Melissa K. Sweeting-Percentie Copyright 2010


The purpose of this article is to lend clarity to the Bahamian Church as to what is meant by the term ´human rightsµ when we think of the transcontinental debate going on most notably in the European courts and made universally popular by such groups as Amnesty International. What determines the issues the Church will address at any given time? The answer is relevance. In the 1800·s in Britain and parts of the United States, the issue was abolitionism. One century later in the west it was the issue of the suffragettes. When World War II loomed, it was fascism and the subsequent genocide committed by the Nazis. In the modern western church stateside, we hear of debates on abortion, absence of prayer in the schools, divorce, opposition to big government, opposition to stem cell research, opposition to liberal sex education in the schools, protest at the removal of public symbols of Christianity such as the Ten Commandments and nativity scenes. In The Bahamas, recent issues have been on the legalization of gambling and on the legal definition of rape within marriage. The purpose of this article is to explain how tenuous is the debate on human rights from a ´morality standpointµ and how the historic position of nationhood is valuable to oppose certain issues while supporting other causes. This requires a deepened knowledge of how the law is operating most especially in the European Union and how this has affected lawmaking in the United Kingdom, from whom we have inherited a model of government and the courts, a model which is presently under siege or at the very least a model which is being overturned and replaced with something new. Some years ago, the Hon. Perry G. Christie made the suggestion while he was Prime Minister that Bahamian students studying law should go into ´Public Law.µ His idea might have been the great need for judicial review of government decisions and the need for stronger voices to protect the sacred tenet of our system: the separation of powers. At that time I had begun my legal studies and was burrowing into the public and administrative law textbook, also known as ´Constitutional Law.µ What I found there leads to my suggestion: namely, that every Bahamian church picks its brightest scholars and immerses them in the study of Constitutional Law. It is the richness of the landscape of this ancient system we have inherited which I believe must emphatically be preserved! I cannot emphasize enough the urgency. For nearly 40 years, the United Kingdom has been legislating under the shadow of integration with European Law by signing on to the European Communities Act 1972. For nearly 12 years, the United Kingdom has been constrained to rule on human rights issues directly under the authority of the Human Rights Act 1998. And, it is the decided opinion of some of the most brilliant legal minds, that some of the nuggets of antiquity are at risk of being washed away. Ironically, perhaps, these voices span both the conservative and the liberal landscape in that country.

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Meanwhile, many of the younger generation applaud these changes as a welcome deliverance from the traditional prejudices and oppressions against women, minorities and obscure religious or ethnic groups. The European Union presents us with the most authoritative model of a New World Order that we have seen or heard about since The Roman Empire. And while it was created, supposedly, to bring together all the raw materials of war after World War II, to avoid another great war of bloodshed, peril and destruction when the weapons of war had become so formidable, there are some commentators who have expressed need for the legislators in the Commonwealth of Nations to give pause before ancient rights, hard-fought rights and complex understandings are labeled with one brush stroke, that colour being One World Order. It is my hope that I have the patience, discipline and care required to compress a mass of material to you in a format that is helpful, readable, fair and most of all gives praise to our Lord who has brought us thus far, who has brought us a mighty long way and whose name must be continually raised up on the earth.

WHERE DO WE BEGIN? For the Bahamian Church, I suggest we begin with the most simplistic approach: our understanding of what it means to have a constitution and how this is different in the UK. We also need to know that the law happens in more than one place in the Westminster system that we inherited from Britain, a country whose constitutional position is very different than our own but whose court structure we have inherited in what we call the ´common law.µ First of all, the United Kingdom is considered by many Bahamians as the Motherland. ´Queen Victoria freed the slaves,µ and the Creole ship had to surrender their passengers that were considered by the Americans to be mere chattel as against British reform for abolition. But the United Kingdom does not have a written Constitution. Nor do Israel or New Zealand. Being a country with an unwritten constitution means that issues of constitutional merit (relationship of the individual to the state, role of institutions, separation of powers, etc.) are to be found intermittently where an Act of Parliament defines them. How important are Acts of Parliament (also called statutes/statutory law)? Acts of Parliament in the British system take priority over court decisions/judge-made decisions/common law decisions. So, where the court (in an upper court, the House of Lords) made a decision to award compensation for property loss in the case Burmah Oil v. Lord Advocate (1965)1, the British Parliament wheeled around and swiftly moved to pass the War Damage Act 19652 to break that pattern (of getting $$ out of government for war damage) from happening. Overnight, the decision of the judges that had created one law (that government must compensate such and such a company for damage which occurred in the war), now changed into another law (on the same exact issue) by the
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[1965] AC 75. See Barnett, 2004, pp 114-116. Page 2

