Terminally Ill Adults (End of Life) Bill

Lord Carlile of Berriew Excerpts

Friday 9th January 2026 Lords Chamber

Moved by

[Lord Carlile of Berriew]

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,”

[Lord Carlile of Berriew (CB)]

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.

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.

[The Deputy Chairman of Committees (Lord Geddes) (Con)]

My Lords, the noble Lord, Lord Shinkwin, is taking part remotely. I invite him to speak.

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[Lord Carlile of Berriew (CB)]

I am very grateful to the noble Lord. If he just looks again at paragraph 5 of Schedule 2, it may be that there is a wholesale ambiguity. Sub-paragraph (2) says:

“Decisions of a panel may be taken by a majority vote; but this is subject to sub-paragraph (3)”,


which the noble Lord has read out. Do those two paragraphs contradict one another?

[Lord Pannick (CB)]

No, they do not, because the majority vote does not apply to the question of whether a certificate of eligibility applies. There may be a majority vote on other issues; for example, whether to have a hearing or to require documents, or something of that sort. But on the fundamental issue—the noble Lord is shaking his head, but that is what it says—a majority vote is not permitted on the crucial, core issue of whether a certificate of eligibility is required.

Paragraph 9 addresses another of the concerns the noble Lord, Lord Carlile, has mentioned. It says, in paragraph 9(1), that panels must—I emphasise must—give reasons in writing for their decision.

Finally, it is not irrelevant—and these were points made very powerfully by the noble Baroness, Lady Berridge, if I may say so—that our courts are currently massively overburdened. Of course, judges do their best to hear urgent cases as speedily as they can, but delays are a serious problem in our court system. The Minister will no doubt have something to say about this. When the Committee considers what is the best, most effective and efficient way to address the real issues of independent assessment, it is important to bear in mind that the provisions of the Bill will apply only to those with six months or less to live. To have a system that builds in delays is going to damage the whole purpose of the Bill.

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On the essence of the amendment, as the noble Lord described it, he in effect says that the expanded number of judges should say “Yes” or “No” to an assisted death. The material they have to work on is the evidence they think appropriate. I think he is saying—I am not clear about this—that the High Court judge decides and there does not need to be the two doctors dealing with issues such as firm and settled view. As I read his proposal, the only requirement for the two doctors is that they have to give evidence or have a view in relation to the terminal illness aspect. That is why he objects to the various clauses standing part which involve the first doctor and second doctor.

[Lord Carlile of Berriew (CB)]

I do not want to take up unnecessary time, but the purpose of the judges’ role is to receive the evidence relevant to the issue under consideration. There are many tribunals, such as mental health tribunals, on which doctors serve, but in my view and that of many, where critical issues are being considered, a more satisfactory process, on the whole, is for the judge to hear the evidence and adjudicate on it. To pick up a point made by the noble Lord, Lord Hamilton, as the noble and learned Lord knows, judges are perfectly capable of rejecting medical evidence that is put before them and do so with reasonable frequency.

[Lord Falconer of Thoroton (Lab)]

I take that to be a yes. The position the noble Lord is proposing is that the judge hears the evidence of the doctors on issues, for example, of coercion, capacity and firm and settled view, and then makes the decision. The comparison we have is between what is in the Bill—two doctors each forming a view on the terminal illness decision and the issues of capacity and whether the person has reached a voluntary decision as to whether to have an assisted death, and the panel either endorsing it by giving the certificate or rejecting it—and, as the noble Lord is suggesting, letting the court in effect decide the whole thing. I reject that view because I am absolutely satisfied, although I accept that this issue requires a lot of work and thinking about, that you are much better off having a multidisciplinary approach to somebody making an assisted death decision. It is much better to let the social worker, the psychiatrist, the doctor and the legally qualified person look at the situation and then decide whether somebody should make that decision on assisted death.

The evidence given in Committee—

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[Lord Falconer of Thoroton (Lab)]

Can I answer what the noble Lord, Lord Taylor, whom I greatly respect, has said? I have answered in some degree of detail the main substantive points and I believe that I have dealt with them in a way that is appropriate for Committee. One of the things that one has to do in Committee is focus on the things that really matter and avoid the other things—that is what I have done. I am open to anybody coming to see me. I started this process by writing to individual Peers to say, “Come and see me to raise anything you’ve got.” If there is anything that they want to talk about, I am more than willing to talk about it. However, I very much believe that I have answered in detail the substantive application made for an amendment.

[Lord Carlile of Berriew (CB)]

My Lords, I am very grateful to everybody who has taken part in this debate. I hope your Lordships would agree that, although this debate has taken over three hours, it has been conducted in precisely the spirit that was discussed in the short debate yesterday and that it has justified taking that time. I said yesterday that I thought we should move more quickly in this process and I believe we will be able to do so in the future. This has been an example of doing so on a very important subject.

May I express my grateful thanks to both Front Benches for the way in which they summarised their particular interests in this debate? I thought both were extremely helpful. For those who have seen my noble kinswoman, the Minister, during the year she has been here, I think they will be reassured and understand that she is perfectly capable of erecting Chinese walls that put the Great Wall of China to shame.

A point that particularly caught my attention was made by my noble friend Lord Empey. He happens to be a very valued member of a Select Committee of this House that I chair and I can confirm that he is an expert in labyrinths. He is an expert in finding his way out of labyrinths and it is just possible that, from time to time, he is quite good at making labyrinths longer— I hope he takes that in good heart. He raised a question about whether, as he put it, there should be a “special chamber”. It occurs to me that, given that the purpose of my amendments is to ensure that this is a judicial process that falls into our judicial architecture, there may be room for the sort of discussion that we talked about in yesterday’s debate with the noble and learned Lord, Lord Falconer. One might be able to find a hybrid form of what the noble Lord, Lord Empey, and I have proposed that falls within the legal, judicial architecture.

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My other concern is that a lot of people who work in palliative care have deep religious beliefs and do not wish to discuss assisted dying with their patients. We have to find a way round that in order to ensure that patients are given options but we do not lose important people from our healthcare teams because they are expected to do something that makes them very uncomfortable. We have dealt with that in relation to abortion; we need to think about it in the longer term. I am not proposing an amendment now, but I really felt that I had to speak.

[Lord Carlile of Berriew (CB)]

My Lords, I will speak very briefly in relation to Amendments 186, 251 and 380, all of which were tabled by the noble Lord, Lord Hunt of Kings Heath, and two of which are supported by me. The noble Lord has asked me to give his apologies to the Committee; his wife has suffered an accident and he is, quite rightly, looking after her at home.

I know that the noble Lord, Lord Hunt, would have agreed, as I do, with many of the speeches that have been made to the effect that palliative care knowledge must be a prerequisite in any person’s decision-making. There have been many excellent speeches. I simply refer to two as examples: one from the noble Baroness, Lady Brown of Silvertown, and the other from my noble friend Lord Carter.

I represented a constituency in rural Wales that consists of 839 square miles with no general hospital. I absolutely take the point made by my noble friend Lady Watkins that a great deal of the skill and knowledge in relation to palliative care does not depend on there being a general hospital and can be supplied by nurses; for example, those who work in the area concerned. However, it is extremely important that nobody—whether they live somewhere remote, or they live somewhere populous but feel remote—should be deprived of a contribution from, and knowledge of, palliative care before ever making such a decision.

[Baroness Wheeler (Lab)]

My Lords, it is now 2.33 pm. I suggest that the Committee might like to hear from Front-Benchers now to ensure that we can conclude proceedings in an orderly manner, as planned, around 3 pm.