Assisted Dying Legislation: Isle of Man and Jersey

Baroness Jay of Paddington Excerpts

Tuesday 3rd March 2026 Lords Chamber

[Baroness Levitt (Lab)]

The most recent communication from the Isle of Man—the latest information—was received at the end of January. Officials are now preparing advice for the Lord Chancellor. It would be completely inappropriate for me to comment on either the timing or the content of that advice.

[Baroness Jay of Paddington (Lab)]

My Lords, notwithstanding the Government’s determined position of neutrality, which the Minister has rightly said she has repeated many times, would she not accept that, once Royal Assent is given to the procedures and the Acts in Jersey and in the Isle of Man, there will be an extraordinarily unsatisfactory patchwork of provision across the United Kingdom for assisted dying, and therefore it is particularly important that the Government should make sure that the Bill before your Lordships’ House is properly completed?

[Baroness Levitt (Lab)]

I still cannot think of another, better way of saying it. I think it would be rude to my noble friend to say that I refer her to my previous answer, but I am afraid I do.

Terminally Ill Adults (End of Life) Bill

Baroness Jay of Paddington Excerpts

Committee stage
Friday 27th February 2026 Lords Chamber

I give way to the noble Baroness, having referred to her; I am sorry for pointing out her grimace.

[Baroness Jay of Paddington (Lab)]

My Lords, I know I am out of order because I was not here at the beginning of the debate on this amendment, but I feel it is important to say to the noble Lord that I was not grimacing at the point he was making.

[Noble Lords]

Order!

[Baroness Jay of Paddington (Lab)]

I am going to continue with this point, because it is a general point that there has been very limited discussion on the amendments since I have come into the House.

[Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)]

My Lords, I am reluctant to stand up as my noble friend was referred to. Having said that, I think it will benefit every Member of the Committee if we continue with the debate.

Assisted Dying Bill [HL]

Baroness Jay of Paddington Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Baroness Jay of Paddington (Lab)]

My Lords, this is the fourth Assisted Dying Bill that I have supported in your Lordships’ House; with each one, my conviction that this is a necessary reform gets even stronger. Today, my commitment is made more passionate by one particular personal experience: the assisted death of my closest American friend, someone I used to call my sister. She had been diagnosed with terminal illness, with terminal lung disease, and she wanted to be remembered as someone full of life, which she certainly was, rather than as a debilitated cancer patient.

Her son wrote a powerful account of how she chose to end life for the Washington Post, and I quote him:

“On a Sunday evening in July 2018, my 81-year-old mother raised a small red glass to her lips. In it was a mixture of water, grape juice and a fatal dose of a medically prescribed drug … She was sitting up in a hospital bed in her Washington DC home, bathed in warm early evening light, and chatting and passing time with me, my sister and all her grandchildren … Finally, there was nothing more to say. Surrounded by family, she seemed composed and unafraid, ready to shed the anxiety, pain and humiliations that come with terminal lung cancer. Without the slightest hesitation, she drained the glass and lay back on her pillows. Within a minute, her features softened and her eyes closed. She fell into a heavy sleep, her breath audible. It wasn’t long before her breathing slowed, and then stopped.”


Some time later I went to Washington to speak at her memorial, held at a chapel attached to Washington National Cathedral. It was a traditional service led by an episcopalian minister. The circumstances of her death were clearly acknowledged and understood. Afterwards the large congregation gathered in the chapterhouse where we exchanged memories over tea and sandwiches. Nothing about that occasion was clandestine or fearful. It was a familiar ritual, the kind of comforting rite of passage that we have all experienced, this one sanctioned by the law and accepted by society and made possible by the District of Columbia Death with Dignity Act, passed in 2016.

The DC law is very similar to the one that the noble Baroness has proposed today. After three previous Bills and, frankly, decades of discussion, it is time that we acted to make this kind of civilised, gentle choice at the end of life available in our capital city and indeed throughout the United Kingdom.

Queen’s Speech

Baroness Jay of Paddington Excerpts

Tuesday 18th May 2021 Lords Chamber

[Baroness Jay of Paddington (Lab) [V]]

My Lords, I congratulate the noble Lord on his special suit and the two noble Baronesses who will make their maiden speeches.

This past year has certainly thrown up a whole range of important issues for both Parliament and government to confront. I am privileged to be a member of your Lordships’ Select Committee looking at life after Covid and some of the long-term problems that we have to deal with, not necessarily through legislation. Noble Lords will be aware of our recently published report on the pandemic and the internet, which concluded that internet use over the past year had accelerated by a decade the changes in that world and exposed alarming inequalities in the digital society. It also exposed a lot of the problems with online life that have already been referred to in this debate.

One perhaps less immediately obvious topic on which the Select Committee has received powerful written evidence but has not discussed concerns the sensitive questions about how we care for the dying and our choices at the end of life. The tragedy of the daily death tolls reported on the evening news and the extraordinarily sad stories about bereavement in lockdown seem to have crystallised and stimulated a new interest—a determination that we must make changes for the better. These issues bring together the legal, ethical and medical dilemmas that we in this House have often debated.

However, I am convinced that there is now an appetite for a more open, evidence-based approach. Somehow, the pandemic has enabled us to talk about death in a way that reduces superstition and taboos. The organisation Compassion in Dying reports that calls to its information helpline have increased by almost 50% in the past year and that the number of people making so-called living wills—that is, refusing treatment in certain circumstances —has soared by 160%.