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legislators when they passed an Act of Parliament. The British Parliament would not have passed the War Damage Act 1965 unless it was formulated in the minds of policymakers who had ultimate control over the assets of the country. That policy-creating group is known as the executive, also known as the Cabinet. Here, I am giving you the first treatment of the separation of powers: executive, judicial and legislative. It is at the crux of the constitutional debate when we are coming from a traditional, historical perspective of Westminster law. It is NOT at the crux of the European debate. In fact, experts are still looking long and hard to find a separation of powers structure built into the European model. Perhaps they cannot find it because it does not resemble what we understand as the separation of powers. So, we now look at what it means to have Acts of Parliament that contain constitutional matters. There is no hard and fast rule as to what makes an act constitutional but if it clearly defines the role of the individual to the state, or states the role of institutions of the state, or the relationship of those institutions to one another, it is a constitutional statute. Here is a leading speech from the case Thoburn v Sunderland City Council (2002)3 where Laws LJ illumines the issue of constitutional statutes which define the United Kingdom:We should recognize a hierarchy of Acts of Parliament: as it were ¶ordinary· statutes and ¶constitutional· statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of which we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely relatedf: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise [voting rights], the Human Rights Act 1998, the Scotland Act 1998 and the Government of Wales Act 1998. The European Communities Act clearly belongs to this family« So by now we can see that the United Kingdom has a carefully-crafted system in place which deals with constitutional matters and the separation of powers. Please look at the range of dates, noting that the above-listed statutes were created (from 1215 to 1998) and you get a clearer picture of the vibrancy of the constitution in the United Kingdom, that it is by no means static, always being changed based on the needs of the people. Note also the following facts4 for each statute: Magna Carta 1215: established a formal settlement between the Crown and the barons Bill of Rights 1689: marked a decided change in the balance of power, tipping distinctly from the Crown to the Parliament

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[2002] 1 CMLR 50. See Barnett, 2004, pp 19-25. Page 3

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Act of Settlement 1700: established further the independence of the judiciary, disallowing the Crown from firing judges helter-skelter European Communities Act 1972: changed the landscape of parliamentary sovereignty in the UK by accepting the European Court of Justice·s position that Community Law binds all Member States Human Rights Act 1998: declared all acts of UK policy must now be scrutinized as to whether they are compatible or not with Community Law

A GOOD PLACE TO PAUSE So, you may ask yourself. What is the big deal over these constitutional statutes? What are you trying to convey? Well, to begin with, from a Bahamian perspective, let·s look at the dates. In 1973, we were at Clifford Park, celebrating our independence. We were setting out into nationhood but we were in the framework of the Westminster model which, for all intents and purposes, posed no real problems for us. One year earlier, the British Parliament was in an uproar over the question of whether they should sign onto the European Communities Act 1972 (which we will scrutinize more closely later on in this article). Queen Elizabeth II reigned. Remarkably, a Conservative government was in power during the passing of the Act with Hon. Edward Heath as Prime Minister. There was quite a bit of furore between those who believed that Britain should join the European Community and those who differed. Attached are a number of pieces5 that show via BBC reporting that the issue was so large that it went to referendum. There was massive promotion for the pro-Europe side and the public voted for staying with the European Community with a majority vote of 67%. A close reading of the belowmentioned articles will show that public perceptions of the day in Britain (prior to the media advancements) were that the voices opposed were either left of center or right of center, not exactly extremists. Then the aggressive media campaign was launched and listen to what Lord McAlpine said about the strategy of the Yes Campaign of 1975, ¶The whole thrust of our campaign was to depict the anti-Marketeers as unreliable people ² dangerous people who would lead you down the wrong path.·6 The larger perspective here for the reader is to understand that while The Bahamas was achieving independence, the country whose system ours most closely resembled and on whose system we were constructed had itself moved to a new model, a seismic constitutional shift. Nothing I have read thus far in Bahamian literature has given the impression that the framers of our Constitution went to Britain in 1973 to do anything other than achieve our own independence. In other words, if there were brilliant Bahamian minds advanced against the Euro-scheme and determined to annex by symbolism to the American·s agenda, no mention of any significance has been discovered by me in my reading over the years. Google Search, BBC Home, On This Day (1950-2005) 26 April, 6 June/BBC News 4th June, 2005 6 Ibid, 4th June, 2005, p 2. Joining The Bahamian Discussion on Human Rights Law Page 4

