Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 27th February 2026 Lords Chamber

Finally, I turn to drafting considerations. If, as a matter of policy, the Committee decides to support these amendments, the Government may need to revisit the drafting to ensure coherence with the statute book. I am not going to set out every example of this, in the interest of time, but, for example, Amendment 144A in the name of the noble Baroness, Lady Freeman, contains ambiguous terms. For example, it is unclear what “personalised information” means in practice. That is it from the Government for this group.

[Lord Falconer of Thoroton (Lab)]

My Lords, first, I pay tribute to the noble Baroness, Lady Maclean, who referred to her own personal circumstances. Every one of us who have heard individual personal circumstances realises this is difficult to do, so I pay tribute to that and appreciate what she has done.

Secondly, I ask the Committee’s indulgence for 30 seconds to mention Mr Nathaniel Dye, who has been a campaigner for assisted dying and has been enormously helpful to me. He travelled through the whole process of this going through the Commons and the Lords. Tragically and suddenly, he died at the end of last month and today is his funeral. I know that his family, and everybody who knows him, would appreciate it if his involvement was recognised.

[Noble Lords]

Hear, Hear!

[Lord Falconer of Thoroton (Lab)]

Thirdly, I join with everybody in the Committee in deprecating vicious attacks on the noble Lord, Lord Sandhurst, and the noble Baroness, Lady Finlay. Any one of us who have been involved in this get vicious attacks outside. I agree with the noble Baroness, Lady Fox, when she says there is a slightly testy atmosphere from time to time in here. The best that we can do to try and fight off those attacks is to be as good-natured, funny and warm as we normally are. I am looking forward to the noble Lord, Lord Deben, being warm and funny again.

Fourthly, my Amendment 131A, which the noble Lord, Lord Harper, mentioned, would add that the Prime Minister is to consult the Welsh Ministers before making the appointment. I hope that nobody objects to that; it is what the Welsh Senedd effectively agreed by passing the LCM. When we come to that amendment, I will move it, as I detect no objections.

Finally, I am afraid I will not provide the noble Lord, Lord Moore of Etchingham, with any assistance in relation to the way he conducts himself in the Committee. He always conducts himself, if I may say so, with impeccable manners and courtesy. It is for each one of us to determine what is appropriate and what is not.

I will deal with the amendments quite quickly. They are all to deal with the voluntary assisted dying commissioner provided for in Clause 4. The voluntary assisted dying commissioner will be appointed by the Prime Minister. As my noble friend Lady Levitt, the Minister, has indicated, as long as that stays in, then it will be subject to an open appointment procedure involving an assessment panel.

The idea of the noble Lord, Lord Beith, is perfectly commendable: should a Select Committee look at the appointment? The way that would work in practice is that it would be for the Cabinet Office and the individual Select Committee to agree whether the appointment should be subject to a Select Committee procedure. I would be in favour of it. I do not think it is appropriate to put it into the Bill, but I can see real merit in it. Iwould not only have no objection to it, but I think it is a good idea.

[Lord Harper (Con)]

Given that the noble and learned Lord thinks it is a good idea and that part of the reason—I think the noble Lord, Lord Deben, touched on this—many of us have concerns is that so much of the detail of implementing this is not set out but left for decisions, what is his objection and rationale for not coming forward with an amendment and putting in the Bill so that it has to be done by a pre-appointment hearing rather than leaving it to a decision?

[Lord Falconer of Thoroton (Lab)]

With respect to the Select Committees in the other place, they should be consulted and decide whether they want it.

In the amendment from the noble Baroness, Lady Cass, she draws attention to the fact that the assisted dying commissioner has a function under the Bill. That function is to receive documents, make appointments to the assisted dying panels, make arrangements in relation to such panels—this means that he or she is responsible for making sure the process runs properly—and determining the applications for reconsideration of panel decisions. That means that, if a panel says no to an applicant who wants an assisted death, the voluntary assisted dying commissioner has the power under Clause 18 to say that another panel should look at it. He or she has that power in a semi-judicial function if there is an error of law in relation to it, so that is a function.

The commissioner also has a function to monitor the operation of this Act. If noble Lords go to Clause 49, they will see that he or she is given the power to make reports, give an annual report and identify things that may be of significance in relation to it. One should not confuse this role with monitoring, for example, the performance of doctors in relation to their role. I do not see the very specific functions and the obligation to monitor and give reports, as in any way in real conflict. I think they could be done by the same person, particularly if there is a deputy to be appointed as well. I note what the noble Baroness said, but I do not think it is necessary to make provision in the Bill for a separate role for somebody to do both. I have thought very carefully about it.

The noble and learned Lord, Lord Garnier, has been kind enough to indicate that he has had to leave, but I will deal with his point. He wants not the Prime Minister but the Lord Chancellor to make the appointment. The Prime Minister and the Lord Chancellor are both political appointments. We have chosen the Prime Minister because—even though I think there is practically nobody more important than the Lord Chancellor—the political world, for reasons I am completely unable to understand, regards the Prime Minister as more important. We have chosen the most important person in the Government to make the decision and, with the greatest respect to the noble and learned Lord, I do not think we should change that.

The noble Lord, Lord Weir, asked why we should have a judge. I am a great admirer of judges, and I declare an interest in that I am married to a judge. The reason why we have a judge is twofold. First, ex-members of the Supreme Court, the Court of Appeal or the High Court of England and Wales—it is England and Wales that we have in mind—have high standing. They are regarded as people of calibre, which is why they are put in. Secondly, one of the specific functions in the Bill is to consider whether the rejection by a panel is an error of law. That seems to us to be appropriate to be dealt with by somebody with high legal experience. Separately, the commissioner is somebody who has to issue rules and a process for dealing with it. That is the reason for doing that.

[Lord Deben (Con)]

If that is the argument the noble and learned Lord puts forward, with which I entirely agree, does it not lead him to understand that the proposal of the noble Lord who spoke unwillingly earlier, to put this back where it was in the first place—basically, under the control of judges—would be a very good thing to do? Why has he not accepted that most of us would be able to support that, and therefore we would cut down the time we are spending on dealing with the situation when it is not there? If it is necessary, as he says, why not do the whole hog?

[Lord Falconer of Thoroton (Lab)]

We have changed from a judge to a panel because, after considerable debate in the Commons, it was thought that having a legal person in the middle, a psychiatrist and a social worker gave greater reach and understanding of those issues. We debated that issue in full over a particularly long period of time on an earlier Friday. I am more than delighted to redebate it—however, I think that issue has been laid to rest. That does not mean one does not have to have a process whereby the doctors pass their findings to a panel, and that is the role, in part, of the assisted dying commissioner.

[Lord Harries of Pentregarth (CB)]

The noble and learned Lord talks about putting it to rest, but for many of us that issue is not at rest. I certainly supported the noble Lord’s Amendment 120, and I got the impression he was still thinking about its possible value—so, as far as many of us are concerned, it has not been put to rest.

[Lord Falconer of Thoroton (Lab)]

I was pretty clear in my remarks that I favoured the panel process. When I say that it has been laid to rest, I accept that the House may take a different view from me, which I would completely respect. To deal with that, obviously there would be a vote on Report when we would decide whether we wanted the panel or the court process. I hope the issue has been laid to rest, but if it has not and I lose, so be it. I earnestly hope that we get there and reach a decision in relation to it.

The noble Lord, Lord Moylan, would like to replace the word “principal” with the word “sole”. I make two points in relation to that. First, all the assisted dying commissioner can do is that which is prescribed in the Bill, because he or she is a creature of statute. Therefore, there is nothing more that he or she can do beyond that.

The word “principal” is used, not “sole”, because we do not want to get into a completely barren argument subsequently about whether something that the commissioner does as collateral to the principal functions is covered. That is why “principal” is used and why I would not be in favour of changing the wording of the Bill in relation to that.

[Lord Moylan (Con)]

That point seems to me to be covered by the general power of the assisted dying commissioner under Schedule 1 to do anything that is appropriate or necessary for carrying out his functions, so I do not think that is a reason for not using the word “sole” and giving some assurance to those of us who are concerned about creep.

[Lord Falconer of Thoroton (Lab)]

I think we will have to disagree on that. It is the normal way for that to be dealt with in drafting, so I am content with it. I am sorry to disagree with the noble Lord, but that is my view.

Amendments 135 and 436 from the noble Lord, Lord Frost, would place a duty on the assisted dying commissioner to check that all the paperwork is in order. Again, I have thought very carefully about that. The role of the commissioner, as far as the panel is concerned, is to pass the two reports on to the panel once he has received them from the doctor, for the panel then to consider whether that case is in order and meets the criteria—is the panel satisfied that there is no coercion and is it satisfied on capacity? I think it is neither appropriate nor necessary to add yet a further safeguard in that respect, because that is why the panel is there. It would lead to overlap and unnecessary delay without, in practice, any additional safeguard. The noble Lord, Lord Evans of Rainow, supported that. For the same reasons, I would reject his amendment.

The noble Baroness, Lady Finlay, made a point about conflicts of interest. There would obviously be a conflict of interest if the assisted dying commissioner had a financial or commercial interest in any sort of provider of assisted dying services. That would be covered by the principles to which the noble Baroness, Lady Levitt, referred in relation to the way in which the appointment would go. I completely agree with the point by the noble Baroness, Lady Finlay, but I do not think there is a need to put anything into the Bill in relation to it.

