the tracks these days. Who among them would not be branded a “misfit” or a “loner” by Keir Starmer?

The third category of likely victims of restored capital punishment would be the Left, a section of which, on this as on the nuclear weapons to which Powell was also implacably opposed, used to be open to the charge of hypocrisy, since it did not seem to mind either of them in countries of which it approved. Still, that was only ever a section of the Left, even if it was quite a large section at one time, and on both points it would be vanishingly small now. There are some Muslims against whom the claim could be made, but the screaming hypocrites about the death penalty are still the liberal supporters of military interventionism, and now also of assisted suicide.