Back to Britain, there is no doubt that although the European Communities Act 1972 could always be repealed through the doctrine of parliamentary sovereignty (that no Parliament can bind its successor), that would by no means represent a simplistic process of a new Parliament passing another Act. It would have massive constitutional and political implications. Also, there is no doubt that although the European Communities Act 1972 was passed as a local Act in the British Parliament, the European Court of Justice made it clear that Community law is supreme. Consider this extract from the Constitutional & Administrative Law textbook:The European Court of Justice (ECJ) adopts as its guiding principle the supremacy of the law of the Community. In the ECJ·s view, a new legal order has been founded, a sovereign legal order within its sphere of competence. The sovereignty of Community law must, according to the ECJ, be respected by Member States, because through accession to the European Community, Member States have ¶surrendered· their sovereign power in relation to those matters now regulated by the Community and Union.7

MONISM VS. DUALISM Let us stray for one brief moment to the idea of a pluralistic court environment and what that means. In present day American cities, you can find Hebrew courts presiding over issues of importance within the Orthodox Jewish community. In present day Canadian cities, you can find Muslim courts presiding over issues within the Islamic community. In present day European cities, you might find a Scientology court presiding over issues within the Scientology church. These are pluralistic court environments and these courts are supposed to ² in theory, at least and under the law ² operate subject to the laws of the land. But when we bring up the terms, ´monismµ and ´dualismµ here, we are looking at something else dealing with how a country expresses integration of INTERNATIONAL LAW within its NATIONAL LAW. France and Italy represent an example of the monist model in which once an international treaty is signed, it is assumed to take form within the national laws without any formal statutory acts, and is even assumed to take precedence OVER national law.8 Imagine then, the difference in outlook within such countries to give international law precedence over and above the evolved laws of their own people! The United Kingdom represents a dualist model and as such the signing of the EC Treaties had no foundation in British law until the British Parliament enacted the European Communities Act, 1972, thereby giving the Treaties effect under British law.9 We must always keep in mind that Europe has signed and ratified one treaty after another attached to the wider reasoning and succinct objective of a European community.

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See Barnett, 2004, pg 194. See Barnett, 2004, p 255. 9 Ibid, p 255. Joining The Bahamian Discussion on Human Rights Law Page 5

THE STRUCTURE OF THE EUROPEAN COMMUNITIES ACT 1972 (ECA) The primary clauses in the ECA are as follows: S. 2(1) ´«and the expression ¶enforceable Community right· and similar expressions shall be read as referring to one to which this sub-section applies.µ10 S. 2(4) ´«any enactment passed or to be passed, other than one contained in this part of the Act, shall be construed to have effect subject to the foregoing provisions of this section.µ11 The most dramatic and successful outcome of enforcing Community law where it bucks any local (national) laws coming first out of the United Kingdom·s Parliament is now typically handled like this: Where provisions of Community law have direct or indirect effect, the individual citizen of that state has a right of redress against the Member State, or against bodies which the ECJ deems to be ¶emanations of the state·, and, under certain circumstances, the right to compensation from the state.12

SLIDING INTO EUROPE·S SLIPPERY SLOPE When I first began reading about the role of European law in the United Kingdom, I asked myself what the public opinion reaction level must have been like at the time. After all, I thought of Britain as the land of Winston Churchill, the land of democrats that won the moral war against Hitler, the land of intellectuals who joined hands physically to back up their national ideals. What I found was somewhat surprising. Current headlines on my Google Search returned with such descriptive modern bylines as ´How They Swung it in the early 70·s,µ and ´How Britain First Fell for Europe,µ while the headlines of that time, naturally, were more matter-of-fact as they did not have the benefit as we do of hindsight: ´1975: Labour votes to leave EECµ and ´1975: UK embraces Europe in referendum.µ I read the articles carefully and what follows is the overall influence that I carried away. In today·s context, some writers are asserting that the CIA funded the pro-European Movement, ´and they the Conservatives and the Foreign Office did squeeze the BBC.µ Now, when we think of the BBC we think of more responsible journalism than today·s cable-style American television. However, a less savoury view of the BBC style of reporting came into Calvary Bible Church via a former Muslim who is now a Christian missionary in the war torn regions of the East. He told a small Sunday School group that the BBC·s techniques today in Muslim territories is to give dominant coverage to people who are not in and of the neighborhoods they are covering. They tend to advance the
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Ibid, p 193 Ibid. 12 Ibid, p 194. Joining The Bahamian Discussion on Human Rights Law Page 6