A number of noble Lords have referred to the risk of mission creep—the idea that an enthusiast or proponent of assisted dying would operate in an inappropriately biased way. All that the assisted dying commissioner can do is act in accordance with the terms of the Bill. As the noble Lord, Lord Carlile, said, if for example the commissioner stuffed a panel with people he knew would take a biased view, he would be acting both improperly and illegally under the terms of the Bill. As the noble Lord said—and I agree with this—Schedule 1 opens the door to every sort of judicial review if that were the position and people became concerned about it. That goes to the amendment from the noble Lord, Lord Wolfson, which would provide for complaints to be made to the Prime Minister. Of course you could make complaints to the Prime Minister, but you certainly would not need the Bill to make that possible; there would be political accountability for the conduct of the commissioner, because the Prime Minister has made the appointment. Equally, there would be legal accountability in the form to which the noble Lord, Lord Carlile, referred.

[Lord Hamilton of Epsom (Con)]

Given the noble and learned Lord’s encyclopaedic knowledge of the statute book, can he tell us what went wrong with the Abortion Bill, which morphed without parliamentary consent, much to the concern of its sponsor, Lord Steel.

[Lord Falconer of Thoroton (Lab)]

Would the noble Lord mind if I did not, as I think what one has to do is focus on this particular Bill?

[Baroness O'Loan (CB)]

It is all very well talking about access to judicial review when things go wrong, but the reality for the ordinary man in the street is that judicial review is largely out of the realm of possibility: it just costs too much. Therefore, we need to make sure that things are so laid down in the Bill that there do not have to be multiple requests for judicial review. For that reason, I ask the noble and learned Lord to consider this further.

[Lord Falconer of Thoroton (Lab)]

I could not agree more with the noble Baroness, Lady O’Loan. That is why, in addressing these issues, we have been very specific about what the voluntary assisted dying commissioner can do in both Clause 4 and the schedule. What is more, that is why we have such a limited panel that can be made for the voluntary assisted dying commissioner. It has to work, and that is why it has been drafted in this way. The noble Baroness is absolutely right that judicial review is an expensive process, and it provides a guardrail, but ultimately there must be sufficient detail in the Bill to give the public confidence that the system will work. That is why we have, for example, restricted it to a Supreme Court judge, a Court of Appeal judge or a High Court judge. We are absolutely on the same page on that.

I turn to the noble Lord, Lord Sandhurst. My understanding of his Amendment 430—although I may not be correct—is that, where the two doctors agree, the assisted dying commissioner, if he or she agrees, can then short-circuit the need to go to the panel. That is my understanding of the amendment, which is interesting. However, my anxiety is that we would then, in every single case, almost, be getting rid of the panel. The position would be that you only ever get to the panel if both doctors have agreed. The sponsors presented the Bill to this House on the basis that, in every case, the safeguard is—to shorten it—two doctors and a panel. So I respect the thinking, because it is trying to streamline the process, but I do not think that it is appropriate, and it would undermine the safeguards.

[Lord Sandhurst (Con)]

The noble and learned Lord is right. When I introduced the amendment, I did say that there might be problems with it, but I thought it was something that should be looked at.

[Lord Falconer of Thoroton (Lab)]

Yes, I understand that.

[Baroness Berridge (Con)]

I am grateful to the noble and learned Lord for his realistic acceptance of the difficulty of judicial review as a remedy for many people. I would be grateful if he could also reflect on the situation with family members: if the panel approves assisted dying, their remedy to challenge that is judicial review. We heard evidence in the Select Committee, particularly from Sir Nick Mostyn, that that is just fine. Many of us, particularly myself, do not feel that it is satisfactory for family members to have to resort to judicial review if they have evidence, for instance, that there has been coercion. Will the noble and learned Lord reflect on that, which may avoid further amendments later down the line?

[Lord Falconer of Thoroton (Lab)]

I will certainly reflect on that, and may I express my gratitude to the noble Baroness, Lady Berridge, for facilitating the meeting with Professor Ruck Keene? It was incredibly helpful, and I genuinely appreciate it. Yes, I will reflect on what the noble Baroness said. I suspect there will be a similar answer to the one I gave to the noble Baroness, Lady O’Loan: we have to be as specific as we possibly can in the Bill, because judicial review is difficult for normal people, particularly in those circumstances. That is why, whether it is a court system or any other system, we must try to make this as clear as possible in the Bill.

Amendment 146, in the name of the noble Baroness, Lady O’Loan, says that the assisted dying commissioner should be able to investigate patterns. In particular, she cites what may happen in relation to care homes. I agree that the assisted dying commissioner should have that ability. He does have that ability under Clause 49(1)(a), (b) and (c); so, for example, if he is concerned about a pattern developing in care homes, he already has the power to monitor that.

The noble Lord, Lord Morrow, asked whether there should be a further Equality Act assessment. I dealt with that last time and said I had looked carefully at what the former commissioner had said and I did not think that a further impact assessment was appropriate, because, if you constantly make particular points that are covered in general, you are never going to get to an end of it. I do not think that the points the commissioner raised were ones that had not already been considered in the impact assessment.

[Baroness O’Loan (CB)]

I accept that there is a general power in Clause 49 to look at what is happening in relation to the regime, but I say again that there is an issue raised by Amendment 146 which definitely requires further consideration. I ask the noble and learned Lord to reflect again not just on the monitoring of delivery of the service, but on the arrangements for the delivery of the assisted dying process in care homes, where people are vulnerable, isolated and largely unsupported in many cases. There is a very serious problem, given the remarks of Age UK, care homes, et cetera.

[Lord Falconer of Thoroton (Lab)]

I will certainly reflect on it, but the issue of somebody who is isolated and alone in a care home is why there are five steps before you get to assisted dying, and the question is whether the sequence of doctor number 1, doctor number 2, doctor number 1 again, the panel, doctor number 1 again is a sufficient safeguard. My own view is that it is a sufficient safeguard and it is particularly focused on protecting the vulnerable.

[Baroness O’Loan (CB)]

My Lords, may I just—

[Lord Falconer of Thoroton (Lab)]

I should get on. I apologise, but the noble Baroness has had a very fair crack at that particular whip.

I come to the question of the noble Baroness, Lady Maclean, which is: should there be a register of the interests of the assisted dying commissioner? I understand what motivates that. I do not think that that is necessary because, as my noble friend Lady Levitt said, that is something that would be dealt with by the normal process governing conflicts of interest. There would not necessarily be a record of it, but it would be something that would have to be disclosed before a decision was made.

The noble Baroness, Lady Grey-Thompson, raised various issues in relation to the appointments process, but I hope that I have dealt with them by referring to the process that would apply. I think I have dealt with all the other points, including the point from the noble Earl, Lord Howe, about Amendment 913A.

[Lord Harries of Pentregarth (CB)]

I am still genuinely not quite clear who the noble and learned Lord thinks the commissioner, and indeed this whole process, is ultimately accountable to. With the rejection of the amendment from the noble Baroness, Lady Cass, and various others, I am trying to work out who ultimately is going to monitor this if there is public concern about the law being interpreted much too loosely, or things are going wrong. Who is going to keep a permanent eye on what is happening?

[Lord Falconer of Thoroton (Lab)]

The nature of the appointment is that it is an appointment by the Prime Minister. He is politically accountable for the appointment. The assisted dying commissioner, like so many other appointments made by a Minister, has legal duties, but, if you are looking for political accountability, it is the person who is responsible for his or her appointment. That is the way that public appointments operate.

[Baroness Freeman of Steventon (CB)]

I am sorry, but the noble and learned Lord has not addressed Amendment 144A.

[Lord Falconer of Thoroton (Lab)]

I apologise. The noble Baroness, Lady Freeman, emphasised in her Amendment 144A the importance of providing impersonalised information and assistance in relation to reaching a structured decision. She speaks from considerable experience, and I express my gratitude to her for talking to me about it and providing me with real assistance.

That would have to be dealt with by codes of practice issued by the Secretary of State under Clause 39. If there were problems—for example, the codes of practice were thought not to be adequate or were giving rise to problems—it would be for the assisted dying commissioner, under Clause 49(1), to report or indicate that something was wrong. The points the noble Baroness makes are important and I apologise for not dealing with them.

[Baroness Coffey (Con)]

The noble and learned Lord did not speak at all to his Amendment 480 in this group. Is he planning to address it later in group 3? I am conscious that he did not particularly address my amendments, but I assume it is because he disagrees with them, which I understand. However, Amendment 480 has not been talked about at all. It is okay if he wants to address it in group 3.

[Lord Falconer of Thoroton (Lab)]

I apologise. I will talk about it in group 3.

[Baroness Cass (CB)]

Long speeches are unpopular at the best of times, but particularly as I now stand between noble Lords and lunch, so I will try not to make one. It has been a very useful group. We have had a lot of discussion about the appointment process, transparency, conflict of interest and how we ensure public confidence in the commissioner. I think we have reached a conclusion on that—one which may not satisfy everybody, but we have come to a place on it.

Beyond that, a lot of the concern has been about things that fall through the cracks, such as my noble friend Lady Freeman’s concerns about patient information, data, risks and patterns in care homes, and family involvement, which is important. My reflection is that I accept the noble and learned Lord’s view that we do not need to separate a delivery and a monitoring role, but it still seems as if the assisted dying commissioner, even acting with the greatest integrity, needs eyes in the back of his or her head to pick up on issues such as local fluctuations or other aspects of concern. I look forward to hearing about other ways in which things are going to be monitored carefully, whether by the CQC or NHS England, as the noble and learned Lord suggested, so that we can be reassured on those matters. With that, I beg leave to withdraw Amendment 122.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

131A: Clause 4, page 2, line 29, at end insert—
“(3A) Before making an appointment under this section, the Prime Minister must consult the Welsh Ministers.”Member's explanatory statement
This amendment requires the Welsh Ministers to be consulted, before appointing a person as the Commissioner.

