Thursday 1 July 2010

Professor John Finnis is misrepresented in Catholic Herald interview

Earlier this week I blogged on what I called a "flawed account" from Archbishop Peter Smith on the pro-life battle over the Mental Capacity Act and its outcome in an interview published in The Catholic Herald.

Here's a message I've since received from John Finnis (pictured), professor of law and legal philosophy, at University College, Oxford University. He writes:
Dear Mr Smeaton,

Many of the points you make about the bad features and likely bad effects of the Mental Capacity Act 2005 are quite justified. I would just like to say that the interview which attracted your comment was mistaken in saying that I drafted the "not motivated by a desire" clause. (I don't know whether the mistake is the interviewer's or interviewee's.)

The only clause I drafted was one in terms of "a purpose of bringing about death", which would have been even stronger than the one you favour in terms of "intention". Amendments in my terms were voted down by the Government's supporters in Parliament, in both Houses, and instead the Commons inserted a wholly unsatisfactory Government-drafted clause known as the "Howarth amendment". Archbishop Smith and I jointly protested about this, and the Government came up with its final offer -- the "motivated by a desire" clause now in the Act. Though dismayed from the outset by this formula, I discovered that in other legal contexts the phrase "motivated by a desire" has been interpreted in the courts as equivalent to "intention". So I advised the Archbishop that this was better than nothing, and that if properly interpreted by a careful court it would be positively useful -- though if loosely interpreted it would be virtually useless. At no point did Archbishop Smith cease to favour the adoption of a "purpose" amendment in preference to the Government-imposed "motivated by a desire".

In my article "The Mental Capacity Act 2005: Some Ethical and Legal Issues" in Helen Watt (ed.), Incapacity and Care (Linacre Centre, 2009) 95-105 I cite (p. 101) the relevant legal precedents for a proper interpretation of the clause, and I hope that when the time comes counsel -- perhaps instructed by SPUC -- will deploy them, and to good effect.

At p. 99 I say that "it is seriously defective legislation, and I would, I think, have voted against it" had I been a member of Parliament. (The issue is not utterly straightforward, since the legal and practical situation before the Act was also deeply unsatisfactory and in danger of getting very much worse quite quickly.)

It would be quite unhistorical, and a shame from my point of view, if your phrase "the Finnis amendment" caught on.

Best regards,

John Finnis
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