Terminally Ill Adults (End of Life) Bill

Baroness Butler-Sloss Excerpts

Friday 9th January 2026 Lords Chamber

[Lord Harries of Pentregarth (CB)]

I wish to speak to Amendments 25 and 120 in the name of the noble Lord, Lord Carlile of Berriew, to which my name is attached. They are amendments which I believe go to the very heart of the Bill. It is vital that if the Bill eventually comes into law the system set up for approving requests for assisted dying should have the trust of the general public. We have to bear in mind that although people generally trust one another, trust in institutions is now at a record low; to put it another way, there is in our society now a deep distrust of official bodies.

However, having said that, there is one exception: the judiciary. Between 70% and 73% of the public trust judges to tell the truth, which is why we need a court-based system. The Member in the other place, when she introduced the Bill, argued that having a High Court judge would give the system an extra layer of protection against coercion and pressure, making it the “most robust” and safest system in the world. She was right in saying that. As we now know, however, she changed her mind, and the Bill comes to us in a very different form, with panels instead of a judge.

The main reason for the change was the view that the High Court did not have the capacity to meet another set of demands; hence the amendment in the name of the noble Lord, Lord Carlile, that requests should be dealt with by the Family Division. As he pointed out, although there are only 20 High Court judges in the Family Division, there are 40 other designated judges trained to hear serious cases; with this cohort there would be enough people available to hear requests for assisted dying.

The other reason for having a court-based system, which I find persuasive, is that a court has the legal powers to summon witnesses and order documents. If a judge had a concern about financial pressure being involved in some way, he or she could summon relatives or others involved to help him or her reach a decision. I am not aware that the proposed panel currently in the Bill will have a similar power. In Clause 17, “Determination by panel of eligibility for assistance”, the word “may” is mentioned eight times in subsection (4). The panel “may” call for this or that, but so far as I can see, it has no powers to make people comply.

We heard a very powerful defence from my noble friend Lord Pannick of the panel system with its experts and its other people. But I remind my noble friend that at the Second Reading of his Assisted Dying Bill in 2014, the noble and learned Lord, Lord Falconer, accepted an amendment from my noble friend to add a review of the Family Division of the High Court. He pointed out, rightly, that the Family Division deals with very difficult cases such as the Bland case or the separating of the Siamese twins, and he argued that they could deal with very difficult cases speedily and in time.

The noble and learned Lord, Lord Falconer, also told us that he disagreed with alternative proposals for the panel, which was, at that time, a panel of magistrates, not the kind of panel we have now. He said then:

“I think that you need the highest-quality judges to decide these issues”.—[Official Report, 7/11/14; col. 1881.]


The Times, in its leader on 15 December, described the move away from a court-based system to a panel as an “ill-advised about-turn”, and it was.

The noble Lord, Lord Shinkwin, and the noble Baroness, Lady Berridge, pointed to, quite rightly, the extra pressure that will be put upon the Family Division. But on the assumption that the Bill will go through—it has, after all, been voted on by the elected House—we have to ask ourselves: which is actually safer? Is it safer to have a court-based system or to have the panel? I believe that given that it is judges who are trusted in society, we should go for a court-based system, and I strongly support the amendments in the name of the noble Lord, Lord Carlile.

[Baroness Butler-Sloss (CB)]

My Lords, I am the only person in this House who was President of the Family Division. I did the final part of the Bland case, to allow him to die. I very much prefer the idea that we should have a court-based decision, for the reasons that have already been given. I am rising only to answer some of the points made by the noble Lord, Lord Shinkwin, and the noble Baroness, Lady Berridge.

First, judges try extremely difficult and emotional cases. I really do not think it is necessary for this House to consider the emotional impact of those cases because that is our job. If it is our job, we do it, and then we hope that we can cope with it. I tried endless life and death cases; I have to tell your Lordships that deciding that a baby should die was even worse than deciding that an adult should die, but it has to be done.