--- Later in debate ---

[Lord Deben (Con)]

My Lords, I did not intend to speak on this particular amendment until something happened at lunchtime. I have to apologise to the noble and learned Lord, because I am not sure that I can make a joke about it, as he has requested me to in any speech I make. The fact of the matter is that at lunchtime I discovered that my local health trust has withdrawn its payment to Marie Curie, which means that there will no longer be Marie Curie nurses helping people in the final months of their lives; that support has been withdrawn because of the tight budgets in the National Health Service. I am appalled that we are in that situation, but it reminds me very clearly of the fundamental problem of a single-issue Private Member’s Bill, because it asks us to consider something not as one of a series of priorities among which government has to make choices, but as something on its own. That inevitably is a real problem.

The second problem is that anyone who has been a Minister knows how the Treasury works. If you ask it to give you some money to spend and then say, “But we’re going to make these savings”, it always counts the spending and refuses to acknowledge the savings. That is a Treasury mechanism that we have all learned—and I see that a former Health Minister knows precisely what I mean.

The problem with this issue is precisely that: money will have to be spent, but the savings—let us leave aside whether this is a suitable balance—will certainly not be considered, which is why the Deputy Health Minister said there would have to be “reprioritisation”.

So I come to this Committee having been shocked at lunchtime. Perhaps the Chief Whip should not have allowed us off for lunch: then I would not have been able to see this. However, the truth is that I am shocked by the fact that one of the most important palliative care services is now going to be ceased for the part of the country in which I live. That therefore brings me back to the amendment. I think we have to say to ourselves, very clearly, that, if we are proposing to spend money on this, it is quite clear from the Government that that will mean “reprioritisation”, which actually means cutting other money in order to save enough to pay for this.

I hope the noble Baroness will not be upset by this, but I do not understand how the Government fail to do this: in all the advice they give us, they refuse to tell us how much they think this will cost. That is a duty of the Government. They should tell Parliament, if it is a Private Member’s Bill of this sort—I will give way.

[Lord Falconer of Thoroton (Lab)]

We produced an impact assessment of the Bill with detailed costings, provided by the health service, so to suggest to the Committee that the Government have not provided the costing is inaccurate.

[Lord Deben (Con)]

We have already told the noble and learned Lord what we think about the impact assessment. We have been asking for an updated impact assessment which takes into account the debates we have had and the assessments we have made. The Government have said they will not do that—that is what I am referring to. I want to see an absolutely up-to-date impact assessment based on the debates in which we have expressed and explained real issues which have not been raised before, so that we can, first, know how much it costs and, secondly, begin to ask ourselves, “Is this the priority?”

I will end on this. Is it a priority to provide people with the free chance to kill themselves and not provide people with Marie Curie nurses so they may live the end of their lives in a happier and better place? Anyone who suggests that we get that priority right by funding assisted suicide rather than Marie Curie nurses seems to me to be saying something that the public would not accept. One of the problems with this whole debate is that we have never been prepared to tell the public what the real effect of this is. Therefore, I very much support this amendment—not that I would normally support the kind of position my noble friend raises in his particular way, but he did it most elegantly. I support it entirely because, at long last, we are talking about the facts and what this really means for the people of Britain.

--- Later in debate ---

[Baroness Levitt (Lab)]

My Lords, I will speak only to the amendments about which the Government have significant operational workability concerns. Before I do so, I want to say a few words on the general points about funding raised by a number of noble Lords, including the noble Lord, Lord Harper, the noble Baronesses, Lady Fox and Lady Grey Thompson, and others.

I make it absolutely clear that I entirely understand the point that the noble Lord, Lord Deben, is making and why it might seem as though the choice is being restricted if you do not actually know the amounts involved, but I reiterate that it is for Parliament to decide whether this service should be provided and, if so, whether it should be publicly funded. If that decision is made, the Government will fund it. I am not evading the issue when I say that I simply cannot explain how that will be done, because that would be to put that ahead of Parliament’s own decision. We cannot possibly start, for example, putting aside a war chest for something that Parliament may decide that it does not want. As far as priorities are concerned, as I say, it is not a matter of evasion; it is a matter of principle.

It is also not right to assume that funding this, if that is the will of Parliament, will involve taking money away from other parts of the health service. That is not what the Government are saying; we are simply saying that the funding will be made available if that is what Parliament wants. My noble friend Lady Merron, the Health Minister, has written twice on this subject, and those letters are available in the Library for anybody who is interested. As for palliative care, there is an absolute commitment by the Government to increase funding for palliative care and make sure that palliative care is offered properly, irrespective of what happens in relation to this.

As for the noble Lord, Lord Deben, of course I am not upset by what he says about the impact assessment—as if I would ever be upset by anything that he says—but we are doing what is usual, which is to deliver the impact assessment at the outset and, as with other Bills, a further updated impact assessment will be provided following Royal Assent, if we get to that stage. There is a logic to this, because there are so many different elements to what has been debated in Committee that to provide a costing for each and every one would probably keep us here for as long as we are here debating all these amendments anyway. It simply cannot be done. It is not practical. I am not upset, but I am simply saying that we cannot do it and we will not do it until Royal Assent.

Turning to the amendments in the name of the noble Lord, Lord Moylan, these are collectively intended, as we have heard, to prevent the establishment and running of this service being publicly funded. Your Lordships may wish to note that, if passed, these amendments would create an internal inconsistency with Clause 41(5), which requires that the provision of voluntary assisted dying services must be provided free of charge.

Amendments 835 and 868, in the name of the noble Baroness, Lady Fraser, propose a delivery model whereby the Secretary of State must make regulations for the assisted dying service, which would be delivered only by private providers. The key workability risk here is that the new clause created by Amendment 835 would duplicate Clause 41, but with additional constraints, and that would create legal uncertainty, when the Act is looked at in the round, about the limits on the Government’s powers when commissioning a service. The Committee may also wish to note that this amendment may have implications for the devolution settlement, as Wales and the Welsh NHS trusts are implicitly included, which potentially constrains the powers for Wales in Clause 42.

[Lord Falconer of Thoroton (Lab)]

This group concerns the question of funding. First, the noble Lord, Lord Moylan, raised the question: should the people who benefit from this have to pay for it? Secondly, the amendments from the noble Baroness, Lady Fraser, raised the question of whether it should be free to the patient. Could it be provided by private providers? Separately, there were questions along the lines of: will this change the nature of the relationship between the doctor and the patient? Finally, there were questions over whether this might lead somebody to urge people to take an assisted death.

I start with the provisions of the Bill at the moment, which, subject to the amendments to Clause 41 that I propose, require that the integrated care board, or NHS England or the Secretary of State, commission the services. A separate provision, in Amendment 753A, makes provision that, in practice, they have to be free for the person getting them.

The principle that underlies that approach—my noble friend Lady Levitt is right and this is the choice that the Bill makes—is that it will be available free to somebody who wants it and who satisfies the conditions. The reason for that is that we do not want to create a two-tier system where you can have an assisted death only if you can afford to pay for it.

In evidence to the Commons Public Bill Committee, Dr Michael Mulholland, the honorary secretary of the Royal College of GPs, said:

“Whether it occurs in the NHS is not our decision, but we would be very concerned about health inequalities creeping into any part of the health service … If the Bill comes through, we will want to make sure that there is not a differential in who is able to access it”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 30/1/25; col. 278.]


The amendments of the noble Baroness, Lady Fraser, do not affect that. The amendments of the noble Lord, Lord Moylan, do, and it is for that reason that I oppose them.

I will first deal with the amendments of the noble Baroness, Lady Fraser, which would restrict the model that could be used to private providers only—albeit that she is not saying that it should not be free. I agree with what my noble friend Lady Levitt has said, to the effect that the way it is delivered should not be restricted. I would therefore not be in favour of the amendments of the noble Baroness, Lady Fraser, in that respect.

[Lord Harper (Con)]

Does the noble and learned Lord not see that the argument that he has just made in favour of having a fully funded assisted suicide service is exactly the mirror of the argument that I made on palliative care? The argument from the quotation that he gave is exactly the argument that I made. If you fully fund this proposal but you do not fully fund palliative care and make that universally available at high quality, you have an inequality where wealthier people can get palliative care and poorer people cannot. On previous occasions, the noble and learned Lord has made it quite clear that he is comfortable with those being reasons for people seeking an assisted death. I do not think that they are. You have to fund both services on an equal basis. Does he agree?

[Lord Falconer of Thoroton (Lab)]

The impact assessment suggests that in year 10, assuming the highest possible cost, it would cost £37 million in total to do assisted dying. This is not by reference to any savings and it includes not just the health elements but also the panel and the assisted dying commissioner. It is plain that palliative care should get as much funding as possible. It is patchy throughout the country and it needs more funding. For me, it is not right to delay the option of assisted dying, particularly when the amount of money that we are talking about to fund assisted dying is so much less than that amount of money, which I would fully support being provided as much as possible. I understand what the noble Lord, Lord Harper, is saying. I am fully behind him if he is saying, “Let’s all put our backs into getting as much money as possible for palliative care”. But I do not accept the argument that the inadequacy in some parts of the country of palliative care is a reason for delaying the assisted dying Bill.