We are all, of course, acutely aware that the coronavirus has put unprecedented burdens on our healthcare professionals and their resources. At the beginning of the pandemic, there were disturbing stories about inappropriate rationing of intensive care and “do not resuscitate” decisions being made without proper consultation. That was troubling but it prompted open and honest discussion which has, in turn, produced useful developments led by the Care Quality Commission. It reported earlier this year and there is now, for example, a new ministerial oversight group established to improve the use of “do not resuscitate” decisions.

In our new post-pandemic world, we must also respect those people who want neither resuscitation nor intervention but whose preferred choice at the end of life may be a medically assisted death—still, of course, illegal here. Over the past year, the situation in which those who want to exercise that choice are forced to travel to Switzerland has become even more intolerable. Outsourcing this emotionally and practically difficult option to another country has always been regrettable and unethical. Today, Covid restrictions have made it almost impossible. We must now look again at our own law and its cruel blanket ban, which has led to an increasing number of reports of desperate suicides by dying people.

It is therefore extremely helpful that the Health Secretary has now asked the ONS to look at those reports and examine the statistics on suicide among the terminally ill. Mr Hancock has committed himself to ensuring that, in general, good factual evidence is available for future parliamentary debate on assisted dying. In this House, we will have that opportunity when the Private Member’s Bill of the noble Baroness, Lady Meacher, on this subject is introduced. She is speaking almost next in this debate and I look forward to her contribution and, most importantly, to her Bill. Noble Lords will remember that five years ago, we supported the proposal of my noble and learned friend Lord Falconer on assisted dying and I very much hope that we will support this similar Bill. The pandemic experience has created the circumstances for safe, compassionate legislation to give dying people the right to choose the death they want for themselves.

Assisted Dying Bill [HL]

Baroness Jay of Paddington Excerpts

Friday 16th January 2015 Lords Chamber

[Baroness Jay of Paddington (Lab)]

I apologise to the noble Baroness and realise that she will speak to the other amendments to which she has put her name. Would it not be much simpler to agree Amendment 15 to which she has also put her name but is primarily in the name of the noble Baroness, Lady Murphy, who unfortunately cannot be here today? That amendment simply does what the noble Baroness, Lady Finlay, has just described by inserting “registered” and “licensed” into the Bill.

[Baroness Finlay of Llandaff]

I am most grateful to the noble Baroness for that intervention because it allows me to clarify that I think that such doctors should, in addition, be on the general practice or specialist register for the reasons I have just outlined. Indeed, I was grateful to the noble Baroness, Lady Murphy, for having picked up a point that came in later amendments that I have tabled in relation to the doctors involved.

I shall proceed to speak to the other amendments, however. Clause 2 of the noble and learned Lord’s Bill caters for people who have been told that they have a terminal illness and are expected to die from it in the near future—within six months. Such situations exist; most of us will know of people who have been in this position. However, terminal illness is, I am afraid, a much more complex matter than that. There is a tendency to think that people who are terminally ill are somehow a group distinct from others who are not, but the reality is very different.

Yes, there are people who were apparently healthy but have discovered that they have a malignancy or other condition that seems likely to bring about their death in the not-too-distant future. However, many more people have conditions—for example, multiple sclerosis, Parkinson’s disease or heart disease—that are incurable and life-shortening and which, at some point in the future, can be expected to result in their death. All these conditions would fall easily within the definition of terminal illness, as described in the Bill, which is,

“an inevitably progressive condition which cannot be reversed by treatment”.

But that is not enough. Some conditions are progressive and cannot be reversed by treatment, but the underlying cause may be curable—hence the insertion of “direct”, so the provision would state that as a “direct consequence” of the disease the person is expected to die.

However, there is another aspect to treatment that matters. Some conditions can now be so significantly halted in their progress that the person’s life expectancy lengthens and their quality of life improves dramatically. These are people who at one time appeared to be terminally ill, or even actively dying, but have responded so well to treatment that they no longer fit the definition. I hope that the noble and learned Lord, when he responds, will clarify just how six months will be determined.

The noble and learned Lord will no doubt point out to us that the Bill contains another parameter of terminal illness—namely, that the person seeking assistance with suicide not only has a progressive condition but is reasonably expected to die within six months. It is true that not everyone with a progressive and incurable condition is expected to die in six months, but it is necessary to recognise that the Bill as it stands would bring within its ambit not only people who have been told that they are terminally ill but everyone with moderate-to-severe progressive and chronic illness. After all, how often have noble Lords said, “I would not be surprised if so and so died within the next six months”? Indeed, I regret to say that that has been said within this Chamber about noble Lords at times—and yet, fortunately, they have reappeared on these Benches a long time after those six months. Perhaps they might be described affectionately as a “creaking gate”. It is important to recognise that fact because it has a bearing on the question of prognosis.

Let me illustrate the point with a specific example. A colleague of mine in his late 60s had very brittle type 1 diabetes, episodes of heart failure—the prognosis for which is usually worse than for cancer—and other co-morbidities. All his colleagues thought that he would be dead soon. Over several years, I and others have reasonably expected him to die within a few months. Over 10 years or more, at any point in time, I or another doctor would have stated that he could reasonably be expected to die, but he has not. I have had many patients who I really thought were dying. I have sat the family down and told the patient that I really thought that their life expectancy was in months. However, by our going back and rigorously looking at things again with meticulous attention to detail, they have vastly outlived the prognosis, not only by months, but fortunately often by years, with a good quality of life.

