Guarding the Gates of St Peter, Bailiff's Lecture, Guernsey 21 October 2009

Abstract

In 1630, John Donne (the great poet and celebrated Anglican ‘divine’) preached a famous
sermon in Whitehall known as Death’s Duel. It was the last sermon he gave before he
died and it is widely regarded as his meditation on his own impending death. This seems
an appropriate place to begin an examination of the current legal controversies over
dying. Although the text is a religious one, Donne’s wider concerns show a number of
resonances with our theme. He was in fact a reluctant priest, having first practised law. In
1608, he wrote a pamphlet exploring the argument that suicide was not necessarily a sin
(published only posthumously in 1644). He also served briefly as a member of Parliament
and so had a legislative role.
Donne presented three senses in which God gave ‘deliverance’ in the context of the duel
with death. First, deliverance ‘from death’ which could be seen as the traditional preserve
of medicine of preventing unnecessary deaths. Second, deliverance ‘in death’ by which
God took care of us in the hour of death. Third, deliverance ‘by death’ – a theological
account of the Christian doctrine of eternal salvation through the death of Jesus. For the
purposes of this lecture, we can leave the first sense of deliverance for the doctors and the
third sense for the theologians. Our interest is in the second area of Donne’s concerns –
deliverance in process of dying and the role of lawyers in responding to it.
Over the past few months, we have seen three significant explorations of the issues in the
United Kingdom. On 7th July, legislators in the House of Lords considered an amendment
to the Coroners and Justice Bill 2009 that sought to provide protection for people
travelling to Switzerland to take advantage of the fact that assisted suicide is permissible
in parts of that Country.
1
At the end of the same month, the Judicial Committee of the
House of Lords, in the very last of its decisions before the appellate responsibilities
transferred to the new Supreme Court, delivered the opinions on Debbie Purdy’s
challenge to the law on assisted suicide in England and Wales.
2
As a result of the
requirement in that case for a clarification of the basis on which prosecution decisions
would be taken, a third event followed – the publication on September 23 2009 of the interim statement on the factors to be taken into account by Keir Starmer QC, the
Director of Public Prosecutions, to be finalized after a consultation period running until
16th December 2009.
The metaphor of the duel developed by John Donne seems particularly apposite for this
chain of events as through it we are seeing a series of skirmishes in the long running
guerilla war over how access to death should be regulated. It is fought between those who
see the issues as a matter of individual freedom and those who see it as independent
questions about the value and dignity of human life. Although the particular context of
this lecture is the duel of 2009 fought out in London, it can be seen across Europe and the
common law world.
There are those who see this as a war of attrition, by which the traditional approach to the
sanctity of human life is being gradually supplanted by a commitment to individual
autonomy that overrides all other concerns. They see the long-term trajectory as the
inevitable victory of the pro-autonomy army and the resistance as a doomed rearguard
action. From the perspective of those who deplore the change, the challenge is seen
through the metaphor of the slippery slope – each step towards so-called liberalization
needs to be contested to prevent the slide towards an amoral society in which choice is
valued at the expense of moral principle, human dignity and the protection of vulnerable
members of our communities.
It is therefore clear that these three specific legal events, a legislative vote, a judicial
decision, and an administrative policy need to be placed in the context of this debate
about our understanding of death and dying. Their coincidence also enables us to address
some difficult questions about the role of law and lawyers in the debate. How do the
responsibilities of legislators, judges and law officers differ in this area of law? At what
level should which decisions be taken? How are the constitutional limits on the three
arms of government to be interpreted? Answering these questions will enable us to
consider whether the keys to the gates of St Peter, the route into heaven, are in good
hands

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