More on Assisted Suicide and Guidelines

Richard Ekins has an interesting response to my post Death, Democracy and Delegation over on the UK Con Law blog.

I have just posted a comment in reply which is worth reproducing here:

I perhaps did not identify my central point with sufficient precision. My goal was to highlight the democratic potential of administrative guidelines, in terms of facilitating public debate inside and outside of Parliament, opening up the possibility of interaction between Parliament, the Director of Public Prosecutions and the public, and giving effect to popular opinion. Democracy does not (and ought not) begin and end at the edges of legislative chambers, a point underscored by the Menard Report. As is clear from my post, I agree with you that the Report’s proposals are ultimately unconstitutional, though because they breach the division of powers in the Canadian constitution, not the separation of powers. What is interesting is the Report’s emphasis on administrative guidelines as the means of giving effect to the popular will. More generally, administrative guidelines can be useful in responding to a lack of clarity in primary legislation. As Justice Scalia noted this week, albeit in a different context, about the need to engage in line-drawing when primary legislation is not clear: “These lines will be drawn either by unelected federal bureaucrats, or by unelected (and even less politically accountable) federal judges”. It is not obvious that only judges do and ought to have a say in situations where primary legislation is not clear.

Are the Irish and English prohibitions on assisted suicide clear? This is not a point I addressed at all in my post, but I can venture some observations here. Doubtless, section 2(1) is clear, but the presence of 2(4) complicates matters.Once one accepts (as I think one must, at least as a matter of law), that 2(1) engages Article 8(1) of the Convention, 2(4) takes on a character very different from the “130 or so” equivalent provisions (or, at least, those of them that do not violate Convention rights). It loses the character of a general supervisory power and adopts that of a discretion that must be exercised in accordance with individuals’ Convention rights. On this reading, 2(1) and 2(4) cannot be read in isolation but form part of a complete scheme the legitimacy of which must be assessed in the round. One could question whether administrative guidelines can ever be “law” for the purposes of this analysis. For my part, I think refusing to so recognize them is to privilege a formal conception of “law”. Guidelines are not simply internal tools but have an effect on the exercise of administrative powers and, in turn, on the legal rights of individuals. Given this effect, the foreseeability and predictability requirements of Article 8(2) kick in, and, more generally, disclosure of the guidelines becomes important.

As to the more general point about discretion and guidelines, I agree with Aileen. If enforcement discretion is being exercised, it is preferable that the relevant considerations be made publicly available. That is not to say that guidelines should always be required, just that administrative guidelines do no less violence to the rule of law than case-by-case decision-making behind closed doors.