I ask the noble and learned Lord to clarify whether the Bill is designed to include cases where the prognosis might be much longer. In his Second Reading speech, he suggested that the Bill purports not to do that. That is why I have proposed the insertion of the word “direct”: the patient must be expected to die not because he is very old or has multiple co-morbidities but directly from that terminal illness.

Assisted Dying Bill [HL]

Baroness Jay of Paddington Excerpts

Friday 18th July 2014 Lords Chamber

[Baroness Jay of Paddington (Lab)]

My Lords, I rise to support my noble and learned friend’s Bill. I see it as a tightly focused and compassionate Bill, which will clarify the incoherent legal framework we have heard about today. It is more than 20 years since I first debated assisted dying. Since then I have sat on two Select Committees on this matter, visited the Dignitas organisation in Switzerland, and observed the Death with Dignity Act in Oregon. I have learnt a great deal from those experiences and my views have evolved and strengthened over that time.

I am today absolutely committed to the provisions in my noble and learned friend’s Bill. It has a narrow, specific focus on the terminally ill; it contains strict upfront safeguards and eligibility criteria; and it is an entirely appropriate measure for this country to adopt. My opinion has been reinforced by many personal approaches urging us to pass this Bill. Over my years in this House, I have been the object of many lobbies, as I know others have, but this has been totally different. Many of the individual stories are very hard to hear and difficult to read. My most recent correspondent, just this week, watched his wife die only a few days ago. He writes:

“She struggled with the vestiges of living … All she sought was peace and the law forbade it. How can that possibly be right?”.

Testimony like that makes it difficult to understand how anyone can reject a measure based on the reduction of human suffering.

However, I want to emphasise the constitutional significance of our proceedings. I have just stepped down after four years of holding the privileged role of chairman of your Lordships’ Select Committee on the Constitution. That position has emphasised to me the central role this House plays in the significant part we take in scrutinising the detail of legislation. It is our most important constitutional function. If we look at the Bill from that perspective, it would surely be a gross dereliction if we did not pass it beyond today’s Second Reading towards the close, dispassionate and detailed analysis it needs.

Of course, our duty to give the Bill proper consideration has been spotlighted by the findings of the Supreme Court. It is worth, even in this short debate, mentioning just some of the points it made. The justices unanimously held that the United Kingdom must decide whether the current law on assisting suicide is incompatible with Article 8 of the European Convention on Human Rights—the right to private life. In other words, it is not an imposition from the European Court. A majority of the court held that they had the constitutional authority to make a declaration that the general prohibition on assisting suicide was incompatible with Article 8. Two of justices were prepared to make that declaration then, but the others declined to do so, taking a view that Parliament should be allowed to debate the issue, as we are doing today.

The noble and learned Lord, Lord Neuberger, President of the Supreme Court, said:

“Parliament now has the opportunity to address the issue … if it is not satisfactorily addressed, there is a real prospect that a … successful, application for a declaration of incompatibility may be made”.

He was saying that we could face an extraordinary impasse, whereby the Supreme Court has ruled that two of our important pieces of our law are incompatible. Presumably, that would then lead to very rapid, hasty legislation being introduced—an unsatisfactory situation.

The fundamental understanding of our unwritten constitution is that Parliament is sovereign. The judges, however wise and authoritative, do not make the law; Parliament does. We have before us a timely and considered Bill; we have the opportunity to act and we must do so.

Assisted Suicide

Baroness Jay of Paddington Excerpts

Wednesday 5th March 2014 Lords Chamber

Asked by

[Baroness Jay of Paddington]

To ask Her Majesty’s Government whether they continue to be satisfied with the Director of Public Prosecutions’ Guidelines on prosecution for assisted suicide.

[Baroness Jay of Paddington (Lab)]

My Lords, I welcome this opportunity to question the Government about their current position on this very difficult and sensitive area of criminal law. This debate is extremely timely. It is exactly four years since the then Director of Public Prosecutions, Keir Starmer QC, issued his policy for prosecutors in cases of encouraging or assisting suicide. At the moment, the Supreme Court is considering two cases which challenge those guidelines. Nine Supreme Court judges heard these cases last December and their judgment is due very shortly. Naturally, I do not expect the Minister to anticipate their findings tonight, but it is relevant to this debate to recognise that is widely expected that the Supreme Court will say, as so many other judgments have, that it is ultimately Parliament’s responsibility to determine the law on assisted dying.

Perhaps I may very briefly outline the law as it stands today. The Suicide Act 1961, which makes assisting suicide a criminal offence liable to 14 years in prison, is still in force. Under this Act, the DPP has always had discretion about whether to prosecute in particular cases, but until five years ago, when Debbie Purdy won her appeal to the Law Lords seeking clarity, that prosecutorial discretion has often been shrouded in obscurity and ambiguity. The Law Lords instructed the DPP to produce new, specific guidance, and after public consultation the existing guidelines were published in February 2010.