Secondly, I come to the proposal of the noble Lord, Lord Carlile, that not only the 20 Family Division judges should make these decisions but deputy High Court judges and the designated family judges; indeed, there are other judges in the family centres who are equally good. When I was President of the Family Division, I ticketed those family judges who were suited to try adoption cases. I see no problem in the President of the Family Division deciding on those judges and the KCs who are Section 9 deputy High Court judges to work out who would be suitable to try these cases. That would increase the number of judges available from 20 to all the part-time and other judges around the country. That is not the best solution—the best solution is the 20 judges—but the reality is that it would be necessary.

Finally, if Parliament passes this legislation and tells the Family Division and the other family judges that it is their job to deal with somebody who is likely to die within six months—although we all know how inaccurate that six-month figure can be—the judges will do it. They will then have to give priority to life and death cases, which they do anyway, even if it means that other important cases are kept waiting. Therefore, the delays in all the other cases have to give way to the requirement of Parliament that judges try the cases.

[Lord Garnier (Con)]

My Lords, I am diffidently following the noble and learned Baroness, with her experience both as a legislator and as a very senior judge. I am very pleased she intervened when she did, because her contribution has been most helpful, There is always a difficulty for someone like me, who is not a family law practitioner, to draw a distinction between the arguments of the noble Lord, Lord Carlile—I broadly support what he advanced—and the analysis of the noble Lord, Lord Pannick, in his construction of the Bill as it stands. There is merit in both, but as a House, we have to try to produce a practical solution. Irrespective of whether one supports the principle behind the Bill, if it goes through, it might as well go through in a way that works.

Putting to one side for the moment the very sensible arguments made by the noble Lord, Lord Pannick, one of the advantages of the arguments put forward by the noble Lord, Lord Carlile, is that we will be producing answers through a court of record, and it will create a form of precedent. I do not know, and maybe the noble and learned Baroness will tell me differently, but I have a suspicion that to start with there will be a rush of factually different types of case under this application system. At least one or two of the lead cases will be grouped and go to the Court of Appeal, where perhaps the president, with two other highly experienced Lord Justices of Appeal, will set out a legal rubric for judges of first instance to deal with. If the noble Lord, Lord Meston, has a moment, it would be interesting to hear what he has to say as an experienced family law circuit judge.

From the Court of Appeal, a case or a group of cases will go to the Supreme Court. I suspect that will all happen reasonably quickly within the early part of the life of the enacted Bill. Once we have done that, the system will settle. Senior circuit judges, Family Division judges, will be able to deal with these cases—difficult, hideous or contentious as some of them may well be—with the permission of Parliament, of course, but with the guidance of the Court of Appeal and the Supreme Court. That is a system to be preferred, because the panel system in the Bill, which the noble Lord, Lord Pannick, described, does not necessarily provide that legal authority, albeit that there could be a judge on the panel. It will not have the imprimatur of the Court of Appeal or the Supreme Court in its assessment of what has happened—I may be wrong about that.

[Baroness Butler-Sloss (CB)]

To pick up on what the noble and learned Lord, Lord Garnier, has just said, he is absolutely right. In the Bland case, that was exactly what happened. This was a permanent vegetative state. No one had ever had that case come before the courts. A High Court judge dealt with it; I was in the Court of Appeal, where we approved it. The Supreme Court—then the Judicial Committee—approved it. I then tried the first case. Then, it was understood by other judges how it should be dealt with. So, the noble and learned Lord is absolutely right.

[Lord Garnier (Con)]

I am very grateful to the noble and learned Baroness for her approbation of what I just said.

My final point concerns what happens if there is a lack of High Court judges in the Family Division. We are told there are 20, and there are 40 circuit judges who specialise in family work. It may well be that when the noble and learned Baroness was in the Court of Appeal or the Supreme Court, a commercial judge from the Queen’s Bench Division was appointed as the President of the Family Division. There are plenty of very bright and capable judges in the other divisions who, if required, could apply themselves to these sorts of cases. So, we are not going to be short of personnel; what we are short of is a decision of this House to agree with the position of the noble Lord, Lord Carlile, or something like that. It may well be that the noble and learned Lord, Lord Falconer, will come up with a way of dealing with the gap between him and the noble Lord, Lord Carlile, as one of these 10 thematic discussions, so we get a workable, just and publicly respected system which, if we are to have a Bill, allows the public to feel confident that it will work properly.