voices of people who have a lofty (or more remote) view of certain neighborhoods. What the BBC was like in 1975, though, in Britain, I could hardly speculate. We can look at the influence that ZNS has in The Bahamas and project from there an idea of what force the BBC might have had in 1970·s Britain. An article from Global Britain Publications carries on an interview with one Geoffrey Tucker (advertising guru for the Conservatives), Lord Hattersley (pro-European for labour), Dr. Richard Aldrich (modern historian) and even a former PM of the UK, Sir Edward Heath. He presided over this time of change. Geoffrey Tucker admits that when they found out that a certain radio personality was not going to shake his antiEurope ideas, Tucker complained in private to Ian Trethowan (managing director at BBC Radio), they went ahead and pressured Trethowan; he relented and fired this radio personality who was keeping to his own ideas.13 Then, Lord Hattersley, on the same subject of Ian Trethowan·s role in managing the BBC radio, admits that he went to one meeting and certain pro-European people brought to the attention of Trethowan, ´broadcasters who they thought had been anti-European, and asked him to do something about it«It sound terribly prissy, but it really did shock me at the time and, frankly, remembering it shocks me still.µ14 In order for those of us living here in The Bahamas to understand the flurry of activity that went into Britain accepting the European deal, we must look a bit closely at the players. I have mentioned Ian Trethowan of the BBC. Another major player was Geoffrey Tucker who ran the publicity machine to push the Common Market. For him, luncheon meetings were a favourite, with a co-mingling of guests and important figures. It is widely believed that his father·s suicide eventually led him to major in psychology. He was said to be very good at keeping friends and though ´not well known outside of Whitehall and Westminster, Tucker was a far more effective operator than many of his younger, and better-known, competitors.µ15 The claims that when he was hired to push Sir Edward Heath as a more approachable candidate to voters, Tucker used three methods: one, he played certain media figures closely (well, that·s nothing new); two, he created a spurt of party politics shows which were broadcast and targeted young housewives; three, he came right out and admitted to friends that he acquired ´the services of a mole at Labour·s headquarters in Transport House.µ16 Well, I guess that·s nothing new either but it shows the level of excitement expressed by Geoffrey Tucker in his method. Some three years later he was appointed by Sir Edward Heath to run the pro-Europe publicity campaign. I have mentioned earlier in this article that the ´anti-Marketeersµ were depicted as ´unreliable peopleµ. The issue went to referendum in 1975. Should Britain remain a member of the European Community? A closer look at that time period shows us a young Tony Blair as in the No campaign with Margaret Thatcher then in the Yes campaign. The issue was so politically scalding that the then Prime Minister Harold Wilson allowed Cabinet ministers to campaign according to their consciences. In other words, How they Swung it in the early 70 s, Global Britain Publications. Vol. 5 No. 12. Ibid. 15 16 Jan 2003. Geoffrey Tucker. 16 Ibid.
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for a few short political moments, the political whip of collective responsibility to concur was temporarily lifted like the Veil in the Temple. Nearly 68% of the British public voted to stay within the Union. Prior to the media hype of the Yes campaign, almost 2/3 of Brits wanted to get out of the European Common Market but by the time the campaign was ended, those figures were reversed (with 2/3 wanting to stay in).17 As mentioned before, all the press was proEurope: Murdoch·s Sun, Daily Mail, Daily Telegraph. Tony Benn an outspoken personality fighting for the No campaign said in a conversation with journalist Michael Cockerell, ´·If you haven·t got a single newspaper supporting you, you don·t expect good coverage...It·s quite straightforward-nothing strange about it.·µ18 Indeed, a dramatically energized press can affect public opinion enormously. Margaret Thatcher came out in a specially knitted sweater with all the flags of Europe covering her bosom and called for a vote for Europe. Looking at things since then Tony Benn said in his 2005 interview with Cockerell that both Margaret Thatcher and Rupert Murdoch agree with him on Europe.19 That·s all well and good. But a lot has happened since then, including the Factortame case.

THE FACTORTAME CASE After the British acceded to the European Communities Act 1972 the primary issues arose within the court context. Top judicial personnel were forced to examine British jurisprudence alongside Community Law. Where there was potential ´harmonizationµ of the laws, they, the judges, were responsible to make such recommendations. From there, it was the duty of Parliament to pass laws which brought British law into harmonization with EC Law. The issues which faced the judges and Parliament were many and varied but all over Europe, individuals were taking their home State before the European Court of Justice where there were perceived injustices in the realm of human rights. The British citizenry went along with this with perhaps the odd academic murmur or the odd judicial protest here or there. But they knew this system was already set in stone. There was no turning back as the European Communities Act 1972 was clearly established as a constitutional statute, not easily overturned or changed. The period from 1972 onwards was an acculturization period for the British, by some accounts. Approaching the early 90·s, there was a great movement in Europe to push for one united constitution for the European Community and to hurry up and get the common currency in place, plans for which had been talked about for so long. How Britain first fell for Europe. Saturday, 4 June 2005. Michael Cockerell, BBC News. 18 Ibid. 19 Ibid. Joining The Bahamian Discussion on Human Rights Law Page 8

