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 rights” 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 standpoint” 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.” 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.” 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.”
First of all, the United Kingdom is considered by many Bahamians as the Motherland.
“Queen Victoria freed the slaves,” 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
legislators when they passed an Act of Parliament. The British Parliament would not
1
[1965] AC 75.
2
See Barnett, 2004, pp 114-116.
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have passed the War Damage Act 1965 unless it was formulated in the minds of policy-
makers 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
Act of Settlement 1700: established further the independence of the judiciary,
disallowing the Crown from firing judges helter-skelter

3
[2002] 1 CMLR 50.
4
See Barnett, 2004, pp 19-25.
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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 pieces 5 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 below-
mentioned 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 –
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.
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
5
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.
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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 – in theory, at least and under the law – operate subject to the laws of the
land. But when we bring up the terms, “monism” and “dualism” 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.
THE STRUCTURE OF THE EUROPEAN COMMUNITIES ACT 1972 (ECA)
The primary clauses in the ECA are as follows:

7
See Barnett, 2004, pg 194.
8
See Barnett, 2004, p 255.
9
Ibid, p 255.
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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.”10
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.”11
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,” and “How Britain First Fell for Europe,” 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 EEC” and “1975: UK
embraces Europe in referendum.” 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.”
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
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.

10
Ibid, p 193
11
Ibid.
12
Ibid, p 194.
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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 anti-
Europe 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.”14
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.”15 The Telegraph.co.uk 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.” 16 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-Marketeers” were depicted as
“unreliable people”. 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, 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.

13
How they Swung it in the early 70’s, Global Britain Publications. Vol. 5 No. 12.
14
Ibid.
15
Telegraph.co.uk. 16 Jan 2003. “Geoffrey Tucker.”
16
Ibid.
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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 pro-
Europe: 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.’”18
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 “harmonization” 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.
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,” and the big issue

17
“How Britain first fell for Europe.” Saturday, 4 June 2005. Michael Cockerell, BBC
News.
18
Ibid.
19
Ibid.
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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’” 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.” 20
According to Grime, ‘qualified persons’ meant “British citizens resident and domiciled in
the UK” 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’.”21 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.” 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 Out”, as observing at the time that the
Act of Accession of Spain & Portugal contained only “an opaque passage on fisheries”
with “no great change” 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.”25
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.” 26 Many
20
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
26
ibid.
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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.”29 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.” 31 And
Grime asks the question: “Is the Muscat Dhows Case good law in the European Union at
all?”32
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,
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.

27
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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“DUST IN THE WIND?”
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 “interference” 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 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

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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.” 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 “Google” 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 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 21 st century…It’s 50
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years old, we live in a different world. We need a law that is appropriate for the 21 st
century world.”33 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.”35
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
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

33
Guardian.co.uk. 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.
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 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.” 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 information” 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 “downpress” 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.
HOPE FOR THE WORLD

37
R (on the Application of Purdy) v DPP [2009] UKHL 45, pars. 30, 31. The Judgment
of Lord Hope of Craighead.
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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 “abiding”
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:-

38
Gearey, Morrison & Jago, “The Politics of the Common Law. 2009 by Routledge-
Cavendish.
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 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.”

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 mellaw1970@hotmail.com or visit www.lexjustis.com for further inquiry.

39
Davis v. Johnson [1974] 876a
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