Ms Rachel Woods:

Good morning. As the Cathaoirleach has said, I am the assistant secretary with responsibility for criminal justice legislation in the Department of Justice. I appreciate the opportunity to address the committee in relation to the legal and constitutional context in Ireland for assisted dying.

I am sure the committee is already well aware that fundamental rights lie at the heart of this difficult issue and I agree that this is a good place to start. I will provide an outline of those rights and the current position under the criminal law.

Article 40.3.2° of the Constitution guarantees that the State in its laws safeguards the right to life of every citizen. Article 40.1 guarantees that all citizens shall be held equal before the law. The courts have held that together these two paragraphs commit the State to valuing equally the life of all persons. The European Convention on Human Rights provides that everyone’s right to life shall be protected by law. The obligation to safeguard the right to life is why, in the absence of any legal framework to provide for assisted dying, the State has, and must have, laws to protect life.

I am very conscious that all of the language used in this debate has important connotations and meaning so I am using language like assisting suicide specifically because it is the language currently on the Statute Book. The offence of assisting suicide stems from the time when suicide and attempted suicide were criminal offences at common law in Ireland. This meant that any person who was an accessory to a suicide or an attempted suicide could also be tried as if he or she were a principal offender. The Criminal Law (Suicide) Act 1993, decriminalised suicide itself but the offence of assisting suicide was retained and put on statutory footing. Under section 2(2) of the 1993 Act, it is an offence for a person to aid, abet, counsel or procure the suicide or an attempt at suicide of another person. The offence has a maximum penalty of 14 years' imprisonment on conviction on indictment. The offence was retained given perceived dangers in its abolition, that the sanctity of human life had be respected and the law could not condone a person who wilfully encouraged or assisted the taking of a human life, even if the actual act is self-inflicted. The severe penalty was to cover situations where a person deliberately procured the suicide of another for his or her own motives. The law recognises a scale of different offences within that offence. Prosecutions under the 1993 Act are at the discretion of the Director of Public Prosecutions.

The constitutional context was clarified in the 2013 Supreme Court case of Fleming v. Ireland and Others. Ms Fleming, who suffered from multiple sclerosis, challenged the 1993 Act on the basis that section 2(2) was invalid having regard to the provisions of the Irish Constitution and her rights pursuant to the European Convention on Human Rights. While acknowledging the very distressing situation of the appellant, the Supreme Court upheld the constitutionality of the Act. The basis for the decision was that there is no constitutional right to commit suicide or to arrange for the ending of one’s life at a time of one’s choosing. The court further found that it is not possible to identify a constitutional right for a limited class of persons, in this case persons suffering severe pain arising from a terminal and degenerative illness, who have the capacity to consent and wish to have the assistance of a third party to end their lives. It held the prohibition on assisted suicide was neither discriminatory nor contrary to the European Convention on Human Rights. However, the court clarified that its judgment did not prohibit the Oireachtas from legislating for assisted suicide, assuming appropriate safeguards could be introduced. If the Oireachtas were to legislate, the courts would determine if the make-up of such a regime was constitutionally permissible and the practicability of any measure would be assessed in determining its constitutionality. The court, in confirming compatibility of the offence of assisted suicide as it currently stands in Ireland with the European Convention of Human Rights, was guided by case law of the European Court of Human Rights. That court has held that it is primarily for states to assess the risk and likely incidence of abuse if a general prohibition on assisted suicide was relaxed or exceptions were to be made. However, it has cautioned that the risks inherent in such a system should not be underestimated and as such, strict regulations are all the more necessary.

That effectively summarises the current constitutional and legal position. The Department of Justice recognises this matter as complex, giving rise to medical, ethical and moral issues, as well as criminal justice and constitutional issues that need to be considered. Any move to legislate for assisted dying would require changes to the Criminal Law (Suicide) Act 1993. The nature of those changes would depend on the detail of the framework being considered. There would remain a need for the law to provide adequate protection against any inducement, incitement, pressure or force being used in respect of an assisted suicide and those safeguards would need to be enforceable by An Garda Síochána.