In the Annual Review of the All England Law Reports, Robert Grime says of the Factortame case that it began with litigation in 1988 ´with an application for judicial review of a number of decisions of the Secretary of State for Transport as evidenced by the Merchant Shipping (Registration of Shipping Vessels) Regulations,µ and the big issue was whether the British government was setting too-stringent regulations for fishing vessels which were to be listed on their shipping register. Conditions such as the requirement that ´a fishing vessel, in order to be registered as a British fishing vessel, had to be beneficially owned by at least 75% ¶qualified persons·µ apparently did not sit well with the largely-Spanish interests who ´had acquired British registered fishing vessels or who worked through companies registered and operating in the UK and had registered the vessels belonging to those companies on the British Fishing Vessel Register.µ 20 According to Grime, ¶qualified persons· meant ´British citizens resident and domiciled in the UKµ while a ¶qualified company· meant ´a company incorporated and with its principal place of business in the UK as well as having 75% of shareholders and directors being ¶qualified persons·.µ21 Grime makes the careful observation that in cases of very long residence, the stringent requirements for residency could be waived, so it can be argued that there was some discretion locally in the UK to the tone of the regulations.22 The Community, however, was pressing on to make universal fishing a common right of its citizens. Whereas traditionally there had been protections in place and strict quotas on fishing grounds in such places as the ´Irish Box.µ When the Prime Minister, John Major, went to the usual European summit, he reported that it was mercifully free of its usual wrangles. He is recorded in Hansard (the official record of Parliament) according to authors Booker & North in Chapter 16, ´Odd Man Outµ, as observing at the time that the Act of Accession of Spain & Portugal contained only ´an opaque passage on fisheriesµ with ´no great changeµ that should be of any concern.23 Booker and North assert that PM John Major had no clue that a major embarrassment, a political nightmare, was about to ensue. Soon thereafter, Spain demands that they be allowed to bring in 220 vessels. Hansard contains evidence according to Booker and North that Fisheries Minister William Waldegrave has to allow in 40 vessels. They turn out to be super-commercial, larger than the capacity of Irish and Cornish fleets combined.24 Then William Waldegrave announces that £53 million will go to compensate British fishermen for ¶de-commissioning· their boats. As Booker and North put it, ´at the expense of British taxpayers, several hundred more British fishermen would be bribed to go out of business.µ25

LexisNexis Search, 1999 Shipping Law, All England Annual Review, Robert P. Grime, BA, BCL, pg.1, par.5 21 ibid. 22 ibid. 23 The Great Deception: can the European Union survive? By Christopher Booker, Richard North, pg. 389 24 ibid. 25 ibid, pg. 390 Joining The Bahamian Discussion on Human Rights Law Page 9


The British public went into an uproar but there was little they could do. This was EC Law in reality. Despite the benefits of joining the European Community, Douglas Hurd conceded that ´often it is the image of a remote, interfering and wasteful EU.µ26 Many critics had drawn parallels to the EU methodology with a large, collectivist organism where there is much waste and misappropriation of funds because the centralization of power into Europe often resulted in poorly made decisions and in a new manner of governing that was unfamiliar to the population of member states. Some examples of such waste are funds allotted to butterfly parks, golfing video creation, steam engine utilization (closed down), traffic repairs needed but blocked by bureaucratic stipulations.27 Sometimes an apparently sensible Directive would result with a silly outcome. Example? Directive 93/10/EEC allowed doctors from Spain and Greece with no English skills to enjoy a waiver of the usual compulsory language tests while doctors from Commonwealth countries speaking the same language as UK doctors, English, such as those from New Zealand, would be subjected to mandatory language tests!28 At any rate, citizens of the UK began to experience a definitive shift in the manner of their government. The 1995 ruling in the Factortame case from the European Court of Justice came back that, ´[h]aving been disbarred by the Merchant Shipping Act from fishing for 18 months, the court held that the Spanish ¶flag-boat· companies were now eligible for compensation from the UK government.µ29 The British taxpayers got a bill wrapped in oily paper for a cool £100 million. This ruling was politically cruel on two accounts depending on who was discussing it: on a social level, everybody knew that Spain was bullying and stealing fish supplies from the Newfoundland fishing grounds which was revealed by their secret freezers and undersized fish found and revealed in the Estai case, (according to Booker and North it was reported in the Daily Telegraph of 5 April 1995).30 On a judicial level, as Grime explains, a precedent was held in the Muscat Dhows Case of 1905 where, ´the Permanent Court of Arbitration affirmed the right of states to decide upon the question of conditions of registration of ships on its own flag«[t]his right in international law is not only firmly established and well recognized, it is enthusiastically and widely exercised.µ 31 And Grime asks the question: ´Is the Muscat Dhows Case good law in the European Union at all?µ32 What the Factortame case demonstrates is how established notions of commerce can be, and have been, shaken up by the EU Law. Even established notions of the authority of case law are often shaken up by new cases under the influence of EU jurisdiction. Next, ibid. ibid, 388 28 ibid, 395 29 ibid. 30 ibid, 392 31 Annual Review All England Law Reports, ibid. pg. 2, par.1 32 ibid, par.4
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we will look at a case that the average person would think was a straightforward ¶moral· issue, as an example of what the Bahamian church must scrutinize if we are to be in any way prepared for the changing times facing us in jurisprudence off our shores.

