Lord Falconer: government must clean up assisted dying legal mess

The government must make parliamentary time available to reform the law on assisted dying, Lord Falconer, the sponsor of a private member’s bill on the issue, has urged.

After winning only 21st place in the peers’ lottery for private legislation, the new shadow justice secretary is warning that the existing law – which criminalises those helping the terminally ill end their lives – is in a mess and no longer capable of being enforced.

His assisted dying bill, which includes legal and medical safeguards, made significant progress in the last parliament but eventually ran out of debating time. He will reintroduce it this session. Without some form of government support, however, it is unlikely to become law.

Falconer, who was justice secretary and lord chancellor under Tony Blair’s administration, took over last month as Labour’s justice spokesman when Sadiq Khan resigned to campaign for the party’s candidacy in the London mayoral race.

Pledging to push for a reversal of legal aid cuts and an improvement in voter registration and to oppose Conservative plans to scrap the Human Rights Act, the legal veteran says he is determined to ensure that the disadvantaged are not denied justice.

Speaking at his home in Islington, once New Labour’s metropolitan heartland, the 63-year-old lawyer highlighted the legal uncertainties confronting relatives of the terminally ill.

His bill provides assistance for patients who have formed a “clear and settled intention” to end their life, subject to the approval of two doctors and a high court judge.

“You should be able to have a prescription you can take if you have less than six months to live,” he explained. “This is an issue the public have a real interest in. The courts have repeatedly said it’s a matter for parliament.

“There’s real problems with the existing law. It’s a crime to assist someone to take their own life with a maximum of 14 years in prison but the law is not enforced. The director of public prosecutions decides whether or not there should be a prosecution.”

Whether or not a relative is motivated by compassion may, effectively, be the deciding factor in bringing a prosecution, but, Falconer pointed out, “being motivated by compassion is not a defence”.

He added: “[The law] is in a mess. Surely parliamentary time should be made available for the matter to be debated? It should not be decided by the random result of a lottery in a ballot [for private members’ bills]. I’m not asking the government to support or oppose [the bill] but to make time so that parliament can do what it’s supposed to do.”

Falconer will write to Lord Taylor, the Tory chief whip in the Lords, this week putting his request for additional time.

“The major changes that happened to divorce, homosexuality and abortion in the 1960s were made through private members’ bills for which the government made time available,” he said.

Falconer said he would be happy if an MP who secured a high place in the Commons’ private members’ ballot adopted his bill. Alternatively, he would explore whether his initiative could be carried over into the next session of parliament.

The issue of assisted dying resurfaced again last week when a British man, Jeffrey Spector, a 54-year-old father of three, who feared he would be paralysed by an inoperable tumour, travelled to the Dignitas clinic in Switzerland.

Many religious groups and some prominent doctors remain deeply opposed to legalising euthanasia. Last week, the Scottish assembly defeated another assisted dying bill by a majority of 82 to 36.

Falconer, however, expects much of his time in the Lords to be taken up with resistance to Tory proposals to scrap the Human Rights Act. “It would be retrograde,” he said. “David Cameron cannot understand what he is proposing.”

The fact that the government’s final bill has been delayed should not be cause for comfort, he says. Introducing it after an EU referendum in which the UK voted to stay in the EU could be more dangerous. “Then there might be a savage attack on human rights as compensation,” he suggested. “It would be a disgraceful thing to do.”

A former flatmate of Tony Blair, Falconer is a trusted Labour figure whom the party’s acting leader, Harriet Harman, chose to recall to frontbench politics. He is a leaner and fitter figure than he was earlier in his career.

“When I was lord chancellor [2003-2007], I was 16st 6lbs,” he explained. “Now as shadow lord chancellor, I’m 11st 10lbs. I cut out alcohol, reduced food, started exercising and running.” His remaining vice is six cans of Diet Coke a day. “I like Coke,” he said.

On access to justice, Falconer is adamant that the coalition’s austerity programme must be reversed. “I understand that the government has to make cuts in public expenditure but this was unnecessary and an extremely damaging cut focused on the least advantaged in society,” he said. “It would have minimal effect on public expenditure issues.

“Ken Clarke, who was a great defender of the rule of law, must have been dozing at the moment [the Legal Aid, Sentencing and Punishment of Offenders Act 2012] was embedded in statute.

“I would do my best to restore the funding cut … Over time, a point must be reached when [legal aid] advice is available [again] for those who do not have it. The law has become, in some respects, disabled from being properly fair ... It has been a catastrophic retreat from what had been previously accepted.”

Voter registration is another personal concern. “People in the rental sector, people from black and minority ethnic groups ... are now much less likely to be registered,” Falconer said.

“That had an impact on the election. Only 43% of 18- to 25-year-olds voted. That’s a group which might have favoured Labour. Do we need to change the law? I can’t believe that all parties are not committed to the highest level of of registration.” Other official databanks might be consulted to increase registration rates, he believes.

In Labour’s leadership race, Falconer has declared his preference for Andy Burnham but will not be drawn on party politics. “I will carry on [as shadow justice secretary] until a new leader is elected,” he explained. “I would like to continue [beyond then]. There’s so much at stake.”