I must make clear at the outset that I very much support the introduction of those guidelines, and in general I commend the way they have operated. I think the guidance has been particularly useful in making clear that when a relative or friend who is wholly motivated by compassion gives assistance to a person who themselves has made informed decisions about the end of their life, the relative or friend is very unlikely indeed to be prosecuted. On the other hand, someone with malicious or selfish intentions who helps a suicide will almost certainly feel the full force of the criminal law.

Opponents of making any further change find this situation perfectly satisfactory. In their view—and I have heard this expression quite often—the law now has a “stern face but a kind heart”. It is a very elegant phrase, but I do not think that it accurately reflects reality. The existing guidelines, welcome though they are, do not give overall coherence to the law on assisted suicide. They do not offer sufficient legal protection and, most importantly, are inadequate to prevent unnecessary suffering at the end of life.

I have several concerns which I would like to raise with the Minister this evening. The most significant is the position of healthcare professionals. The guidelines state in general terms that prosecution is more likely if a healthcare professional, rather than a relative or friend, helps someone to die. However, the nature of any professional assistance is not defined. We can assume, I am sure, that if someone prescribed lethal drugs, that would result in a prosecution. But to what extent can a doctor or a nurse give counsel to a dying patient who wants to end their life, or, for example, advise and assist them to seek help abroad? These questions are not addressed in guidance and, consequently, considerable ambiguity remains.

Healthcare professionals can often feel unsure of their position. A bizarre illustration of this was told to me recently by Cameron Brown, whose 87 year-old mother was asked to leave her care home when it was discovered that she was a member of the campaign group Dignity in Dying. It was feared that if she did take her own life, the care home could be criminally liable.

It is not surprising, therefore, that suffering patients can be left to sometimes dubious solutions that they access on the internet, or to stop drinking and eating in order to bring forward an inevitable death. Of course, the hard-hearted answer to that, which we also sometimes hear, is that a dying person can always kill themselves without any assistance, and therefore without any possible legal threat to anyone.

Frankly, I have heard too many cases like the recent one of Kevin Davis to find that a remotely acceptable position. Kevin Davis, a middle-aged man with terminal renal cancer, received very good palliative care but was still suffering badly. He knew that he could not ask his health team for help to end his life and so, one evening, having been at home by himself, he was found by his family dead at the bottom of the staircase, I am afraid to say in a pool of blood. Afterwards his family said that Kevin was angry that he could not choose a dignified death at a time when his suffering became too much, and so had taken a rather sad and lonely way out. Of course, the paradox is that if his family had helped him, they probably would not have been prosecuted. But surely this is not a satisfactory position. The key question is whether it is sensible for the Government and Parliament effectively to condone compassionate amateur assistance to die while prohibiting professional medical assistance which might be equally compassionate and more skilfully gentle.

I am also concerned about how the guidance deals with the issues of mental capacity and decision-making. The guidelines say that to avoid prosecution, it must be established not only that the motives for assistance are compassionate but that the person who dies, referred to as the victim, must have made a settled and informed decision to do so. But obviously, as these are prosecuting guidelines, the investigation of the circumstances of death occurs only after the fact—after a person is dead. It is worth saying that even in the cases where a prosecution is not pursued, a police inquiry does take place. In an earlier debate introduced by my noble friend Lord Dubs, the noble Lord, Lord Blair of Boughton—who sadly regrets that he had to withdraw this evening due to the re-timing of the debate—described from his police experience the stringent way in which these criminal investigations proceed. As he said, the police treat such a case as a possible homicide. Family and friends are treated as suspects, and the process enormously increases the sadness and stress which follows any death.

However, the fundamental legal problem is this, as the guidelines themselves say:

“It may sometimes be the case that the only source of information about the circumstances of the suicide and the state of mind of the victim is the suspect”.

This seems to be a potentially absurd situation. Does the Minister agree that that kind of after-death investigation offers absolutely no protection to potentially vulnerable people whose relatives could both lie about their own motives and the deceased person’s state of mind? Surely it would be much safer to have a statutory law which allows assisted dying for mentally competent terminally ill adults in restricted and safeguarded circumstances—circumstances which could then be established and assessed while the person is still alive.

My third concern about the present legal framework is that the terms of prosecutorial discretion rest exclusively with the lawyer who holds the office of Director of Public Prosecutions. There is no certainty that the prosecution guidance could not be altered by successive DPPs. As far as I am aware, the newly appointed Director of Public Prosecutions, Alison Saunders, has not indicated that she intends to make any changes, but that is not a permanent guarantee.

The simple truth is that Parliament should act. Parliament should take the lead and not leave this complex legal and moral issue solely in the hands of the courts and the lawyers. At the very least we need an official assessment of the prosecution guidelines on assisted suicide and how they are working.

Undoubtedly the guidance has clarified how the law is applied in certain circumstances, but it still causes distress to those who assist compassionately and forces those who cannot get assistance to suffer against their wishes. Beyond this, the statutory law still requires a crime to be committed before any post hoc investigation can take place.

I always say in my role as chairman of your Lordships’ Select Committee on the Constitution, “I am not a lawyer—but”. My “but” this evening is that this situation seems to me to be both incoherent and inadequate, and, more importantly in policy terms, unworthy of our open, ethically humane, 21st century society which does reflect individual rights. I look forward to the debate and the Minister’s response.