[Baroness Finlay of Llandaff (CB)]

Just as a point of information, does the noble and learned Lord accept that there is evidence that if specialist palliative care was available across the country on an equal basis, that in itself would result in a saving of around £800 million a year, because patients would be getting better care and unnecessary investigations and so on would be avoided? So there is a cost transfer. The problem at the moment is that we have areas without services and therefore patients do not have choice. If we are talking about patient choice, there must be equipoise in that choice argument.

[Lord Falconer of Thoroton (Lab)]

I am absolutely sure that if there were proper specialist palliative care of the highest quality—we would hope that there would be—it would lead to savings. I honestly do not think that the £37 million cost is a reason for delaying this because it would in some way hold back the provision of better specialist palliative care, which is something that we are all in favour of.

--- Later in debate ---

[Baroness O'Loan (CB)]

I am concerned about the figure of £37 million being articulated as the absolute cost of this service. I find it somewhat difficult to believe that it could be the cost. If we have regard to the costs of similar public organisations that are already set up, the running costs alone run into millions. We are going to be talking about a national service for England and Wales that, presumably, will be provided in the patient’s location—the death will take place not where we want it but where they want it—and therefore there will be a lot of costs. I firmly believe that they have not been costed into the figures that the noble and learned Lord and the Minister have given us.

When I go shopping, I see whether I can afford what I want to buy. Yet we, as a Parliament, are being asked to decide whether we want to do this. One of the things that we should responsibly take into account is cost, otherwise we would not have had an impact assessment. We are being asked to consider it on the basis that it will cost £37 million and that that is peanuts—well, I wish I had £37 million pounds put into palliative care now. This is not an accurate figure.

This is the only point that I want to make. Can the noble and learned Lord put his hand on his heart and say to me that he really believes that this is what the service will cost, given the number of people who may avail of it and the number of safeguards that need to be introduced into the Bill because of its very significant flaws?

[Lord Falconer of Thoroton (Lab)]

First, I am grateful to the noble Baroness, Lady O’Loan, for her speech, rather than a question clarifying something. Secondly, as I have said, the figure of £37 million has been provided in the impact assessment for the 10th year. I note the points that the noble Baroness has made. Maybe the right course for her is to send a detailed letter raising the questions with the Department of Health and Social Care and the Ministry of Justice, because it is their assessment—and I do not dissent from it.

[The Archbishop of York]

I entirely accept that those who are proposing the Bill do not propose it for the reason of trying to save money. I also entirely accept the desire from everyone in this House for better-funded palliative care. However, I need something to be explained. Taken that palliative care is inadequate and underfunded, and taken that there are huge regional variations, what I do not understand is the noble and learned Lord’s confidence that this will not lead to coercion of vulnerable people in places where palliative care is not available and cannot be afforded, which will lead to unintended consequences. I entirely accept that he does not want those consequences either, but I ask him to give me some confidence, if he can, that this will not follow.

[Lord Falconer of Thoroton (Lab)]

I will try to give the most reverend Primate confidence. First, decisions about treatment at the moment frequently have to be made in the context of what everybody in this Committee would think was inadequate palliative care. There is scope for coercion there with no safeguards. Secondly, people have the ability to go abroad to get an assisted death, and there is scope for coercion there. In both those situations, there are no safeguards whatever. The landscape in which those choices are made, whether about continuing other treatment or about going to Switzerland, has absolutely no protections whatever. This Bill provides five levels of protection. I am completely satisfied that this is a safer system than the current law, and I very much hope that gives the most reverend Primate confidence that the Bill is the right thing to do.

On the funding of palliative care, I very much hope that the Government and other people will provide more money for palliative care. The experience in many countries is that the introduction of an assisted dying Bill leads to an increase in the amount of palliative care, because people debate and think about how you die. I hope those things put the most reverend Primate’s mind at rest. The risk for coercion is already there, and this provides safeguards. I hope the introduction of the Bill will produce more money for palliative care, but unfortunately I cannot give the most reverend Primate any guarantees of that.

[Lord Moylan (Con)]

My Lords, I shall be very brief. I am grateful to all the noble Lords who spoke in this short and valuable debate. I tabled these amendments in the first place to give the noble and learned Lord the opportunity to explain why this proposed service should be funded by the taxpayer—the unwilling taxpayer, it might be said, in the case of those who have a principled objection to it. I listened very carefully to what he said, and he gave one reason only: failure to make it available for free would contribute to an increase in health inequalities. That proposition rests entirely on the assumption that this is a health treatment. It is not; it is poisoning people. It is completely unpersuasive that this should be justified as contributing to health inequalities or otherwise. For that reason, I would certainly want to bring these amendments back on Report and invite the House to take the view that we should not fund this from public resources. In the meantime, however, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

May I intervene on that, given that my amendment is being questioned? Let me explain. When looking after people who are parents, a conversation is often about what the children know. Telling the children about someone’s impending death is extremely difficult for most parents. Usually, it is because the person who is ill wishes to protect those children; they think that, by not telling them and preparing them, they are somehow protecting them. The way children are informed needs to be age appropriate and appropriate to where that child is.

I do not suggest in this amendment that it should be an agent of the state. The amendment refers to making

“adequate arrangements for another person”.

That could be anybody. It is about asking whether they have somebody who will inform those children—or not—about the death. As for bereavement support, it might simply be about telling them in person and letting them talk about it for an hour over a cup of tea, or it might be much longer, depending on the needs of the individual—because bereavement is a very individual thing as well.

I am concerned that we could legislate and somehow believe that, by someone having an assisted death, rather than a death for which there has been preparation, the impact on any children in a family will be less, because the evidence is that it will not.

[Lord Falconer of Thoroton (Lab)]

I do not know whether I am allowed to intervene, because I do not know whether the noble Baroness is intervening or speaking to her amendment.

[Baroness Finlay of Llandaff (CB)]

I am coming to my amendments later.

--- Later in debate ---

[Baroness Berridge (Con)]

My Lords, I will speak to Amendment 462A in my name, which outlines that, before approving any application, the panel must be satisfied that the person requesting assistance has had the requisite assistance from the local authority in relation to the delivery of statutory services.

The amendment deals with the problem caused by the basic principles of the Bill, which is based on a very narrow concept of procedural autonomy. If it is only this that matters, then for the panel, as long as they can tick the boxes saying there is no coercion or pressure, and that the person has capacity et cetera, then the application is approved. It is approved under the current drafting of the Bill even if the panel believes and has evidence that the person is applying because, for instance, their housing is inadequate, the care package fell apart, they are actually grieving for other relatives or they are poor.

This amendment would mean that, before any such approval is made by the panel, it must be satisfied that the local authority has received a referral to look at the statutory provision of services for the person. In relation to this, I am grateful that the noble and learned Lord enjoyed his meeting with Professor Alex Ruck Keene, because he has put this a number of times in written and oral evidence about the concept of the panel and its powers, and it is worth quoting:

“You have to think … carefully about what purpose any … of this oversight is actually serving societally, if the oversight panel, whether that be a judge or a panel, cannot decline to approve an application if it considers that the reason the individual is seeking assistance in dying is because of service provision failures by the statutory bodies responsible for meeting their health and social care needs”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 28/1/25; col. 96.]


I know the noble and learned Lord has answered many questions and commented about the access to this service for the poor. This is a different question. I am not saying that poor people should not be able to apply. I distinguish that from a situation where the panel has concluded on the evidence that, although the person satisfies all the tests under the Act, the evidence is that they are before the panel because they are poor. There are many instances of this from other jurisdictions, for instance, particularly in relation to homelessness. People have come forward for MAID in Canada because they are homeless, which is available because it is not just for terminal illness in Canada.

In relation to the amendment, it may be that the drafting needs to be different; it might be that this needs to be done not just before the provision but can be twin tracked, so that you approve the application but at the same time make sure the local authority deals with the provision of services. I hope the noble and learned Lord will take seriously this additional power for the panel to ensure that people are there for the reason that they are exercising their autonomy in relation to the Act and not pressured because of lack of statutory services.

[Lord Falconer of Thoroton (Lab)]

The noble Baroness refers to it as an additional power but, as I understand the amendment, it says that this is an additional requirement for a certificate of eligibility.

[Baroness Berridge (Con)]

I am grateful to the noble and learned Lord. I accept that drafting changes might be needed between now—

[Lord Falconer of Thoroton (Lab)]

The noble Baroness says, “drafting changes”, but there is a fundamental difference between saying that this is an additional condition that the panel has to be satisfied of and giving it a power. I understand the noble Baroness’s amendment to be saying that an additional requirement needs to be satisfied.

[Baroness Berridge (Con)]

When I mention drafting changes, I mean in relation to the timing of this. As drafted, it would need to be done before the application is granted, and it may be that the requirement to go to the local authority could be at the same time as having approved it, not before. But, yes, this would be an additional requirement on the panel.

I hope the noble and learned Lord the sponsor or the noble Baroness, Lady Finlay, can help with my second point on the principle of the Bill. The noble Baroness, Lady Hayter, referred to the situation based on autonomy: the individual wants to do this and does not want to tell relatives. If we are strict purists about that—we had evidence on this at the Select Committee—then with this Bill there could be a situation where the first time anyone hears about the death is when the medical examiner telephones a relative.

I have tabled amendments in a different group on a requirement to nominate next of kin who are over the age of 18. I think it would be useful for the Committee to know what the situation is if someone acts completely autonomously like this and the body is there. Does the noble and learned Lord the sponsor need to bolt on a provision so that there is a public health burial? That is the continuation of the logic of this that you can do this alone, with no one in your life knowing about it. Therefore, to exercise that autonomy fully, there would need to be a public health burial, with everything done before anyone in the family knows. That is a conceptual difference. The noble and learned Lord and I spoke about this in a meeting in relation to what the law is, and it would be good for him to clarify the situation. Can the medical examiner not call anybody and go forward with a public health burial?

