The right to die -v- the right to life

The EU Directive published today on the right to die places the EU Commission on a direct collision course with the Council of Europe, which is still, in its European Convention on Human Rights, rather sold on the outdated notion of humans having a so-called “right to life” (Article 2).

The right to life is incorporated into UK law by the Human Rights Act 1998.  Because today’s Directive has direct applicability, the right to die established in today’s Directive is directly incorporated into UK law, with immediate effect, by the European Communities Act 1972.  This is an Act, which, as the late Master of the Rolls Lord Denning observed, Parliament may not have the freedom to repeal that it imagined it would have, when it passed the Act, even if UKIP gets elected to power.

As from today, therefore, without Parliament having to lift a legislative finger to implement the EU provision, the new British right to die now sits uncomfortably alongside the old British right to stay alive.

In many cases, the right to choose, of the patient himself, in this case to choose whether to stay alive or to be killed, will doubtless govern which of the two conflicting rights trumps the other.  However, in the cases of patients lacking the mental capacity to tell us whether they want to live or to die, some very interesting test cases are doubtless in the offing.

When the individual whose life is at stake lacks the mental capacity to decide for himself, who will decide for him, and on what basis? What if their family members do not agree?  For example, in the case of an unhappy or indifferent senior citizen with dementia, what happens if his son wants him dead, but his daughter wants him alive?  Or, in the case of a child too young to express verbally an informed choice as to whether he would prefer to be killed, or allowed to continue his life for its natural course, what if the mother wants the child dead, but the father wants the child alive?  Which relative’s wishes trump those of the other relative, in such difficult cases, and on what basis?

Happily, the Directive does make some small effort to address these difficult questions, in the brief section towards the end, on “safeguards”.  However, the safeguards seem to have been drafted primarily with elderly candidates for euthanasia in mind.  (Doubtless this is because the economic ill-effects were uppermost in the minds of the EU Commissioners when drafting the safeguards, of denying the right to die to unproductive senile baby boomers whose children are fed up with them losing control of their bowels at home.)

But equality is a well-established doctrine of modern European jurisprudence, reflected both in the cutting edge wisdom of the EU, and the antiquated vestigial impact of the anachronistic Convention of yesteryear.  And one well-recognised “protected characteristic” (to borrow a phrase from the Equality Act 2010) of today’s equality ethos is age.  Age Equality demands that the involuntary euthanasia safeguards promulgated in the Directive should be applied equally to granny, who has lost her mental capacity, and to junior, when junior is still only a baby, and who has thus not yet developed his or her own mental capacity, or (at least) the ability to communicate his preferences.

In the famous Factortame test case, the House of Lords considered the effect of the European Communities Act 1972 upon the later Merchant Shipping Act 1988.  The court drove a cart and horse through the doctrine of the Legislative Supremacy of the Queen in Parliament.  The court simply “disapplied” the later Act, as though Parliament had never even bothered to pass the Merchant Shipping Act in the first place.  The entire Merchant Shipping Act became a nullity.  It was as good as repealed, by our highest court, which knew that it and the rest of us were subservient to the EU, and which reminded Parliament in no uncertain terms that so was Parliament, and retrospectively to boot.

If the safeguards in today’s euthanasia Directive, drafted with those near the natural ends of their lives in mind, are applied evenly to those at the beginning of their lives, our new Supreme Court will need to deploy considerable sophistry, in order to avoid disapplying the Abortion Act 1967, by applying the same reasoning as prevailed in the House of Lords in Factortame.

The profitability of the killing industry overall won’t be affected, because what will be lost on the roundabouts will likely be gained on the swings, so-to-speak.  The British Pregnancy Advisory Service and others have the option of diversifying, to save their businesses from bankruptcy, and perhaps even to cash in on the latest change big time. Fewer customers, but much bigger ones, would be carried through their doors.  They could charge the relatives more for each unit of human death service delivered than they have been getting away with charging per capita for the greater number of little ones killed hitherto.

But what about the climate?  In which direction will the calorific yield move, of the sum total of the corpses that fuel the crematoria that nowadays heat our hospitals?   The yield will certainly increase in the short term, as the new law is tested in the courts.  But long-term?  It’s hard to say.  On the one hand, as abortionists love to remind us (as though this was remotely relevant to the ethics of their industry), many of their victims are really quite small when they meet their untimely ends.  But on the other hand, an awful lot of the little ones euthanased have gone up the chimney since the Abortion Act 1967, Roe v Wade, etc.  Eight million or so in the UK the last time I checked, and about seven times that number in the USA.   I will leave to others the task of calculating the net effect upon anthropogenic climate change of today’s surprising change in the law.  Will the change increase or reduce the affect upon the climate wrought by the carbon footprint of humanity’s killing and incineration of its unwanted members?

This is a year that is likely to be remembered in British legal history for many generations.  If the lawyers are on their toes, today’s EU Directive will enrich their beleaguered professions, lead to a resolution of the pension crisis in about twenty five years time, and in the mean time save many a father from the grief of losing a son or daughter to the widespread euthanasia of the very young, at the whim of his son or daughter’s mother.  This change will save more innocent lives amongst the young and small, than the guilty and the innocent lives of the large and aged it destroys put together.  Provided, that is, that the benefits of the euthanasia safeguards, drafted for the benefit of the old, and hidden near the end of the EU Resolution, are extended to the young, in the name of Age Equality.