Defamation Bill

Baroness Jay of Paddington Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Black of Brentwood]

It is going to happen, and my lawnmower is out in force already. Media lawyers from across the industry are working flat out to establish a scheme that will be good for the public but not an intolerable burden on the regional press in particular. Crucially, we have to find a scheme that will not simply be a new cash cow for claims farmers. The scheme proposed by the noble Lord, Lord Puttnam, does not address the legitimate concerns—of the regional press in particular—about the problems that might be unleashed. Therefore, there is more work to do but excellent progress has been made.

What would stop it dead in its tracks is any attempt to establish a scheme by statute. There would be little point in a regulator setting up a scheme and the industry funding it if it were simply to compete with other bodies. If this amendment is agreed today, work will be likely to stop tomorrow because of the potential for what is in effect regulatory chaos. There is nothing in the scheme proposed by the noble Lord to stop the proliferation of a number of statutory regulatory bodies with different functions, codes, arbitration schemes and so on, and so it raises the potential for competition between regulators.

The truth is that no such statutory intervention will be necessary to set up a scheme that will be of real benefit to the public. We are clear that it can be delivered under the Arbitration Act 1996, which requires arbitrators to be impartial, to act fairly, to have rights of appeal and so on.

Legislating in this way is fraught with difficulties, as well as being unnecessary. As I have already said, it is a recipe for regulatory chaos. There is a danger of dragging senior members of the judiciary and the Civil Service Commissioners into matters of public controversy, and that would be highly undesirable. There are also serious concerns about whether such a compulsory scheme would be compliant with Article 6 of the ECHR, as the noble Lord, Lord Lester, said.

This is an excellent Bill but it is a liberalising measure designed to secure freedom of expression as well as protect the rights of the public. It therefore seems deeply ironic that what is being proposed is the introduction of a system of statutory supervision—press regulation—with the massive constitutional implications that that would bring. I regret to say that I believe the amendments are ill thought through, misguided and likely to prove unworkable. The most important point is that it would stall the initiative by the newspaper industry, which wants to deliver real change that will be of lasting benefit to the public. I do not believe that that is what the noble Lord or anyone wants, so I urge noble Lords to reject the amendment.

[Baroness Jay of Paddington]

My Lords, I am delighted to follow the noble Lord, Lord Black, who did not take part in our debate on Lord Justice Leveson’s report because he was abroad. I spoke in that debate and remind the House, and the noble Lord, Lord Black, that my main point was about the system that has existed very successfully for some years in Ireland, where many of the recommendations made by Lord Justice Leveson for the United Kingdom have been implemented simply and with no regulatory competition. That was done in the session of the Dáil in 2008-09 by inserting a clause into the Irish defamation Bill—a process that is very similar to the one being proposed by my noble friend Lord Puttnam this afternoon. I explained it on the occasion of the previous Bill and, like the noble Baroness, Lady Boothroyd, I shall not weary the House by going over all the details of the Irish situation again as those interested in this topic are already very familiar with them. Let it be said that the regulations are very similar to those proposed by Lord Justice Leveson and, indeed, the most important thing from the point of view of those seeking redress for press complaint is that the guiding notes say that the system is open and free to any citizen, dependent simply on the price of a letter or sending an e-mail. I am very happy to support the amendment.

[Baroness Scotland of Asthal]

My Lords, how fascinated I have been by this debate. As one of the proposers of the amendment, it is only appropriate that I speak now. I very much regret that the noble and learned Lord, Lord Mackay of Clashfern, is unable to be in his place. I had the advantage of speaking to him this morning and he is clear that he wholeheartedly supports the amendment. I had intended, after his erudite and elucidating speech, to simply say that I agree.

However, the importance of the speech of the noble Lord, Lord Black, cannot be understated. He said that the amendments were unnecessary because we would have a system in due course that would suffice. That is a bit like one of the saints saying, “Make me chaste, Lord, but not yet”. We have been waiting for some 65 years for redress. One of the reasons why the noble and learned Lord, Lord Mackay of Clashfern, is so concerned about taking this opportunity is because, as many of your Lordships will know, in 1993, when he gave evidence before the Select Committee, he suggested that we should have an arbitration system to give redress to the poor, to the needy and to those who would have no redress but for the creation of such a service. We have lived with inequality and inequity for a great number of years. Our House and the other place have regularly been asked to redress that wrong—that mischief that we have spoken about so clearly today.

We have an opportunity to choose, if we wish, to redress that balance. The noble Lord, Lord Black, said that the matter is not being kicked into the long grass. Well, if this is not long, I do not want to see short. We know that we have to grasp this opportunity if we wish to see change. The amendments in this group are not perfect; none of the noble Lords who tabled them suggests that they are. However, they are a vehicle that we can use with great efficiency and energy to enable the Government to be clear that we wish to see this redress.

The noble Lord, Lord Lester, rightly pointed out a number of issues. I say to him that there are a number of things on which perhaps I do not agree with him. For instance, on the back of the Bill it states that the Bill—Clause 3 et cetera—does not refer to Scotland. There are lots of things that we need to debate.

We are faced with a choice. The people of this country have been thirsting for change. Do we take this opportunity to slake their thirst or do we say, “No, you must wait even longer.”? I urge the House to give the other place and the Government the encouragement they so clearly need. It is an opportunity—and if the noble Lord, Lord McNally, would like to grasp it, there will be no one happier than we on these Benches.