--- Later in debate ---

In the case of many suicides, the revelation—being seen—is a plea for help from those who love you most. It would take an extraordinary perversity to refuse such an amendment. That would be to ignore an opportunity to prevent perhaps the most terrible suicide of all—the deliberate plan to kill yourself through a lethal substance, enabled and supported by the state. I might add that it will be supported with all the bureaucratic paraphernalia of permission and enforcement and funded, as we have repeated in this and earlier debates, by the taxpayer. It would ignore the impact on those on whom you have depended in one way or another in your life and on whom you may still depend.

[Lord Falconer of Thoroton (Lab)]

The noble Baroness, Lady Lawlor, will know that there are quite a lot of cases at the moment where the first that somebody hears of the suicide of someone they love is when they are told about their death. I have two examples in mind. One is Mr Paul Blomfield, who described his father hanging himself and not involving him because he feared that he might be investigated by the police. The other is the wife of Stuart Broad’s father, Chris Broad, who hoarded pills and, as a result of her not wishing to involve her husband, the first he heard of it was when an email came through from her. What does the noble Baroness say to those people under the current law?

[Baroness Lawlor (Con)]

We are proposing and debating a piece of legislation at this moment. We are concerned about the safeguards in the current proposed piece of legislation. The noble Baroness, Lady Gray of Tottenham, has proposed that the reviewing panel must raise with the person considering assisted suicide whether they have discussed it with their nearest and dearest. That is a different matter from what the noble and learned Lord has raised. We are discussing a piece of proposed legislation and I am discussing an amendment proposed by another noble Lord.

It is very important for those on whom we have depended and may still depend that we form a society and, as human beings, give support and love to one another—a mother or father who wishes only to support their child, perhaps terminally ill, to live their life as best they can; a daughter, son or sibling supporting their loved parents, sister or brother; or a spouse or best friend.

I do not agree with the premise of the Bill that we are autonomous human beings to dispose of ourselves just as we wish. Whatever freedom we have as human beings is rooted in a network of social relations and responsibilities, especially to our kith and kin. We therefore need to do whatever is possible to ensure that a person’s ultimate decision to end their own life is taken within a familial and social context. This amendment, which I support, promotes that end.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

Perhaps the noble Baroness might be relieved to note that I do not intend to move my amendment. I would like to speak to it now, but I will not be moving it.

Routinely, when you go into hospital, you are asked who your next of kin is. That is a routine question and it is entered in your medical record. That person has no legal status in terms of making medical decisions, although they may be consulted if a best-interest decision has to be taken. However, if you die, that will be the person the ward will phone to say that you are dead and your body is going to be moved to the mortuary, and that is the contact number that will go to the medical examiner to phone you later, which I think is the point the noble Baroness, Lady Berridge, was trying to extract.

It was helpful that the noble and learned Lord, Lord Falconer, described the shock of discovery of a death that you did not know about. That shock has been described by relatives who suddenly discovered that their parent had died by some form of assisted suicide or euthanasia when they had not known about it beforehand. That is documented.

It is also worth remembering that there is no evidence that suicide rates fall when these types of assisted death services come into play, but there is evidence that when people get the care they need, suicidality—that is, thinking about ending your life early—falls. So people need to have care.

I shall speak to my amendments now.

[Lord Falconer of Thoroton (Lab)]

Is the noble Baroness speaking to Amendment 459?

[Baroness Finlay of Llandaff (CB)]

I have already spoken to Amendment 459 and am finishing off speaking to it.

I will move on to Amendments 475 and 939 in Schedule 2. There is concern over the operation of the panels and safeguarding responsibilities, just in terms of the information that comes forward. Someone with relevant information would be allowed to come forward to the panel with appropriate evidence and be afforded whistleblower protection, in the type of situation described by the noble Baroness, Lady Berger, where there is a new person on the scene who others may feel has malintent, for one reason or another.

In the Bill’s current model, medical assessments that have previously gone to the panel will not be monitored contemporaneously. They could be poorly reported, they will not be reviewed and this could hide errors, unconscious bias and discrimination. The role of the panel will be to issue a certificate. In Amendment 493, I have suggested that the certificate should have validity for six months and, in the event that the person has a longer prognosis—we have many examples of that—it is renewable rather than having to start the process again because they have outlived their prognosis.

However, the appeal mechanism to a panel seems to be one-sided. The person can appeal against a refusal to give them a certificate, but there does not seem to be a mechanism for appeal. My Amendment 499 seeks to allow information to be brought to the panel that it may not have known about when it gave a certificate. This may relate to domestic abuse that had been hidden, to coercion or pressure, to any information that the diagnosis may have been wrong, to recent emotional or psychological trauma, or to depression or metabolic disturbance which might have impaired capacity.

Amendment 932 is a very practical one concerning the provision and distribution of panels around England and Wales. It has not been made clear how many panels there would be or that there needs to be fair distribution. I have suggested a minimum of three per region in England and a minimum of three in Wales. For the geography, topography and population, I think three would work for Wales. However, areas of England with high population density, or very large rural areas, would probably need more to enable the panel to visit the patient face to face for an assessment. It is completely inappropriate to expect a patient to go to see a panel when they are already ill or to rely on remote consultation rather than having the ability for face-to-face discussion. Those face-to-face discussions must be subject to the confidentiality that you would expect in any medical consultation. I hope that we will not be suggesting that this would be publicly available.

I suggest that, as has been said, these panels came in two-thirds of the way through and a panel can take testimony from others. However, in terms of getting information about the person, as the Minister of State for Courts and Legal Services said in Committee on this Bill:

“It is not a court or a tribunal … They can make the request, but they cannot compel someone to attend”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 12/3/25; col. 1102.]

--- Later in debate ---

[Lord Harper (Con)]

That is very helpful. It enables me to make this point, because this is where we have a disagreement. It gives the sponsor of the Bill the opportunity to set out why the Bill is drafted as it is. I will set out why I think my noble friend’s amendment is broadly right, but perhaps there is a comparison with what we already do in similar cases. That may give the noble Lord, Lord Carlile, the opportunity—he may not wish to say so—for another “told you so” moment, as it is a judicial comparison.

The presumption in the Bill is that panels will do the referrals in public. There is a “subject to” on that: the chair of the panel can decide to do it in private if they feel that is appropriate. I accept that there is a balance to strike because, for obvious reasons, these panels are making decisions about personal, private matters. It is also right that there is some transparency. My noble friend Lord Jackson’s amendment would give quite a big window, 28 days, to publish the notice of the panel meeting. It would also include the name of the person.

The comparison I looked at, which I thought was a reasonable one, was what the Court of Protection does. It makes decision about sensitive financial and welfare matters. It used to be the case that the Court of Protection’s presumption was to sit in private and not hear cases in public. That has changed over time. The presumption now is that cases are heard in public. Again, my understanding is that there is the ability for the judge presiding on those cases to decide for them to be in private if that is felt necessary. Even when they are in private, I understand, members of the public can make applications to go and listen to those cases. I think that is all right and proper. That appears, I presume, to be where—the noble and learned Lord, Lord Falconer, is nodding.

[Lord Falconer of Thoroton (Lab)]

This is an important issue. Let me say what I think the purpose of this is, so that it can be properly debated. The norm for the panel—the noble Lord, Lord Harper, is right—is to sit in public, but it is such a thing that it should be determined by the patient. If the patient says that he or she wants it in private, and they very regularly will, the chair can say, “Okay, it’s in private”. The expectation is that it would normally be in private if the person asks. However, there is still a discretion for the chair. It is not like the Court of Protection where the judge is making a decision in a much wider public interest. The reason it is drafted like this is that there needs to be some transparency but, if the person wants it in private, they should generally be entitled to that because it is so personal.

[Lord Harper (Con)]

That is helpful in one sense because it is helpful to have fleshed out the noble and learned Lord’s intention. It is not helpful in the sense that he has made the Bill less attractive to me than I thought it was. I thought the presumption was more that it would be in public.

[Lord Falconer of Thoroton (Lab)]

It is very important that the noble Lord knows.

[Lord Harper (Con)]

I do. The reason why I partly agree with my noble friend Lord Jackson is that I had a look at what the Court of Protection does in terms of publicity—the bit that the noble Baroness, Lady Hayter, objected to. It publishes hearings in advance—not 28 days—but it does not publish the full name of the individual. It publishes initials and what the case is about: the broad category of the decision. That strikes me as quite a good balance, which provides transparency but maybe avoids people coming to “watch a spectacle”, to quote the concern of the noble Baroness, Lady Hayter.

However, there is some necessity for it to be in public. The reason for that is also set out in the Bill, which says the panels

“must hear from, and may question, the co-ordinating doctor … must (subject to subsection (6)) hear from … the person to whom the referral relates”.

At this point, I agree with the noble Baroness, Lady Berger. That should absolutely be a must; there should not be an exception. If it is the case, as I understand from the appearance of the noble Lord with me on a media programme, that the exception is designed for cases where the person’s medical situation is very severe, they should not necessarily have to come to the panel, but at least one member of the panel should absolutely still have to go and talk to them. It really should not be okay for the panel to authorise somebody to have an assisted suicide without ever having spoken to the person concerned.

