The confirmation by the House of Lords that article 8(1) of the European Convention on Human Rights – right to respect for private and family life – may be engaged in the final moments of life, will certainly add fuel to the debate over assisted dying.
The Lords allowed Debbie Purdy's appeal and agreed that the Director of Public Prosecutions should issue clearer guidelines as to the circumstances in which prosecution in England & Wales might follow the giving of such assistance.
An essential part of the ruling was that Ms Purdy should have the information she needed in order to be able to take an informed decision in relation to this aspect of her private life – whether to seek to end it without the assistance of her husband.
She was not looking for an actual undertaking that her husband would be immune from prosecution for providing assistance, and that was the crucial difference between this case and that of Dianne Pretty in 2002. However the Lords departed from their ruling in Pretty that article 8(1) was not engaged, in light of the European judges' subsequent comments to the opposite effect in the same case.
It is important to note that the decision does not itself change the law regarding what is criminal, on either side of the border – the judges were at pains to point this out – but it does put the onus on the authorities, in Scotland as well as in England, to clarify policy in an area where the law at present is notoriously unclear and dependent on the exercise of discretion.
That should be welcomed whatever position you take in relation to the assisted dying debate.
The Lords may have given some impetus to the movement for reform, but the debate is still to be had over whether we should take the bold step advocated by some of declaring assisted suicide legal in certain cases, however defined. Article 8 having been invoked, however, delicate questions as to where to draw the line will arise whether in the context of civil right or that of immunity from prosecution. This issue is going to engage the attention of the public and of lawyers alike, for a good while to come.