26 September 2019
It’s the Law
But is it right?
By Lynda Goetz
This week 80-year-old Mavis Eccleston was cleared of murder and manslaughter after a two-week trial in Stafford Crown Court. She had been accused and dragged before the courts after a suicide pact with her 81-year-old terminally-ill husband had gone tragically wrong. After penning a 14-page suicide note, Mrs Eccleston had given her husband of nearly 60 years, Dennis, a lethal cocktail of prescription drugs and then downed her own dose. However, the couple were found by relatives and rushed to hospital where Mrs Eccleston was resuscitated, but her husband, subject to a ‘do not resuscitate’ order, was allowed to die.
The couple’s family claim that Mrs Eccleston was treated not only insensitively but inhumanely by at least one member of the psychiatric nursing staff (who allegedly told her she had murdered her husband and would be going to prison for a long, long time) and in particular by the police, whom they allege said they would make an example of her. Her son, Kevin, told journalists that a senior police officer told him and his sister Joy, “I am going to make a precedent of your mother’s case”. When Kevin protested, the officer apparently said, “It’s the law of the land.” Assisted dying may currently be against the law of the UK, but should it be?
In Mestre near Venice in Italy an unemployed economic migrant was recently fined €350 (£310). For what? For sleeping on the streets? For littering? For cooking up his breakfast in a place of cultural and historic interest? No, not for any of those things. He was fined for cleaning the streets ‘without council authorisation’. It is apparently common in Italy for migrants without much prospect of employment to make themselves useful by sweeping the streets and picking up leaves and litter. They say that they prefer to contribute in some way to society rather than simply begging. (Presumably they expect a few coppers from passers-by for their efforts). The offence giving rise to the fine was for ‘cleaning the area without council authorisation’. It is hard to see the justification for such regulations (unless perhaps the council charges for permits giving the right to clean?); so it may be the law, but is it right?
We come next, of course, to the other legal issue of the week, the prorogation, or in fact the non-prorogation. Boris’s decision was, as anybody who was not living on Mars (or perhaps in red smoke-filled Indonesia) is aware, declared illegal and, as his old enemy George Osborne declared gleefully on the cover of the Evening Standard, Boris was ‘GUILTY’. As has been pointed out by many pundits, this decision by the Supreme Court will be viewed differently depending to some extent on which side of the fence you are sitting; however, it is now law. Few will disagree that it is a monumental decision as regards our constitution and that it is a decision which will reverberate down the decades or even centuries.
On the one hand we should all be pleased that the Gina Millers of this world with the money to challenge governments are, with us, living in a country which allows them to do so; that former prime ministers are able to stir up trouble amongst current MPs and not get clapped in jail or ‘disappeared’ and that an executive which gets above itself can be slapped down by an impartial judiciary. Dictators are not allowed to thrive within our system and parliamentary sovereignty prevails.
However, on the other hand, none of this would have been necessary had our unwritten constitution worked as it was supposed to have done. Parliament used to police itself. Now as Harry de Quetteville says, ’The courts police Parliament’ and we are on a ‘slippery slope to a US supreme Court system’. We had a referendum, which we were told would be honoured whichever way it went. (Referendums, it is fair to say, have not been a part of our democracy throughout most of our history). To everyone’s shock, it went a way the government and the MPs did not expect and, in spite of voting (after Ms Miller’s first intervention) to invoke Article 50, many MPs have subsequently, with the help of a Speaker who has proved anything but impartial, done everything they could to thwart the result of that referendum.
Without going through the unbelievable twists and turns of the last few years, not to mention months or days, it was available to Parliament to call a vote of no confidence in the Prime Minister if they did not like what his government was doing. They did not do so. They could have agreed to the PM’s call for a general election. This is generally the way out of a situation where the Government is incapable of governing, as this government surely is now with no majority at all. But no, Parliament has used the Fixed Term Parliament Act (FTPA) and the requirement for a two-thirds majority to block the government from going to the country. It is hardly therefore surprising that, faced with such opposition to implementing what the majority had voted for and MPs had agreed to see through, the Government too resorted to somewhat dubious tactics. However, our estimable judges made no reference to these background matters, nor were they of course obliged to, in spite of their relevance in the circumstances.
What does seem odd in this Supreme Court decision is the preparedness of all 11 judges to wade into the political arena. The three judges in the High Court had previously declared the matter to be non-justiciable, but allowed the appeal. The Supreme Court was also looking at the Government’s appeal against Scotland’s highest civil court, The Inner house of the Court of Session, which had already declared the prorogation illegal. These victories for Gina Miller and Joanna Cherry MP, far from confirming the ‘separation of powers’, cannot but call into question the extended role which the judiciary has now cast for itself. Will there be a rush to the courts every time the Opposition disagree with an executive decision? Barrister Bobby Friedman writing in The Telegraph is both respectful of the judges and convinced of his view that they are wrong.
In declaring this prorogation illegal (whilst not bringing into question others which happened in the 20thC), the Supreme Court raises the possibility of the politicisation of judicial positions. Even if this does not happen and parliament does not move to making judicial appointments, it will become inevitable that if judges make political judgements, then their independence and impartiality will be questioned as, inevitably, people focus on their political opinions and beliefs, rather than simply the technicalities of the legal position.
At the end of the day, the law has to be respected, but that does not mean that all law is good law. The regulations in Italy regarding street cleaning may be petty and pointless and not really concern us, but the fact that they exist at all should. The more meaningless and petty regulations exist, the less respect people will have for the laws that matter. The law in this country regarding assisted suicide or assisted dying dates back to the 1961 Suicide Act and has been under debate for some time. It is argued by those who have family members who are terminally ill or who fall into that category themselves that there is no humane way out. Many would argue that we treat our dying pets better than we treat dying people, but the issue is a complicated one and the law lags behind the science. As for our constitution, yesterday’s decision probably makes little difference to Brexit in the short term, but a lot of difference to how we view our judges in the long term.