´DUST IN THE WIND?µ One issue that reveals the changing mindset in today·s Britain under the umbrella of European law is that of assisted suicide. Scores of British citizens have taken the liberty of traveling to Switzerland where assisted suicide is legal to end their own lives, most notably at the Dignitas clinic. It has become so widespread that a number of British citizens have taken their legal plight before the courts. Just what is their legal plight? Namely this: they wish to know whether their loved ones who accompany them out of the jurisdiction to assisted suicide in other locales will be immune from prosecution. It might seem that this is a silly request but before the law it is far from silly. Under local British law up until recently, the Suicide Act 1961 in section 2(1) made it an offense for anyone to assist another to commit suicide. The catch was that in section 2(4) options to investigate these deaths with a view to prosecution was left to the discretion of the Director of Public Prosecutions (DPP). The further catch was that in light of the increasing numbers of people traveling to Dignitas and the quite random results of those who might be prosecuted, it was now coming before the court to say, look, these certain people who assisted are being investigated while those certain people who assisted are not being investigated. What·s the deal? The further and even further catch was that in one of these newer cases before the European Court of Justice asking ¶what·s the deal· on assisted suicide and clarity on who would be prosecuted (or not) in the UK, the Strasbourg court was indeed asserting that the UK Act presented an ´interferenceµ with right to privacy and so forth under Article 8 of the European Convention on Human Rights. These two paragraphs are my words, my very succinct summary of what is recorded in the most recent case R (on the application of Purdy) (Appellant) v Director of Public Prosecutions (Respondent) [2009] UKHL 45. This case was an appeal to the House of Lords. The House of Lords deals with issues of law of public importance in the UK. Ms. Purdy had exhausted her remedies in the courts below in attempting to push for the DPP to give clear guidelines on who would or would not be prosecuted in the assisting of suicide. Her case was specific to seeking the relevant guidelines as she would be going abroad to end her own life with dignity. In the case before hers involving one Ms. Pretty and asking for virtually the same guidelines, the difference was that in Ms. Pretty·s case she had planned to end her life at home in the UK and the 1961 Act clearly stated that to abet and assist in the suicide of another is a criminal act. The judges were torn between how to treat the issue of jurisdiction (what rules applied in Purdy·s case where she was going abroad with her partner, Mr. Puente, to complete this act. The judges were also torn on how to treat the special quality of the legal issue where in the Suicide Act 1961, committing suicide was decriminalized (and therefore not the primary act) while aiding and abetting under the Act was criminal. In almost every Joining The Bahamian Discussion on Human Rights Law Page 11

other case, aiding and abetting was a secondary act but here in the Suicide Act, aiding and abetting became the primary act in the absence of the suicide itself being the primary act under the old laws. The old laws had been the 1861 Accessories and Abettors Act and suicide pacts fell under the 1957 Homicide Act. Also in recent years there had been the Criminal Attempts Act. The key here in Purdy v DPP [2009] UKHL 45 was the overwhelming agreement within the House of Lords by all the judges that the Strasbourg court ruling in Pretty v UK had unswervingly changed the way the courts could view whether there had been an interference with Article 8 rights under the Convention. Note, taken alone, the domestic law of the UK was pretty straightforward as explained by Lord Neuberger in par. 93:The natural meaning of the stark and simple language of section 2(1) of the 1961 Act, even bearing in mind the important principle of territoriality, seems to me to be that, provided the assisting occurs within the jurisdiction, the section is satisfied. This view appeared to be reinforced by the fact that, if it were otherwise, the section could be avoided simply by ensuring that the suicide is committed, for example, in Scotland or on the high seas. Section 2(1) of the 1961 Act defines a crime, and should therefore, I accept, be construed in a narrow sense rather than a wide one, at least in case of doubt. Nonetheless, it would plainly be wrong to adopt an unrealistically restrictive and artificially technical meaning when the meaning so far assumed to be correct accords with the natural sense of the words used by the legislature and with the plain legislative purpose. It would be a mistake to imagine that the richness and texture of the judges· many discussions and ideas can be condensed into the above quotation! However, this is one of the starting points for the judges in recognizing the relative simplicity of the domestic law. But they had to take into account the Strasbourg ruling and so had to all admit that Ms. Purdy did not have clear guidelines as to whether her partner would be immune from prosecution. Even though prosecution would not automatically result from the assisted suicide (whether at home or abroad), the Director·s guidelines were listed in ´The Code of Crown Prosecutors.µ However, Ms. Purdy argued that she was none the wiser on their application after the assisted suicide (and related report made by the DPP) that followed the death of the famous British rugby player, Daniel James, a young man paralyzed from a sporting accident who had persuaded his tortured parents to accompany him to Dignitas and there allow him to end his days in dignity. This they did and the public debate raged on and accelerated in the United Kingdom. There were groups representing the lives of Unborn Children, groups representing those with Multiple Sclerosis, groups representing law advocacy and so forth. Opinions varied, of course. Some said that people would only have to ´Googleµ assisted suicide and there come to a decision, hardly informed. Some criticized that this would put the realm of assisted suicide into the hands of the many and out of the hands of informed doctors who should know more as to what type of patients qualified for this option. Some members of Parliament warned about the risk to the vulnerable by those who might no longer want to care for them, or who might want to benefit financially from their death. Whatever the case, the rising numbers of those choosing assisted suicide ¶normalized· the issue in the British consciousness. And, as Ms. Purdy commented after Joining The Bahamian Discussion on Human Rights Law Page 12

