Scottish legislative consent correspondence published, Northern Ireland and Welsh legislative consent sought.Relevant documents: 32nd and 36th Reports from the Delegated Powers Committee, 12th Report from the Constitution Committee, Report from the Terminally Ill Adults (End of Life) Bill Committee.
My Lords, the noble Lord, Lord Shinkwin, will be taking part remotely. I remind the Committee that, unless they are leading a group, remote speakers speak first after the mover of the lead amendment in the group and may therefore speak to other amendments in a group ahead of the Members who have tabled them.
25: Clause 1, page 1, line 12, at end insert—
“(e) has had their application for assistance under section (Application for assistance with suicide order) approved by the Court,”
My Lords, I welcome what the noble and learned Lord has just said, which I am sure will be welcome to most Members of the Committee.
Amendment 25 stands in my name and those of my noble friend Lady Hollins and my noble and right reverend friend Lord Harries of Pentregarth. As is obvious, Amendment 25 is part of a large group. I apologise for the number of amendments and clause stand part notices in my name in the group. I was given excellent help by the Public Bill Office, and many of those amendments and clause stand part notices are simply designed to fit my proposals into the architecture of the Bill as it arrived in your Lordships’ House from the other place.
Amendment 25 is entirely dependent on Amendment 120, which is the key amendment in this group. That is also supported by my noble friends Lady Hollins and Lady O’Loan and my noble and right reverend friend Lord Harries of Pentregarth. I suggest that they are a formidable Cross-Bench group of medicine, the Church and the law, to which all will wish to pay close attention.
Amendment 120 sets out a matter of some principle which, if not conceded by the promoters, will have to be determined on Report. The conclusion on Amendment 120 reached on Report may well affect how some noble Lords will vote if there is a vote at Third Reading, because Amendment 120 is all about the safety of the proposed legislation.
Early in my remarks, I want to mention a very important point that may shorten the debate on this group. The promoters have rightly enjoyed assistance from neutral officials, including parliamentary counsel, in the drafting and structure of their revised proposals. Before we reach Report, or shortly after if successful with the principle I am raising, I am sure that those of us who support these amendments will receive and welcome comparable access. I invite the Minister to confirm that there would be equality of arms in perfecting the proposed clauses and amendments.
My Lords, I will speak to Amendment 120 and the amendments consequential to it. I should explain at the outset that my remarks incorporate the concerns of my noble friend Lord Farmer, who regrets that he is unable to be here. We are both worried, as I know are many other noble Lords, about current capacity and other pressures on the family courts. We are particularly concerned that these amendments would increase capacity pressures still further by placing decision-making and sign-off for applications for assisted dying orders into the Family Division of the High Court.
The noble Lord, Lord Carlile, mentioned safety. Notwithstanding his reference to 40-plus circuit judges and a cohort of recorders, I fear that what is before us is a recipe for overwhelming a system that already shows grave signs of being overloaded. Noble Lords will know that, for some considerable time, my noble friend Lord Farmer has been pressing this and previous Governments to cite early legal advice and support in family hubs when families separate, to ease pressure precisely because of existing capacity issues.
Moreover, the National Audit Office recently said of the family justice system:
“The government … does not have an overall assessment of the main drivers of delays or the capacity required to manage the system efficiently and reduce delay. MoJ, DfE and others have carried out several reviews … to identify causes of delay in family justice, identifying more than 25 different contributing factors … but most of the reviews could not quantify the scale and impact of each issue on overall performance, or the resources required to deal with these causes efficiently, due to data limitations”.
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Given this, my noble friends and I do not really understand how placing these new requirements under Amendment 120 on to the already overburdened shoulders of the family judiciary is either helpful or indeed realistic. Our concern is exacerbated because, without access to the Government’s assessment of the Bill’s impacts on time in the family court system, we cannot know for certain—yet Parliament is being asked to legislate regardless. I struggle to see how that is meant to engender faith either in your Lordships’ House or indeed the parliamentary system. Surely, this illustrates once again the inappropriateness of a Private Member’s Bill for such a complex and momentous piece of legislation.