When we debated amendments on the Legal Aid, Sentencing and Punishment of Offenders Bill, as it then was, the noble Lord, Lord McNally, assured us that:

“The Defamation Bill and the procedural reforms that we intend to take forward with it are of course about reducing the complexity and therefore the expense involved. In order for those aims to be achieved, we will look at the rules on costs protection for defamation and privacy proceedings for when the defamation reforms come into effect”.—[Official Report, 27/3/12; col. 1332.]

The vehicle that the noble Lord identified was this Bill.

There is a lacuna because, for one reason or another, the Government have not been able to take advantage of that opportunity. Let us, with the generosity of spirit for which this House is renowned, give them that opportunity today. I will vote in favour of my noble friend’s amendment if he is minded to press it, and I hope that the whole House will join us.

--- Later in debate ---

[Lord Hunt of Wirral]

I just point out that when I applied for this post, I asked a noble and learned judge what independence meant, because I was concerned about the fact that I would be appointed by the industry. My noble and learned colleague from the judiciary said, “Don’t worry about that. The House of Lords will judge whether you are independent or not”. So I place myself in the hands of my noble colleagues. You will have to decide. I think that the test is whether someone is of independent mind. I think that it is essential that whatever structure is created, the majority of people who administer and are responsible for the new system are people of independent mind.

There is no straightforward definition of that. The point that I made in my submission to the inquiry was that the Republic of Ireland had a voluntary self-regulatory system established some years earlier. It was only after it had proved itself that it was incorporated into the Defamation Act in 2009. That matters, because what Lord Justice Leveson called for was a body that was clearly proven to be independent-run.

[Baroness Jay of Paddington]

My Lords, I hesitate to get into the detail of this and do not wish to weary the House, but surely the point made by the noble Lord a few minutes ago about what I said about Ireland is that the legal recognition of the system—indeed operated by the industry—is precisely what he is asking for and what Lord Justice Leveson was asking for. Presumably, had the Irish community and the Irish Government felt that it was adequate, there would have been no need for the legal underpinning. It was to reinforce the industry-owned arrangements that the legal underpinning was established.

[Lord Hunt of Wirral]

The noble Baroness is quite right. I have spoken many times to Professor Horgan and to the Irish press council. Much of what I am seeking to introduce in the new Leveson-compliant body will follow the lessons learnt in the Republic of Ireland. All that I was seeking to point out to Lord Justice Leveson was that as soon as you go down any statutory route, which requires a Bill—I added this after I had made my comment about the Defamation Bill—you would be opening Pandora’s box. I suppose that the proof of that is the revised Marshalled List of amendments, because we are now getting into quite complicated territory.

I think that the way forward is, yes, to hear from the Government what has been happening in these three areas—

Crime and Courts Bill [HL]

Baroness Jay of Paddington Excerpts

Tuesday 18th December 2012 Lords Chamber

It is important that this amendment is accepted because clarity will be introduced where there is not clarity now, and the problems that occurred in the early stages of the life of the Supreme Court will not be repeated in future. The position is one such that I would have thought that the Ministry of Justice would share the views that I have just expressed. It should know, as I know, how important it is that the relationship between the courts and the Ministry of Justice is smooth and that it works efficiently. I believe that this amendment will achieve that.

[Baroness Jay of Paddington]

My Lords, I think I am the first non-lawyer to contribute, very briefly, to this debate. I see the Minister raising his hand and hope he will accept the point I will make.

As the House is aware, I am the chairman of your Lordships’ Select Committee on the Constitution and, as the noble Lord, Lord Pannick, said, have written to the Minister in that capacity about this amendment, simply to express the view that the committee, in its meeting last week, endorsed the amendment that has been proposed by the noble and learned Lord, Lord Phillips. I am very grateful to the Minister for writing back to me in a letter, with today’s date, which he concludes by saying:

“I can assure you that the Government remains committed to working with the Court to consider these issues”,

which he says are, of course, complex.

I was therefore a little disturbed to hear from the noble and learned Lord, Lord Phillips, in his introduction to the debate, that he felt that his discussions with the current president of the Supreme Court, the noble and learned Lord, Lord Neuberger, have run into the ground or “come to nothing”, which I think was the phrase he used. I would be grateful if the Minister, in replying, could perhaps elucidate, or expand a little more on that sentence that he has written in his reply to me, that the Government are committed to working with the court to achieve these ends.

[Lord Brown of Eaton-under-Heywood]

My Lords, I, too, feel compelled to say just a word in support of this amendment. I support it for the reasons already eloquently given by my noble and learned friend Lord Phillips of Worth Matravers and other noble Lords and have no intention of repeating those. I echo, too, his tribute to the present chief executive of the court, Jenny Rowe, who has worked tirelessly in setting up the court and progressing it over the three years that it has existed. I confirm—because I remember it all too well—what my noble and learned friend Lord Woolf said about the problem that the present wording of the legislation caused with regard to the chief executive’s role at an earlier stage in the court’s life.

On the critical point at issue, I respectfully suggest just this to your Lordships: constitutionally, it is no more appropriate for the Lord Chancellor to appoint the chief executive of the Supreme Court merely after consulting with the president of that court than it would be for the president of the Supreme Court, after merely consulting with the Lord Chancellor, to appoint the Permanent Secretary of the Ministry of Justice. The separation of powers means just that—the judiciary is not the Executive.