the following guidelines were published this year, following a modernization of the topic in the Coroners and Justice Act 2009, ´Keir Stermer and the CPS have done the best they can in bringing the 1961 Suicide Act [up to date, and] how it will be interpreted in the 21st century«It·s 50 years old, we live in a different world. We need a law that is appropriate for the 21st century world.µ33 What the Coroners and Justice Act 2009 did was to modernize the offence 34by sewing together the criminality of assisting with the criminality of attempting and the newfound challenges of the online factor where people in cyberspace could cause another person through persuasion to commit suicide! Such is the world in which we live. In the final analysis, the House of Lords decision in Purdy resulted in the Director of Public Prosecutions coming out with first Interim Guidelines and then just a few months ago, the latest list of Guidelines to clarify the rules on assisted suicide. This has resulted in ´six mitigating factors against an individual being prosecuted for assisting the suicide of another«also 16 public interest factors in favour of prosecution.µ35 The focus of the new policy on assisted suicide focuses on the suspect·s motives rather than on the victim·s intentions. And here is the list of the six factors that would cause the DPP to hesitate to prosecute the person who assisted the victim at ending her or his own life:1. The victim had reached a voluntary, clear, settled and informed decision to commit suicide. 2. The suspect was wholly motivated by compassion. 3. The actions of the suspect although sufficient to come within the definition of the crime, were of only minor encouragement or assistance. 4. The suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide. 5. The actions of the suspect may be characterized as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide. 6. The suspect reported the victim·s suicide to the police and fully assisted them in their enquiries into the circumstances.36 So the outcome of the case has been to apply pressure to the UK government to clarify the law on assisted suicide. As was made clear in the case itself, what counts for law in the UK is open to a very wide berth:Ms. Purdy does not ask that her husband be given a guarantee of immunity from prosecution. An exception of that kind [as her counsel has accepted] would be a matter for Parliament. What she seeks is information«.Other cases appear to Guardian News and Media Limited 2010, Assisted Suicide Guidelines: family can still face prosecution. Sandra Laville, Thursday, 25 Feb/2010. 34 Ministry of Justice Website, Amendments to Section 2 of the Suicide Act. 35 Ibid. 36 Ibid. Joining The Bahamian Discussion on Human Rights Law Page 13

have been discontinued by the police on public interest grounds. Here too no reasons for the decisions that have been taken are available«Ms. Purdy·s request for information is to be seen in the light of that background«she wants to be able to make an informed decision«.37

CONCLUSION When we think, therefore, of operating within the Westminster system of government and we contemplate the lush beauty of the common law which has been passed on to us for our stewardship, the Bahamian church must be aware that the rules have changed. It is a little more than just dinner-party-banter on ´globalization.µ We will have to recognize that virtually any value will be channeled into the court systems abroad under the auspices of human rights and judgments made by the court will result in the Parliament amending their Acts. Following that, a myriad of secondary legislation and government regulations will spread throughout the society like dye in water. Society is very much affected by its laws. Bear in mind that the Law Lords had no alternative but to follow the laws of the land, namely the criteria for compatibility with European jurisprudence that was incorporated into their own UK law by way of the European Communities Act 1972 and the more recent Human Rights Act 1998. Another very complex legal consideration (for those of you who have legal training) is the effect on the case law that will boomerang into the common law system by decisions made in Scotland, Wales and North Ireland when the 1998 Acts were passed giving them devolved powers. Under the present system, what happens when a pregnant women under pains of a terminal illness decides to end her life via assisted suicide? Can she bring her case before the courts under the auspices of right to privacy and Article 8 protections? Even if the court defers the matter, can she press on ´for informationµ and eventually get the right to end her own life with her child growing within her? Yes, this is a deliberately sensational example, but it points the way as to the world in which we live. A mother would be unlikely to kill herself before giving birth, but who is to say that the courts would not give her the right, the option? It is unlikely, in my humble opinion, that the Christian Church will survive another 50 years as recognizable to itself unless an aggressive legal campaign is undertaken by its brightest minds! And this is not to go on Crusades which ´downpressµ the people! Ms. Purdy brought her case to the courts because she was suffering from a very cruel illness, she knew that suicide was no longer illegal, and could truly anticipate dark, dreaded days ahead with inability to breathe properly and loss of all faculties. These are very complex and tragic issues which the church must address with all compassion. It must not send out fools to fight these battles.

