IRISH EUTHANASIA BILL MEETS DEAD END

The Irish Parliament’s Oireachtas Committee on Justice in considering Mr Gino Kenny TD’s ‘Dying with Dignity’ Bill 2020’ confirmed in July 2021 they will not progress the bill to a final vote at this time.

Instead, the Committee recommended a special committee of the Oireachtas be established to examine the issue. This development is welcomed as close scrutiny identified serious flaws in the bill which could have endangered the vulnerable as well as posing possible court challenges.    The bill was introduced in September 2020 sponsored by Dáil Éireann Deputies Gino Kenny, Bríd Smith, Paul Murphy, Mick Barry and Richard Boyd Barrett.
A bold amendment to defer the bill for 12 months, put by Deputy Helen McEntee, Minister for Justice and Equality in October 2020 failed to stop the 2nd stage debate which passed 81 votes to 71.

Deputy McEntee’s amendment included the following:
• the Supreme Court has found 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, and that the prohibition on assisted suicide was not discriminatory and was not contrary to the European Convention on Human Rights.
• resolves that the Bill be deemed to be read a second time this day twelve months, to allow for scrutiny between now and then by a specially established Oireachtas Joint Committee in order to consider submissions and hold hearings that have regard in particular to:
— consideration of the medical, ethical and moral issues, as well as criminal justice and constitutional issues which arise.
— examination of the issues identified by the High Court in relation to developing and policing safeguards, which are needed to ensure that a qualifying person is not subjected to any pressure by any third parties;
The vote on Deputy McEntee’s amendment can be viewed on video – Amendment No 1 (postponed division) (Item No.19) –in the Irish Parliament HERE

Although the 2nd stage debate was passed it is reported a number of TDs [members of Dáil Éireann, the lower house of the Oireachtas (the Irish Parliament)] expressed reservations particularly about pressure that could be applied to people in vulnerable situations to opt for euthanasia. The next stage was to prepare formal scrutiny of the bill which included critique from parliamentary lawyers and a 14-member Committee - the Joint Committee on Justice.
The submissions were analysed, and advice obtained from parliamentary legal advisors (OPLA – Office of Parliamentary Legal Advisors (OPLA) on the legal and constitutional implications of the proposed legislation.

It is reported medical doctors and stories of people with terminal illnesses speaking out against the bill were influential in their deliberations. Over 1400 submissions from legal, medical, personal, academic, faith based and end of life or rights -based perspectives were received. Over 2,500 doctors signed a petition expressing their opposition to the Bill – including a large number of specialists in end-of-life care. The Irish Human Rights and Equality Commission (IHREC) outlined their concerns including lack of safeguards and said, “There is no ex ante independent mechanism to review either a declaration of a wish to die, or the process.”
Even news reports leaked that the bill was flawed in its drafting and that some MPs had not even read the bill!

The advice of the Office of Parliamentary Legal Advisors (OPLA) put the nail in the coffin of the bill exposing ambiguities and serious drafting errors that could potentially render the bill vulnerable to challenge before the court.

Read the full Houses of the Oireachtas Joint Committee on Justice Report on Scrutiny of the Dying with Dignity Bill 2020 [PMB] July 2021 HERE:

Legal scrutiny of the bill (Summary of OPLA Advice p 32)
1. The Supreme Court has acknowledged that the right to life in Article 40.3.2 of the Constitution extends to a right to die a natural death or to let nature take its course.3

2. The Supreme Court has also found that there is no constitutional right which the State, including the courts, must protect and vindicate, either to commit suicide, or to arrange for the termination of one's life at a time of one's choosing.4

3. The lack of a constitutional right to die does not preclude the State from legislating and
therefore, enacting a Bill such as the Dying with Dignity Bill, once the Oireachtas is satisfied that measures with appropriate safeguards are being introduced.5

4. A wide margin of appreciation is afforded to Members States by the European Court of Human Rights in the context of regulating end-of-life decision making.

5. Section 3, in its current form, would be vulnerable to a constitutional challenge as it is an over-delegation of Ministerial power which current caselaw has found to be no longer compatible with the Constitution.
6. The ambiguities and serious drafting errors in sections 7, 8, 9, 10 and 11 of the Bill, in their current form, contain flaws that could potentially also render them vulnerable to challenge before the courts. Sections 7, 8, 9, 10 and 11 could be collectively termed the ‘safeguarding provisions’ of the Bill. As discussed in the legal briefing, these safeguarding provisions contain ambiguities and errors that arise as a result of significant questions of policy not being addressed in the Bill.

7. There are errors of a more technical nature in all other sections of the Bill.

8. The Bill has no enforceable compliance or offence provisions, which is hugely problematic for this legislation given the statements from both the Irish Supreme Court and the European Court of Human Rights on the utmost importance of safeguards in legislation such as this.

9. Given the gravity of the debate, assisted dying warrants as rigorous an examination as possible. It is an important topic that would benefit from a detailed consideration of the issues by a Citizens’ Assembly or from referral to a Special Oireachtas Committee for further consideration. It was noted in the legal briefing that these fora cannot offer a debate on the issue in the immediate term, but there are significant policy questions outstanding, particularly in respect of the ‘safeguarding provisions’, which are required to resolved before this Bill could be amended or progressed in any way.

Note numbering below just relates to the sections of the report above.

3 Re a Ward of Court (withholding medical treatment) (No 2) [1996] 2 IR 79, [1995] 2 ILRM 401.
4 Fleming v Ireland [2013] IESC 19, [2013] 2 IR 417.
5 Fleming v Ireland [2013] IESC 19, [2013] 2 IR 417 at para 108

The legal analysis demonstrated the bill was not fit for purpose. The Bill in its current form was unworkable as fundamental elements surrounding safeguards were identified as problematic together with serious flaws which could have seen the bill open to challenge in the courts. The Committee’s decision was to abandon plans to proceed.
The Committee’s final statement was:
"Therefore, the Select Committee recommends that the Dying with Dignity Bill 2020 should not proceed to Committee stage but that a Special Oireachtas Committee should be established, at the earliest convenience, to undertake an examination on the topics raised within and which should report within a specified timeframe."

See SHORT video on the story by https://www.christian.org.uk/news/euthanasia-bill-stalls-in-irish-parliament/

This success story from those opposing euthanasia in Ireland shows the vital importance of opposition from all sections of society - medical, legal, storytelling, faith based, disability- based opposition.   All groups can highlight that euthanasia is patient killing and reiterate effects of euthanasia on the vulnerable. The lack of safeguards in this bill were identified by those given the responsibility of scrutinising the bill and were a key factor in showing that euthanasia can never be made safe. 

Note: Gino Kenny TD plans to introduce an amended bill in the future.

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