--- Later in debate ---

[Lord McNally]

I do not wish to pre-empt or shorten the debate, but it might help if I were to say something here. I hope that my noble friend Lord Marks will withdraw Amendment 6 as it is overtaken by the subsequent amendment. I will respond first to my noble friend’s Amendment 7, which seeks to apply a tipping-point principle to appointments to the UK Supreme Court.

The Government’s position has always been that a tipping-point principle should apply to the Supreme Court and we believed, as he said, that the tipping point in Section 159 of the Equality Act 2010 already applied to such appointments. However, as my noble friend Lord Marks explained, there could be a contrary legal view and I can see that there may be merit in the argument that this matter should be put beyond doubt. Therefore, I am happy to say that my right honourable friend the Lord Chancellor is content for me to take this amendment away for consideration with a view to returning to the matter when the Bill goes to the other place.

Amendment 8 concerns whether the Lord Chancellor and Lord Chief Justice should be under a statutory duty to encourage judicial diversity. Following the debate on this issue on Report, I agreed to discuss the matter further with the Lord Chancellor and Lord Chief Justice in order to reflect the strength of feeling expressed by the House. Amendment 8 is in response to that further consideration.

There is much agreement in the House about the importance of a diverse judiciary that more closely reflects our society. There is also agreement that strong leadership is needed to bring about this change. Amendment 8 helps achieve that leadership by giving a clear declaration of the importance of the Lord Chancellor and the Lord Chief Justice promoting diversity. Therefore, as I explained, in view of the reasons and undertakings I have given, I hope that my noble friend Lord Marks will withdraw Amendment 6 and will not move Amendment 7. I commend to the House Amendment 8, relating to a diversity duty, and I thank the Constitution Committee and other noble Lords who made the case so strongly for an amendment of this sort. I emphasise again that I will take away Amendment 7 for suitable representation in the other place.

[Baroness Jay of Paddington]

My Lords, my name is not on this amendment but I have spoken several times on this subject during the course of the Bill. I welcome the Minister’s further discussions with the Lord Chancellor, and the government amendment. As he said, it reflects the Constitution Committee’s considerations of this matter which, as he mentioned in the discussion on a previous amendment, have been going on since the beginning of this year. I am delighted that he has taken the view that he has and that he is proposing Amendment 8.

[Lord Pannick]

My Lords, I, too, am very grateful to the Minister for bringing forward Amendment 8. It is important to underline that Amendment 8, and the personal obligation that it will place on the Lord Chancellor and the Lord Chief Justice, is not to question in any way the commitment and the work done in this field by the current Lord Chief Justice, Lord Judge, which has been considerable. Nor is it to suggest that appointments to the Bench should be made other than on merit. There are highly qualified women and members of ethnic minorities at the Bar, in solicitors’ firms, in the CPS and in the government legal service, and every effort needs to be made to communicate the message that applications from them for judicial appointment would be specially welcomed.

The House heard in Committee and at Report the personal commitment of the noble Lord, Lord McNally, on the issue of promoting judicial diversity. I am pleased that through his efforts the amendment has been tabled on behalf of the Government.

Crime and Courts Bill [HL]

Baroness Jay of Paddington Excerpts

Tuesday 4th December 2012 Lords Chamber

[Lord Pannick]

My Lords, I support the amendments in the name of the noble Lord, Lord Marks of Henley-on-Thames, and the noble Baroness, Lady Hamwee, but I want to speak to Amendment 86D, which arises out of the report of your Lordships’ Constitution Committee. The amendment is in my name and those of the noble Baroness, Lady Jay of Paddington, chairman of the Constitution Committee, the noble Baroness, Lady Prashar, former chairman of the Judicial Appointments Commission, and the noble Lord, Lord Powell of Bayswater, who is also a member of the Constitution Committee. I am very pleased to see the noble Baronesses, Lady Jay and Lady Prashar, in their places. The noble Lord, Lord Powell, apologises to the House that he is unable to be present as he has to be abroad today.

As your Lordships have heard, Section 64 of the Constitutional Reform Act imposes a duty on the Judicial Appointments Commission to have regard to the need to encourage diversity in the range of persons available for selection for appointments. The purpose of Amendment 86D is to ensure that this statutory duty to promote diversity is also placed on others who have leadership roles in relation to the judiciary: that is, the Lord Chancellor and the Lord Chief Justice. As the noble Lord, Lord Marks, has said, the promotion of diversity is one of the greatest challenges facing our legal system. Figures produced by Professor Alan Paterson, a very distinguished expert in the field of judicial studies, show that of the OECD countries, the representation of women in our Supreme Court—one member out of 12—puts us shamefully in the last place in that measure of diversity.

The aim of achieving a more diverse judiciary does not mean reducing the standards for appointment. On the contrary, merit remains the criterion. The task, as Section 64 recognises, is to identify ways of bringing to the fore those highly skilled women and members of ethnic minorities who are in the legal profession—there are very many of them—so that they can be considered for appointment on merit. The amendment would impose a statutory duty on the Lord Chief Justice and the Lord Chancellor in this regard.

