Assisted dying: Expertification's next step in its long march through our constitution
My entry for the Times Law Awards 2025.
Hello readers, long time no speak! Back in February I entered the Times Law Awards. The prompt asked us to consider:
"Assisted dying – MPs have given it the provisional go-ahead, but how might the creation of what the justice secretary criticised as the state offering death as 'a service' change society's and the law's approach to death?"
Effectively, I argue that the assisted dying bill is the latest example of Britain's "expertification" – where important moral decisions are increasingly handed over to panels of unelected experts rather than remaining with elected officials or families. I show this by tracing how authority over death has gradually shifted from families to medical professionals, and how this mirrors similar expert-driven approaches across British governance.
I didn't win, but I still like what I wrote and wanted to share it. Quick disclaimer: I'm not 100% certain where I stand on assisted dying at this moment, so take everything with a pinch of salt.
Anyway, do read the full piece and let me know any thoughts in the comments.
‘Britain has had enough of experts.' Michael Gove's infamous Brexit declaration drew mockery, but beneath its populist veneer lay a deeper truth: the expertification of Britain. Over time, political decision-making has steadily migrated from elected officials to expert committees; this shift pervading every sphere, from monetary policy to matters of life and death. Now, with the proposed assisted dying bill, we see perhaps its most profound manifestation yet: the transformation of death itself into a service, where panels of lawyers, psychiatrists, and social workers act as its gatekeepers.
The watershed moment in the law's attitude towards death came with the Tony Bland case’s ruling that doctors had no duty to treat patients where medical opinion saw no benefit in continuing treatment: effectively, legalising passive euthanasia. Yet, it was not until the passing of the Mental Capacity Act 2005 that the current position was adopted. The effect today is that treatment may only be lawfully given to patients if it is in their best interests to do so. Implicit in this rule is an acceptance that it is not always in the best interest of patients to treat them, and thus some are left to die. The difficulty this raises is stark: when is death in a patient's best interests? This seemingly simple question conceals a profound shift in authority. While families might once have been the primary decision-makers, the law now vests this power primarily in medical experts. When disputes arise about withdrawing treatment, particularly in cases involving children, the courts have consistently deferred to clinical judgment.
The Assisted Dying Bill marks a continuation of this shift. Though the process begins with individual choice, it quickly becomes expert-governed: two doctors must approve, followed by a review panel of lawyers, psychiatrists and social workers. Yet the questions these experts face are deeply complex: When is an illness truly terminal? When is a decision genuinely free of coercion or pressure? How can we assess the capacity to choose death? Skilled doctors, and even judges, struggle with these assessments, yet the bill seeks to place it into a panel with only one member with legal training.
This transfer of power over death to experts reflects a broader pattern. From birth to death, our most intimate choices now require expert approval: abortion depends on two doctors' agreement, while NICE determines which treatments NHS patients may receive, regardless of their wishes. Expert control extends even further into daily life: nutritionists and food scientists shape dietary guidelines, content moderators filter our media consumption, and behavioural experts design 'nudges' to guide our choices toward officially approved options - all without direct democratic oversight. The Assisted Dying Bill thus represents not an innovation but the latest instance of a decades-long trend: the migration of decision-making from individuals and their elected representatives to unelected experts.
This trend is particularly pronounced in the legal sphere. Sentencing, once determined by the judge most familiar with each case, now follows extensive guidelines set by an independent sentencing committee with minimal parliamentary oversight. The result: sentences widely viewed as inadequate, with reform now only practically possible through legislation. Even judicial appointments, previously managed by the Lord Chancellor's Department within government, have migrated to an independent committee.
Yet it is in human rights law where this trend has become most pronounced, with significant portions of domestic policy now shaped by independent experts in Strasbourg. The Court's recent ruling on Swiss climate legislation offers a striking example: by declaring that democratically approved environmental measures violated the right to family life, the Court effectively substituted the judgment of international legal experts for that of Swiss voters who had explicitly rejected stricter proposals by referendum. Although not directly binding on the UK, this ruling exemplifies Strasbourg's expanding influence through increasingly creative interpretations of Convention rights. The effect is profound: governmental decision-making across areas from immigration to planning and welfare must consider compliance with international human rights law or risk judicial review, further transferring power from democratic institutions to expert bodies.
Yet the Assisted Dying Bill is far from the only signal that expertification is accelerating under the current government. The Budget Responsibility Act marks a dramatic expansion of expert power: where the Office for Budget Responsibility once merely analysed fiscal decisions after the fact, it will now hold an effective veto power over ministerial announcements of economic measures. This shift echoes across government: the proposed industrial strategy puts sector-specific expert councils at the heart of economic planning, while new environmental legislation empowers technical committees to set binding carbon budgets. Even local planning decisions face increased scrutiny from environmental experts under proposed reforms. Each initiative follows the same pattern: decisions once made by elected officials are increasingly subject to expert validation and control.
The assisted dying bill thus represents more than a change in how we manage death - it exemplifies a fundamental shift in how modern Britain approaches complex social questions. Where once such profound moral decisions were debated in Parliament and shaped by community values, they are increasingly reduced to technical assessments by expert panels.
The crucial question is not whether expert input has value - clearly it does - but whether we have struck the right balance. When decisions about life's end are determined primarily by technical criteria rather than moral deliberation, we risk losing something fundamental about how society approaches death. The state's offering of death as a 'service' may have merits, but it also marks a final step in the journey from death as a natural, family-centred event to one managed by professional experts according to standardized criteria. The merits of this trade-off must be considered by Parliament, and focus not just on whether assisted dying can be legalised without coercion, but also whether it is right to entrust the governance of this process to expert committees.