I appreciate that it could be argued that only High Court judges, or senior circuit judges who are designated family judges, will hear and give direction on assisted suicide cases. I note again what the noble Lord, Lord Carlile, said about circuit judges, for example, and recorders. But, even if only these echelons of family judiciary were involved, it would still put immense strain on an already overloaded system. I understand that projections per annum suggest about 2,000 assisted dying cases in year six. Each case would, we assume, require substantial court time and judges’ out-of-court attention. So I would be very interested to hear from the family justice Minister what the Government’s position is on this, because previous incumbents with whom my noble friend Lord Farmer has spoken have emphasised the backlogs and delays that families in very many circumstances already face.
I focus my remarks on the impact of Amendment 120 and consequential amendments on the judiciary. But, of course, that overlooks the human cost in terms of the impact on families. What about them? Assistant dying cases would be very time-sensitive, so many hard-pressed families would inevitably be pushed further back in the queue, including those with complicated circumstances that also require senior judges’ expertise. Do we think that that is fair?
My noble friend Lord Farmer had a particular question for the noble Lord, Lord Carlile, relating to the word “may” in subsection (2) of the proposed new clause in Amendment 120, and how this could be interpreted. It currently says:
“The President of the Court may direct that the application may be heard and directions given by a judge of the Family Division or by a circuit judge who is a designated family judge”.
My noble friend asked the Public Bills Office how the word “may” could be interpreted, because in commercial contracts, where his experience lies, “may” is an ambiguous word implying optionality, so it is always a red flag for him. He accepts that in this context it might simply mean “This law would permit”.
I know that, had he been able to be present, my noble friend would have wanted to ascertain how it would be interpreted outside the commercial environment because, when he asked the Public Bills Office whether it would allow the president simply to grant the order applied for, circumventing the process outlined in the rest of the new clause, and/or to direct other judges, and/or to adjudicate on whether the application should be heard or not, the Public Bills Office was unable to provide advice as to exactly how the courts would interpret this. So my noble friend Lord Farmer would be very grateful if the noble Lord, Lord Carlile, could explain in his closing remarks the use of the word “may”.
I understand that, if the interpretation needs to be clearer, my noble friend Lord Farmer might consider tabling an amendment to this amendment on Report, although Amendment 67, in the name of the noble Baroness, Lady Grey-Thompson, might at least prevent the first option, where the president simply grants an order applied for. I am sure I am not alone in believing that the slightest risk of assisted dying applications being nodded through over time has to be strenuously guarded against, not least given that Sir Nicholas Mostyn cautioned against the High Court’s involvement in a previous incarnation of this Bill being no more than a symbolic rubber stamp.
I look forward to hearing from the noble Lord, Lord Carlile, and, as I said earlier, from the family Justice Minister, if she is in her place.
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The issue of principle is whether permission for assisted suicide should be given by the court or via a panel. The promoters’ original intention was very clear: it was to be a court-based process. But by amendment they moved their choice to the panel procedure that currently appears in the Bill. I believe that they had two main reasons. First, the courts may not have enough judges to deal with the volume of applications they expect. The court in question at that stage was simply the High Court of Justice Family Division. Secondly, it might prove more difficult to obtain permission from a court than from the panel as now described.
As to the judges, Amendment 120 offers a simple and sound solution that I am surprised had not been thought of before. It would broaden the range of judiciary who would be designated to reach these momentous decisions, which involve the deliberate participation of one individual in bringing about the death of another. That a judge should be involved is, I suggest, self-evidently appropriate and what we should expect, given that third-party participation in a death would otherwise involve the offence of murder. I remind your Lordships that murder is defined as being involved in bringing about the death of another with the intent to kill or do grievous bodily harm.