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 9th January 2026 Lords Chamber

[Lord Pannick (CB)]

I am sorry but, with the greatest respect, the noble Baroness has not listened or read what is in the Bill. If any of the three members is unwise enough to abstain—I agree that it is highly undesirable that they should—because they are not satisfied that the case is made out, eligibility is not satisfied and, therefore, the person concerned cannot take advantage of the provisions of this Bill. Again, if the noble and learned Lord, Lord Falconer, thinks that I have misunderstood this, he will say so, but he is nodding. The noble Baroness really needs to read the Bill.

[Lord Falconer of Thoroton (Lab)]

I agree with the noble Lord’s assessment.

[Lord Pannick (CB)]

If the noble Baroness reads the Bill, her concern will be addressed.

Then we need to look at paragraph 8 of Schedule 2, which tells the commissioner that he or she

“may give guidance about … practice and procedure”.

I would be very surprised if the practice and procedure did not allow for interested parties to be heard or provide—this is another point made by the noble Lord, Lord Carlile—documents to be requested. If they were not requested and a person did not supply relevant documents, I would expect one of the three members of the panel not to be satisfied.

--- Later in debate ---

[Lord Gove (Con)]

My Lords, I speak because I was persuaded by the case made by the noble Lord, Lord Carlile, but I recognise that there are inevitable questions that his case provokes, which have been reflected in the debate.

Of course, not everyone has been convinced. I am reassured by the strength of the noble Lord’s case, having spent four and a half years as an Education Minister and one and a half years as a Justice Minister with direct responsibility for liaising with the family courts, and so my respect for those who work in those courts and the judges in them is all the greater for it.

However, as the noble Lord, Lord Pannick, has pointed out, not everyone believes that judges would be the ideal people to make decisions in this case. I remind the noble Lord, Lord Pannick, with respect, of the case that he made in his wonderful book, Judges, where he said:

“So long as men and women continue to wound, cheat, and damage each other, there will be a need for judges … Judges do not have an easy job. They repeatedly do what the rest of us seek to avoid: make decisions”.


Each of us may consider either judges or a panel preferable, but there is one key question for those who agree with the noble Lord, Lord Pannick, in his current incarnation and believe that a panel is preferable. Can we know what the promoter of the Bill understands by “legal member”, and can we also understand what the Government believe the definition of “legal member” to be? What is the threshold, what qualification—

[Lord Falconer of Thoroton (Lab)]

There is a detailed definition of “legal member” in paragraph 2(2) of Schedule 2.

[Lord Gove (Con)]

I look forward to hearing what the Government believe the appropriate definition would be and what they understand that means in terms of the pressure on resources for the profession.

--- Later in debate ---

[Lord Harper (Con)]

That is very good. I am glad that the noble Lord has confirmed that the Minister will respond; I look forward to her doing so.

My final point concerns whether the Bill’s sponsors have carried out the modelling and costings that their proposals will require. Have those been put before this House so that we can make the appropriate decisions?

[Lord Falconer of Thoroton (Lab)]

I am sure that the noble Lord will have read the impact assessment; it is based on the current Bill, which includes the panel, and contains detailed costings for the panel.

[Lord Harper (Con)]

I am aware of that. I want to know whether it will contain detailed costings for the court process. Obviously, I do not know what the noble and learned Lord, Lord Falconer, is going to say, but one of the things discussed yesterday was whether he will accept any of the amendments that have been tabled. The point I am making is that, if he were minded to accept the amendments from the noble Lord, Lord Carlile, which obviously have a cost implication, there is a role for the Government in assessing those costs as well as a role for the sponsors. I am simply asking whether, if the noble and learned Lord were to accept them—he may not, of course—he would also provide the costs to the Committee. At that point, I draw my remarks to a conclusion.

--- Later in debate ---

[Baroness Levitt (Lab)]

It sounds like an important point. I am sure that the noble Baroness will understand that I do not have the answer to that at my fingertips right now, but I will write to her.

[Lord Falconer of Thoroton (Lab)]

My Lords, I declare that my wife is a recently retired designated family judge—one of the people whom the noble Lord, Lord Carlile, wishes to include in his court-based process. It makes me warmly in favour of them; I admire greatly the Family Division. I also completely endorse what the noble and learned Baroness, Lady Butler-Sloss, said: if this was put in the Bill, I have no doubt that the Family Division would deal with it well and in accordance with the directions of Parliament. However, I am not in favour of the change proposed by the noble Lord, Lord Carlile, in Amendment 120. I will deal with that in detail in a moment.

--- Later in debate ---

[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—

[Baroness O'Loan (CB)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

May just continue? I will come back to the noble Baroness in a moment. This is very important—it is the critical bit of the whole thing.

There was a lot of evidence given to the Commons Committee in which this very issue was discussed. Sarah Cox, an expert, gave evidence. She said:

“The other thing that concerns me is that we are putting all these assessments on the shoulders of two doctors individually, followed up by a High Court judge. In any other clinical practice, when we are making very serious decisions, we know that shared decisions are much better quality, much more robust and much safer. In clinical practice, we make all these decisions in multi-professional teams. I would never make these decisions independently of my team, because the perspective they bring can help me to understand things that I am not seeing”.”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 28/1/25; col. 74.]


Judges are marvellous, but a number of pairs of eyes in relation to this is better.

A huge number of questions were asked as to why the sponsor in the Commons and I—

[Baroness O'Loan (CB)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Will the noble Baroness let me finish? I am sorry but I am not going to take interventions at this stage. I will come to the noble Baroness in a moment, but I think I should make this argument in full.

The argument is that we made the decision to change from the judge, which I initially favoured, because of pressure and advice from the Ministry of Justice. That is not right. The change was made because the evidence was very clear, and I accepted that people are better off and it is safer if one does it with a multidisciplinary panel.

What are the reasons the noble Lord, Lord Carlile, has advanced for saying that we should have a court-based, not a panel-based process? First, he says that the court has experience of making analogous decisions. The type of decision he is referring to is the one the noble and learned Baroness, Lady Butler-Sloss, referred to: the Bland case, and whether people in a permanent vegetative state should have their life support turned off. That would be of assistance, but what we are proposing in the Bill is a panel, supervised by a commissioner, devoted completely to the question of whether assisted deaths should be permitted. Yes, we would get the benefit at the very outset of the analogous decisions the court has made, but here we would have a panel devoted only to that issue, and which is bound to become more experienced in it than the courts, which are rightly dealing with a whole range of things.

Secondly, it is said that the courts would give a reasoned judgment. As was pointed out in the debate, there is a requirement in paragraph 9 of Schedule 2 to the Bill that the panels give reasons in writing, and that will give rise to a body of decisions being made.

Thirdly, it is said that the court is a court of record. Yes, it is a court of record, but the key thing is, who is best at making the decision? Is it better to have just a judge, or an experienced legal member, a psychiatrist and a social worker? I do not think in all honesty that the fact it is a court of record will make any difference to that.

Fourthly, it is said that you can appeal to the Court of Appeal. We are talking here about people who want an assisted death. We want a safe process; we do not want an overengineered process. In my respectful view, the idea that you have to go into a system that carries with it appeals puts too much of a burden on the people.

Fifthly, it is said that the judges have a special respect in our system, a point made by the noble and right reverend Lord, Lord Harries. The key thing is not whether the judges have respect but whether our system of assisted dying will carry respect. This is a better way of making the judgment; that is why I support it.

A final point made by the noble Lord, Lord Pannick, who raised it and said it was the answer—it may have to do with the fact that it is a court of record—was that the courts have discovery powers et cetera. Yes, they do, but if the panel feels that there are areas that it is not getting to the bottom of, then of course it will not be satisfied and cannot give the certificate. For all those reasons, the panel is better than the courts. That is why the decision was made.

I will now answer the question from the noble Baroness, Lady O’Loan; I apologise for not answering it before.

[Baroness O'Loan (CB)]

I thank the noble and learned Lord. The question I wanted to ask him was connected to him telling us about panels and judges. As I understand it, the three members in the legislation he has presented to the House have expertise in their own area of competence. Does he accept that the benefit of the system devised by the noble Lord, Lord Carlile, is to bring many more disciplines—medical disciplines in particular—into the agenda? In particular, the judge would have the right to sit with the doctor, and there would be a psychiatrist’s report on the capacity et cetera of the individual, so the psychiatric issues would be taken care of. The amendment from the noble Lord, Lord Carlile, proposes something wider than that which the panel could provide.

[Lord Falconer of Thoroton (Lab)]

I do not accept that. The position is in relation to the panel. If it wants a report from a doctor, it can get it. I understand the noble Lord, Lord Carlile, to be saying that the court can ask for all these things—which of course it can—and if it thinks they are appropriate, it will do so. I assume it will not ask for them when it does not think they are necessary to the resolution of the issues. The panel can do the same and, if it does not get them, just like the court, it will have to say no.

[Baroness Berridge (Con)]

In relation to the panel, as a non-medic I understand from my time on the Select Committee that “multidisciplinary” has a particular meaning within healthcare that the witness to the Commons was relating to, so it is not quite the same issue. Is the noble and learned Lord not concerned that only two of the three representative bodies of the panel came and gave evidence to the Select Committee, and the British Association of Social Workers and the Royal College of Psychiatrists are not supporting the Bill, regardless of what their view might be on the principle? Although the noble and learned Lord is obviously very well persuaded by the evidence, the professional bodies that would sit on this panel are not yet persuaded.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

The royal colleges are neutral on the principle. The Royal College of Psychiatrists has said that it is worried about the burden on psychiatrists, not by reference specifically to the panel—though it comes into what it says—but in relation to some of the capacity assessments it has made. I do not think it will be difficult to find, for the purposes of the panel, people who have the appropriate qualifications in psychiatry to sit on the panel. People who have had some experience and are maybe working part-time, for example, will be able to do it—so I am not concerned about the absence of people who could do it.