R (on the Application of Purdy) v DPP [2009] UKHL 45, pars. 30, 31. The Judgment of Lord Hope of Craighead. Joining The Bahamian Discussion on Human Rights Law Page 14


HOPE FOR THE WORLD The world needs hope. Hope that the law can protect the downtrodden from injustice and that it can operate in all its forms: as shield, as sword, as edifice, as instrument of policy. No government can further the progress of society without good laws. What is needed now, I believe, is a return to commonsense. It is clear that Europe is only 60 years past a very tumultuous series of wars. Yes, they might have decided after World War II that they wanted to bundle up all the weapons and materials of war into one collective body. But is that the best route for every country, to join them? What are the prescribed values of Europe for countries who still purport to a loyalty, and ´abidingµ commitment to Christian values? What do Christian values mean in today·s world to the Christian? What does this mean to the secular world? What does it mean for the world to be secular? There are very religious societies our there who far from considering themselves to be secular, would vehemently disagree with the Christian outlook! Can the church roll on? It must! It absolutely must! One suggestion would be for Christians to bring their own cases in the UK before the European Court of Justice so that different voices may be heard. There is no disputing that an alternative jurisprudence is growing out of the European courts. Many of the cases deal with issues of sexuality, issues of employment and labour rights, issues of rights to express religious freedom. Perhaps the Christians must assert their values and help the secular world to hear an identifiable voice. Another suggestion would be for the Commonwealth of Nations to be strengthened and to arrange a careful study of its case law which has guarded carefully decisions made in domestic courts, guarding the principles of the common law and protecting the people in those nations within a local concept from the all-powerful tentacles of globalization which would destroy in some cases the memory of the people of their shared history! I have noted in my reading of the law textbooks, a prevailing theme from the scholars that there is a growing international legal power, virtually invisible to the uninformed. In some cases it is in the realm of the judges but here look at another angle:The movement of students from one jurisdiction to another, for postgraduate legal studies (such as the Masters in Law) in particular, offers one piece of the picture of an emerging legal culture for the globalization of law, towards the development and solidification of a transnational legal culture. Ideas, texts, bites of knowledge, will float and be transmitted and used in settlings far from the locality of the utter.38 The church will need to become one of these important voices in law and when the laws are written for a country, let it be as Lord Justice Shaw suggested in the case of Davis v. Johnson:-

Gearey, Morrison & Jago, The Politics of the Common Law. 2009 by RoutledgeCavendish. Joining The Bahamian Discussion on Human Rights Law Page 15


The construction of a statute dealing with a morbid aspect of society must, it seems to me, be pursued in the practical context of the evil sought to be remedied rather than with analytical detachment.39 Of course, there are those in this world who do not believe that evil exists, even when they hear of stories like a cannibal enticing another cannibal online. But like I tell those sorts of people, if you have a problem with admitting to the concept of evil because of the way this world has evolved in political correctness (on the left and on the right), just take the analogy of the real estate agent. She has been asked to go to a property, enter the structure and give it an assessment. If you can·t deal with evil as a concept, stick to assessment and you can make your way forward! What would I ask of the Bahamian church? I would ask that a study of the law be undertaken and that bright minds on all sides of the debate be encouraged to dig into history, to excavate the cases, to assess the evolution of the law, to embrace the Commonwealth, to push publishing over sound-bites. We should leave something for posterity to remember us by here in The Bahamas and avoid settling for ideas to be floated around on the airwaves only. There is too little scholarship. And the stakes are higher than they have ever been before. Psalm 11:7 ´For the Lord is righteous, he loves justice; upright men will see his face.µ

Melissa K. Sweeting-Percentie, is a student of the University of London and has a long history with the Church. She has a passion for Creative Art, Social Justice, and business. She is the mother of two daughters, Hannah and Omega.

For further information on all articles provided by Melissa Sweeting - Percentie, you may contact her via email her at or visit for further inquiry.


Davis v. Johnson [1974] 876a Page 16

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