A constitutional expert on the relationship between the two jurisdictions, he has ruled out the Privy Council blocking the law and said that fears that residents could be prosecuted under the UK’s Suicide Act could be resolved.
Lord Falconer was Lord Chancellor and Secretary of State for Constitutional Affairs and later Secretary of State for Justice in Tony Blair’s government between 2003-2007, during which time he was responsible for the UK’s relationship with the Crown Dependencies
In a letter to Deputy Gavin St Pier, who is leading moves to introduce assisted dying, Lord Falconer praised Guernsey as a ‘mature, serious forward-thinking jurisdiction’ before dismissing two legal arguments against the legislation.
‘There has been an implication that the Privy Council could withhold Royal Assent. There is no precedent to support such a view,’ he wrote.
‘The Privy Council would only ever intervene in a matter which is clearly within your government’s competence, were you to pass legislation which breached the United Kingdom’s international obligations.
‘For example, in the hypothetical case of your parliament passing legislation which authorised your police to torture suspects, this would be a breach of the European Convention on Human Rights. In practice, the Ministry of Justice would intervene long before the matter reached the Privy Council. In short, there are no constitutional risks should you proceed with legislation which would allow assistance for the terminally ill to determine the timing of their own deaths,’ he went on.
In March, Deputy Mary Lowe, president of the Home Affairs Committee, said that Guernsey citizens would be subject to punishment in a UK court if they were involved in assisted dying, even in the event of its legalisation locally, due to the Suicide Act 1961.
Lord Falconer wrote: ‘I note that the extra-territorial reach of offences under the Suicide Act 1961 to British citizens wherever they may reside, has also been commented on. In my view, any prosecution of a matter which is not a criminal offence under Guernsey law would be an abuse of process, given the legitimate expectation arising from such a law.
‘However, having said that, I would understand the reluctance of any individual to act where a theoretical risk of prosecution still remains. This could be addressed relatively simply by primary legislation in the Westminster parliament.’
Lord Falconer signed off the letter by stressing that the legal concerns are ones that arise when any jurisdiction in the British Isles or Overseas Territories with British citizens proceeds with similar legislation.
‘In other words, Guernsey is not in a unique position and accordingly I would expect Her Majesty’s Government would engage in a constructive, non-partisan way to resolve this particular challenge,’ he said.
Deputy Lyndon Trott, a signatory to the assisted dying requete, said: ‘Lord Falconer is a privy counsellor. He visited the island a number of times during his period in office. And as a former Lord Chancellor, he understands the constitutional relationship between Guernsey and the UK.’
Deputy Lester Queripel, another signatory, added:
‘Lord Falconer also clarifies that the issue of the extra-territorial nature of criminal offences for British citizens under the UK’s 1961 Suicide Act are surmountable and not unique to Guernsey. The requerants have always felt that this was a hurdle rather than an insurmountable obstacle, and therefore we very much appreciate and welcome such experienced third-party affirmation from Lord Falconer.’
The assisted dying requete will be debated on 16 May