[Baroness Nicholson of Winterbourne (Con)]

Does the noble and learned Lord not accept that his particular panel make-up disregards deafness, which is probably the largest disability in the whole of the United Kingdom? Some 19 or 20 million people are deaf to different degrees. The issue is very underrepresented in this House, oddly enough, although a large number of Members suffer from deafness. It is also particularly badly treated in the National Health Service, as we have seen in the recent report that one in 1,000 babies is born deaf and the issue is not addressed as it should be. Why does he think his panel will be any better than the proposal by the noble Lord, Lord Carlile? Presumably a judge would consider every aspect of a patient before making any decision. I am concerned that this panel attitude is quite irrelevant to those of us who are deaf—nearly 20 million British people are deaf—and to the very large number of people who do not speak English.

[Lord Lemos (Lab)]

I think the noble and learned Lord can respond to the noble Baroness’s point.

[Lord Falconer of Thoroton (Lab)]

I am not sure, particularly given the way in which the noble Baroness addressed the issue at the very end, that this is a point about panel versus judge. I would expect a judge to be experienced and able to deal with somebody who is deaf, and if they are not able to, they should be. Equally, I would expect a panel to deal with that in the same way. In all honesty, that was not a factor in determining whether panel or judge was better. Both would have to deal with that.

[Baroness Nicholson of Winterbourne (Con)]

My question was about deafness. There is no social work relevance to deafness. The noble and learned Lord’s panel is very specific.

[Lord Falconer of Thoroton (Lab)]

I hope I have given a satisfactory answer in relation to that.

[Baroness Scotland of Asthal (Lab)]

I declare an interest as a former deputy High Court judge and recorder. Does the noble and learned Lord not think that one way of curing his concern in relation to the multidisciplinary nature of the assessment would be for the assessment to be made earlier in the process and the evidence made available to the court, which could then better make a determination?

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

Yes, I agree very strongly. This is a different use of the phrase: “multidisciplinary team” relates to the people treating the person. The more input they can have, the better. With respect to the noble and learned Baroness, I am not sure that bears on the question of whether panel or court is better because, whichever route is taken, one would hope that, at the stage where either the panel or the court is making a decision, it would have access to what the multidisciplinary team treating the patient thought about the patient.

[Baroness Scotland of Asthal (Lab)]

My Lords, if I may just assist the noble and learned Lord, the reason I think it relevant is that if that multidisciplinary assessment is available, and the court has that evidence available to it, together with any other assessment made by individual additional clinicians, the court can then make an informed assessment as to which method or approach it is minded to deal with, particularly when it does not necessarily agree with the evidence of one particular clinician from whom it has had the benefit of hearing. That is the reason I think it might be useful.

[Lord Falconer of Thoroton (Lab)]

I do not understand that proposition. It seems to me that the panel is able to take that into account just as well as the court—and, indeed, I think the panel would probably be better able to assess it. I am not sure I accept that proposition.

[Baroness Grey-Thompson (CB)]

My Lords, when this was debated in another place, that argument was made, and the Association for Palliative Medicine wrote formally to correct the record. In the statement, the APM clarified that the Bill does not align with the standard multiprofessional team decision-making process. The noble and learned Lord mentioned Dr Cox, who argued that the Bill’s model of two independent doctors working alone was inadequate, and that assessments should be carried out within the multiprofessional team model to strengthen the Bill. On that discrepancy, the APM and MPs noted that although the Bill introduces a panel of psychiatrists and social workers at the end of the process, that does not equate to multiprofessional assessment at the beginning—the assessment stage that Dr Cox was advocating for. That is really important. The Association for Palliative Medicine wrote formally to correct the record following the debate in the other place. If the noble and learned Lord does not want to respond to that point right now, I am very happy for him to write to me, but I think it is important for that to be on the record in this Chamber, as a by-product of what happened in another place.

[Lord Falconer of Thoroton (Lab)]

The reason why I quoted Dr Cox of the Association for Palliative Medicine was that she specifically said that it is better to approach this issue through a multidisciplinary process rather than by placing it on the shoulders of the two doctors and the High Court judge. The panel approach reflects that approach. That is why I quoted it. I do not think I need to write to say that. It was part of the evidence that was saying, “Have not one pair of eyes to judge, but three pairs of eyes”.

[Noble Lords]

My Lords—

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

I have had 21 minutes, so I have to get on and just deal very quickly, if I may, first with the costings. The only costings that have been done have been by the Government. The Government’s costings have been done in relation to the panel but not in relation to the High Court. I have no desire for a High Court costing to be done. If others want it, they can press for it, but I am not asking for it, nor would I expect it from the Government. The impact assessment has been done as it is, as part of the Bill. I am against the proposition to change the provision in relation to a panel, so I am not pressing for any such panel.

I will just get on and deal with the less prime points. Amendment 116, which I think was tabled by the noble Baroness, Lady Coffey, says not to use the Mental Capacity Act. I am against that for the reasons I have already given, which is that we should have one system for all these situations. Amendment 426, tabled by the noble Lord, Lord Carlile, suggests that we should use the criminal standard of proof for capacity. I am against that for the reasons given by the Minister.

The noble Baroness, Lady Coffey, in Amendment 426A, says that the panel should not sit in private. The Bill states:

“Panels are to determine referrals in public; but … The chair of a panel may, at the request of the person to whom a referral relates, decide that the panel is to sit in private”.


If you are dying and want this last discussion with a panel to be in private, you should have that right, in my respectful view. I am strongly against the proposal that she makes. Amendment 426B, tabled by the noble Baroness, Lady Coffey, would require that the person attends in person, which is not understanding of the fact that some people would not be able to attend in person for obvious reasons. Amendment 120A, also in the name of the noble Baroness, Lady Coffey, would exclude legal aid. For the reasons that the Minister gave, I do not think that that is possible.

Amendment 37 asks why Clause 1 only refers to Clauses 8 to 30 and not to the whole Bill. The reason is that Clause 1(2) sets out the steps that have to be taken to satisfy the circumstances of the Bill and those are only in Clauses 8 to 30. The other parts of the Bill are on things such as keeping records and so on.

I think that I have dealt with all the substantive points. For the reasons I have given, and without any lack of respect for the noble Lord, Lord Carlile, who presented it very clearly, I am against the proposal that he is making.

[Lord Harries of Pentregarth (CB)]

My Lords, could I just put one thing to the noble and learned Lord? Granted that the panel and the court-based system have a great deal in common, six months to live and mental capacity are clear and settled decisions—

--- Later in debate ---

[Lord Taylor of Holbeach (Con)]

My Lords, I think that part of the difficulty is that we are trying to find a pragmatic method of discussing this complicated Bill. There are some 80 amendments in this particular group and it is impossible for the noble and learned Lord, Lord Falconer, to give justice to all of them in 20 minutes. He has talked in general principles, but he must be aware that one of the difficulties, which connects with yesterday afternoon’s debate—I was not here for it, but I saw it on television—is that he is not satisfying the need of explanation for those who are articulating points of view. Taking just a little bit longer may well be a shortcut to getting the Bill done. I feel that part of the difficulty, having listened to a lot of the debate on the Bill, is that the noble and learned Lord is desperately keen to keep moving. I understand that, but there are points at which he can stop and explain, perhaps with a bit more sympathy to the points that have been made by other Members of the House.

[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.

--- Later in debate ---

[Baroness Levitt (Lab)]

I am not taking any interventions. I would invite the noble Baroness, with the greatest of respect, to write to me, and we will deal with the matter then.

In answer to the noble Baroness, Lady Smith, who raised the issue, along with others, including the noble Lord, Lord Harper, I can confirm that the Minister for Care said this week that we will publish an interim report in the spring and a final modern service framework by the autumn. We want to get this right, so we are not going to rush it. I remind all noble Lords that this is not a government Bill; it is a Private Member’s Bill.

For completeness, as the Committee will be aware, none of the amendments in this group has had technical drafting support, so the way they are currently drafted means that they may not be fully workable, effective or enforceable, but the issues raised are a matter for Parliament to consider and decide.

Finally, I had almost forgotten—how could I forget?—the noble Lord, Lord Kamall. I am going to commit the noble Baroness, Lady Merron, to writing to him.

[Lord Falconer of Thoroton (Lab)]

My Lords, the relationship of palliative care to the Bill is very important and concerns both everybody in this House and people generally, so this is an important group of amendments. The amendments approach the issue in a number of ways. First, they approach it on the basis that, as the noble Baroness, Lady Finlay of Llandaff, said, in order to make a decision, you have to be properly informed. So there is an information aspect, which I will address in a moment. Secondly, there is an issue about whether, if you want to make an application for assisted death, you have to subject yourself to a compulsory assessment of some sort. Thirdly, there is the issue of whether you should be entitled to an assisted death only if you can access better and therefore more appropriate palliative care than might actually be available to you in the place in which you live. I will deal with each of those three issues, which are right at the heart of this group of amendments.

First of all, should you be properly informed? Yes, you most certainly should be properly informed of what palliative care is available to you, and the Bill should make that clear. I submit that the Bill makes that clear and does so in a reasonable way. I draw your Lordships’ attention to Clause 5, which says, on the preliminary discussion:

“If a registered medical practitioner conducts such a preliminary discussion with a person, the practitioner must explain to and discuss with that person … all appropriate palliative, hospice or other care, including symptom management and psychological support, and offer to refer them to a registered medical practitioner who specialises in such care for the purpose of further discussion”.