The Government have previously argued that a specific statutory duty is not needed because everybody understands the need to move forward on this. There are three answers to that approach. First, Section 64 does contain a specific statutory duty on the Judicial Appointments Commission. It is right and proper to make clear that responsibility does not lie solely with the JAC but also with others in a leadership role. The noble Lord, Lord Deben, who I am pleased to see in his place today, made a very powerful speech on that point in Committee.

Secondly, a statutory provision such as this importantly emphasises to the public the recognition by all those in a leadership role that this is a subject to which priority must be given. Thirdly, and finally, the amendment, and the enactment of a statutory duty along these lines, is no criticism whatever of the efforts made by the current Lord Chief Justice—I know personally that he takes the need to promote diversity very seriously indeed—or of the new Lord Chancellor, or, indeed, his predecessors. They all take these matters very seriously, as I know does the Minister, who is personally committed to promoting diversity in the judiciary. However, they will not always be in post and it is important to take this opportunity to address the matter in legislation.

Amendments 86A to 86C, to which the noble Lord, Lord Marks, has spoken, also have my support, although he acknowledged that Amendment 86C may be less preferable to Amendment 86D. Amendment 86DA in the name of the noble Lord, Lord Beecham, which is also in this group, is to similar effect. Again, it has my support, although, if I may say so, it is optimistic indeed for proposed new subsection (4) of the amendment of the noble Lord, Lord Beecham, to suggest that the problem of a lack of diversity may be cured in five years. I remind the noble Lord that in a recent lecture, Lord Sumption of the Supreme Court suggested that 50 years was more realistic on current progress.

[Baroness Jay of Paddington]

My Lords, I rise briefly, but powerfully, I hope, to support the noble Lord, Lord Pannick, in his amendment and to say that I agree with much of what the noble Lord, Lord Marks, said. As has been said, this point was very much the burden of the Constitution Committee’s report on judicial appointments, which I had the privilege of chairing. Above all, our message was that there needed to be decisive and persistent leadership on this question among those making appointments at every level.

I agree with the noble Lord, Lord Pannick, and regretfully disagree with my noble friend Lord Beecham about the prospects for a timescale of five years to make this happen because one of the things which was absolutely clear in the evidence that we took from a number of people who had held office over a long period was that many of them had a personal commitment to improving diversity, as the noble Lord, Lord Pannick, has reinforced, but that none had actually succeeded in doing that. It seemed unlikely that that was to do with their capabilities but was much more a case of there being resistance within the system. Therefore, the obligation on the Judicial Appointments Commission to have a statutory duty to enforce and support diversity seemed to be one that should properly be extended to the wider group of people in leadership positions, as the noble Lords, Lord Pannick and Lord Marks, said.

The response from the Government to our report was surprising in the sense that it referred almost exclusively to the fact that the one thing the Government did not want to do was to overburden the statute book with this provision. Indeed, the Constitution Committee has returned to this subject in the past few weeks. We heard evidence on 21 November from the new Lord Chancellor, Mr Grayling, who again said that he was absolutely committed to making this objective happen. However, when asked why it did not happen, he said that it would be unfortunate to try to impose more legislation on the statute book when the objective could be achieved through the leadership which he and his predecessors said they were capable of. However, I point out to the House and the Minister that the amendment of the noble Lord, Lord Pannick, which I have signed, requires only 13 words to be added to the statute book. Therefore, it seems to me that the overburdening of legislation is not necessarily a powerful argument for rejecting it. The simple fact is that this is a very straightforward recommendation which could be absorbed into the Bill very easily.

The noble Lord, Lord Powell of Bayswater, who is, indeed, another signatory to this amendment and is not here this afternoon as he is in the United States, when speaking with the new Lord Chancellor, Mr Grayling, in our committee, referred again to the recommendation we had made about putting a statutory duty on him and the Lord Chief Justice. The noble Lord, Lord Powell, said—I think this was echoed by other members of the committee and is the point we all abide by—that it was not that we did not recognise that there had been progress but that,

“it has been at the pace of a pregnant snail”.

We now need to overtake the pregnant snail to which the noble Lord, Lord Powell, referred, and put this on the statute book in these very simple 13 words.

[Baroness Prashar]

My Lords, I rise to speak as the former chairman of the Judicial Appointments Commission. I have put my name to this amendment because I feel very strongly about this issue. I absolutely agree with what the noble Lord, Lord Pannick, the noble Baroness, Lady Jay, and the noble Lord, Lord Marks, have said. I think everyone now recognises that promoting diversity is a common endeavour—a joint effort to be made by the judiciary, the Ministry of Justice, the Lord Chancellor and the JAC. It is therefore important that all three have statutory responsibility, because that will focus their minds. As someone who was responsible for giving effect to the statutory responsibility of the JAC, I was always mindful of the fact that the focus really was on the JAC. Others sat around the table and said, “What is the JAC going to do?”

At Second Reading, the Minister said that this would be gesture politics. This is not gesture politics; it is about getting people to take responsibility, because there are a range of things that are outwith the responsibility of the JAC, where efforts need to be made. If your Lordships heard the debate earlier on the amendment of the noble and learned Lord, Lord Lloyd, concerning part-time working, you can see how formidable the opposition can be. We need to change that culture, impose that duty on others and provide an opportunity so that real progress can be made.