Decisions about whether life support should be switched off are regularly heard by judges of the Family Division of the High Court, as are other extremely important decisions concerning family life, including matters affecting contact between parents and their children. There are, however, only 20 High Court judges in the Family Division, including the president. But, around the country, there are more than 40 designated family judges: specialist circuit judges who deal with the most difficult and important cases. By adding those 40-plus designated judges into the cohort of judges who would decide cases envisaged by this Bill—they were not envisaged as part of the process originally—there would, I suggest, be an ample supply of skilled and diverse expert judiciary, who would provide confidence-inspiring judgment in this important and difficult new area of the law.
The training of judges is very important in this context. The Judicial College provides expert training for all judges, including in specialist jurisdictions. There are those in this Chamber who have acted both as students and tutors in the work of the Judicial College. I add that there is a cohort of recorders, who are part-time judges, who could fill any listing gaps caused by this new jurisdiction.
As to the second objection—that it might prove more difficult to obtain permission from a court than from a panel—I suggest four cardinal points. First, it should not be easy to permit third-party involvement in someone’s death—nor should it be impossible, which is not the aim of these amendments. These amendments are predicated on the assumption that assisted suicide becomes lawful. It should be the subject of a procedure proportionate to the great legal change involved. In some cases, that may make an application more challenging, but those are exactly the cases in need of increased scrutiny and protection.
Secondly, where do we expect difficult issues of this level of seriousness and complexity to be tested and adjudicated upon? Generally, the answer is: in the courts, of course. There is no comparable precedent in which a matter affecting life and death is handed to a panel, even one chaired by a senior or retired lawyer. There are good reasons for that expectation. The court has special powers, which include, importantly, ordering the disclosure of documents, such as relevant correspondence and medical records, and the power to examine in a balanced way the arguments and evidence of both sides of a question, and to make a reasoned decision about what evidence to accept or reject. An example of such an issue might be whether, for example, an applicant is ordinarily resident in England and Wales or the UK—not necessarily an easy question to answer.
The court procedure allows the intervention of what are called interested parties—close relatives, for example, between whom there may be important and relevant issues—if the court regards the interventions as of potential value. Every day of the week, courts consider whether interveners should be allowed in a particular case, on the merits. Another thing that courts do is produce reasoned judgments in which clear findings of fact and law are set out. This is part of the everyday work of judges in every court around the country.
My third cardinal point is the appeal process. An appeal process is well understood and would be available through the courts. The court has a very good reputation for efficiency and prompt action in cases that clearly require it. Where real urgency is required, the courts respond, in a familiar jurisdiction that does not have to be designed from scratch and commands as much public confidence as any process that we have in our polity in this country.
My fourth cardinal point is that courts are familiar with the concept of individual capacity, with hearing and deciding upon expert evidence, and—above all in this context—with dealing with allegations of undue influence. The greatest worry I have about this new jurisdiction is that undue influence, often financially motivated, may feature heavily in some cases. There is some evidence—from Canada, for example—that that has been a real issue in a significant number of cases. Rooting out undue influence after the event offers absolutely nothing in this jurisdiction because the individual whose life is being discussed will already be dead.
The experience of judges, honed in practice in which, from time to time, they all encounter examples of the most egregious and devious behaviour, together with the forensic nature of the court process, promises a reasonable prospect of fair and proper decision-making. It may be of interest to note that, yesterday, we welcomed into our House a new Member—the noble Lord, Lord John—who has spent his legal practice dealing with just that issue of undue influence as a distinguished probate lawyer. That is just an example of the way in which lawyers and the courts deal with these issues. In addition, the recruitment of judges is statutory, well tested and very successful. The recruitment process suggested for the panels has none of those known qualities. Indeed, it is an unknown quantity.
I promise your Lordships that I do not propose these amendments in a way that is intended to undermine the Bill. My aim is based on the presumption that a Bill of this kind will be passed. My amendments are intended to make it safe—an aspiration I know is shared by the noble and learned Lord, Lord Falconer. Confidence in his proposals would be greatly increased by his acceptance of the principles behind these amendments. I beg to move.