Death, Democracy and Delegation

I have a new post at the UK Con Law Group blog. I praise the Ménard report recently commissioned by the Assemblé Nationale while reiterating my earlier criticisms of the Irish High Court decision in Fleming v. Ireland, [2013] IEHC 2.

Here is the closing paragraph:

Whatever its ultimate fate, the Ménard report’s orientation is preferable to that of the Irish High Court. Legislators cannot foresee every eventuality. A legitimate response is to vest discretion in administrative actors. Once this has been done, however, decision-making with a public aspect is preferable to decision-making behind closed doors. Moreover, published guidelines can provoke popular debate and legislative reaction, thereby playing a democracy-enhancing role. Even if the Ménard report proves legally flawed, it has highlighted the democratic potential of administrative guidelines.

I should say, given that I have come back to give it several kicks, that I think the High Court's analysis of the constitutionality of the prohibition on assisted suicide was much, much better than that of the Supreme Court.