All the palliative care options that are available to you have to be discussed with you by the doctor in the preliminary discussion and, if you want, you can be referred to a specialist in palliative care as well. In addition to that, I refer your Lordships to Clause 12(2)(c)—I am grateful to the noble Lord, Lord Kamall, who took us through the provisions very helpfully—which says that each of the two doctors has to explain to the patient

“any available palliative, hospice or other care, including symptom management and psychological support”.

Therefore, there are three occasions on which the detail of the palliative care available to you is explained to you.

The noble Baroness, Lady Finlay of Llandaff, says that maybe they would not know the full detail. I recognise that that might be possible, but is it dealt with adequately in the Bill in terms of the information being provided? My own view is that it is. I do not think you need to make further provision as far as information is concerned. I am very happy to talk to any noble Lord in relation to that, but I think that this question has been addressed head-on and that a proportionate and sensible solution has been reached—proportionate even having regard to the fact that this is the most serious decision that somebody could take.

The second issue is whether, nevertheless, should you make a referral mandatory, it has to be done, you have to be examined and you have to have a meeting with a multidisciplinary palliative care team. I say no. I say that that is a choice, because the obligations of giving information are sufficient in relation to that.

The third issue raised by this group is that palliative care is patchy throughout the country; it is better in some places than others. I completely accept that. Everything that we do in relation to assisted dying should not lead to any reduction in finance for palliative care. I am sure that it will not. As those who have read the impact assessment provided by the Health Department will know, it makes it clear that the amounts of money we are talking about to fund assisted dying are in the tens of millions, which is not going to make a difference to the provision of palliative care in this country. I am not in favour of additional provision being made to provide palliative care for those who want an assisted death, nor am I in favour of saying that, unless the standard is the highest or a reasonable standard, you are not entitled to it.

As to the first of those two points—namely, that you are entitled to a higher standard if you apply for assisted death—the Minister said that that might well be contrary to the law, but put that to one side: we should do our best for everybody in relation to palliative care, and you should not get a special advantage if you apply for an assisted death. Secondly and separately, of course, nobody wants the absence of palliative care to be the reason you apply for an assisted death, but we have to give everybody this choice on the basis of the way the world is for them. It should not, for example, be available only in the areas where the best medical attention is available. As long as you know what you are entitled to, it should be available to everybody, not just those who live in Oxford or Cambridge or those who live close to St Thomas’ Hospital and other palliative care places.

The various amendments are all twists on those themes. My view is that we should make sure that they have the right information, and they should have access to a specialist who will tell them it if they want it, but I think the Bill does that. Although I am open to any discussion people want, I think we have done enough and addressed head-on these issues, so I invite the noble Baroness to withdraw her amendment.

Criminal Cases Review Commission

Lord Falconer of Thoroton Excerpts

Wednesday 7th May 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for the question. I think I am right in saying that there has been additional money put into the forensic side of the work done by the CCRC. If there is additional information which I need to impart to the House or to the noble Lord, I will put that in a letter.

[Lord Falconer of Thoroton (Lab)]

My Lords, it is widely agreed that the CCRC has been failing, not just for a year but for decades. The Malkinson case demonstrated that, as he was rejected in 2009 and rejected in 2018. Is it not right that the first step to do something about the CCRC was taken by the Lord Chancellor, in forcing out the chair who failed to acknowledge the problems of the CCRC? My second question is this. There are urgent cases, as my noble friend has referred to. It is not just that case but, for example, the Lucy Letby case. What steps are the Government going to take to ensure that, while the review is going on, the public can have confidence in their dealing with those sorts of cases?

[Lord Ponsonby of Shulbrede (Lab)]

I thank my noble and learned friend. It was of course an independent board which was appointed by my right honourable friend the Lord Chancellor. She acted on the advice of the independent board, and the chair of that organisation stepped down. My noble and learned friend asked about the Lucy Letby case. That is a case which I understand is under active consideration, and it would not be appropriate for me to comment on it.

Legal Aid: Social Welfare and Family Law

Lord Falconer of Thoroton Excerpts

Monday 18th November 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for that question, specifically on the point of advice deserts. There is no doubt we are facing substantial challenges in that respect. The previous Government allowed the number of duty solicitors available to drop by 26% between 2017 and 2023. The MoJ and the Legal Aid Agency are working with providers where there are specific issues; for example, setting up a list of providers available to provide immigration advice to clients in the south-west.

[Lord Falconer of Thoroton (Lab)]

My Lords, my noble friend Lord Bach’s Question is rightly focused on social welfare law and family law, which all too often get forgotten. One of the real pressures on the system is dealing with domestic abuse cases. The courts have introduced a system recently in certain courts, called the pathfinder courts, where there is an early assessment of domestic abuse allegations and the effect trying them will have on children. Could the Minister tell us whether the Government support those pathfinder schemes and how they are getting on?

[Lord Ponsonby of Shulbrede (Lab)]

I pay tribute to my predecessor, the noble and learned Lord, Lord Bellamy. When I was in opposition, he made a point of encouraging me to visit a pathfinder court in Dorset. I was very impressed by what I saw, and the Government are pleased to carry on that initiative. Again, I am afraid the further rollout of pathfinder is also subject to those allocation discussions, which are ongoing, but I absolutely endorse the point my noble friend makes about the importance of pathfinder, not least because it is a way of highlighting and cracking down on domestic abuse in the court system.

End of Custody Supervised Licence Scheme: Extension

Lord Falconer of Thoroton Excerpts

Monday 13th May 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, the subject of the IPP prisoners will be fully discussed in the Report stage of the Victims and Prisoners Bill, now scheduled for next Tuesday. Noble Lords will be aware that extensive government amendments have been tabled with the clear intention of reducing the population of IPP prisoners.

[Lord Falconer of Thoroton (Lab)]

As somebody who has faced the dilemma that the current Lord Chancellor faces, I am not unsympathetic to the position of the Government. I understand they are doing it because the prisons are too full. Could the Minister explain what effect the fact that the prisons are too full is now having on the way the Government are dealing with the backlog in the Crown Court? There are 66,000 cases waiting to be tried in the Crown Court. I assume there is no desire to speed them up, because the prisons will get fuller and fuller.

[Lord Bellamy (Con)]

My Lords, the Government are working as closely as possible with the judiciary to reduce the backlog in the Crown Court as early as possible.

Judicial Review and Courts Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, before I speak to Amendment 37, I should like to congratulate my noble friend Lord Ponsonby on everything that his public service outside this Committee and your Lordships’ House brings to our deliberations about criminal justice. The Committee needs no reminders from me of all that the eminent silks, retired Law Lords and former members of the senior judiciary bring to your Lordships’ House. The magistracy is a very important part of the criminal justice system. My noble friend brings an experience, a humility and an anxious scrutiny of the system to our deliberations which is incredibly helpful and always illuminating.

Amendment 37 is purely a probing amendment, and I hope the Minister received that message via his office. I have unashamedly taken this opportunity to put issues concerning women and girls in the criminal justice system on the map. As the Committee and the Minister will know, this is ultimately a shared responsibility with his noble friend Lady Williams of Trafford and her department. These two great departments of state—the Home Department and the Ministry of Justice—are responsible for the whole system, including matters well beyond the scope of this Bill, such as the police and the CPS. They also have responsibilities that are dealt with in this Bill, such as for the court system.

Just last year, both Secretaries of State felt the unprecedented need to issue a public apology to women and girls for their experience of the handling of sex offences in our criminal justice system. To some extent, that has led to the resignation of the Commissioner of Police for the Metropolis. Perhaps more importantly still, it has led not just to terrible attrition rates for sex offences in particular, but to a real crisis of trust and confidence in the system on the part of women and girls that none of us on either side of your Lordships’ House wants to see.

I do not want to say that there should be an inquiry on the narrow grounds that happen to fit into the scope of this Bill. Rather, I want to give the Minister the opportunity to update the Committee and therefore the country on where the Government are and where they propose to be, and how quickly they can rebuild trust and confidence in relation to sex offences in particular and criminal justice in general for slightly more than half of the population.

[Lord Falconer of Thoroton (Lab)]

My Lords, I will make two separate points. First, Amendment 54, tabled by my noble friend Lord Ponsonby, relates to Clause 43, which abolishes local justice areas. It says that the Lord Chancellor must,

“by regulations, make consequential or supplementary provision in relation to the abolition of local justice areas.”

I assume that the thinking behind this is that it would be convenient if all justices were appointed, say, for England and Wales and not to a local justice area, and training, deployment and other issues should be dealt with on a national basis.

I do not know what is planned, but I do know from my experience as Lord Chancellor that being a Justice of the Peace in a particular area is of very considerable importance. I also know that people are appointed as magistrates because they are committed to their local community, and that people being trained and deployed together over a period of time in a particular area is also incredibly important to local justice.

This looks to be a very wide-ranging provision which may well have been thought out in full, but I should be grateful if the Minister explained the thinking, and what is being done about recruitment, deployment and training.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

Of course I accept that point as a matter of principle. That is why consultation is really at the heart of this. There has to be a balance. For example, there could be a case where you have a number of very disabled witnesses and a particular courthouse is more accessible for them than another one. There could be cases, as in the pandemic, for example, where some courthouses have been more easily adapted than others. But, as I hope I have made clear, we will make sure that there will be full consultation on this. But we want to build in the legislative flexibility to allow that to take place in cases where it is needed. If I may say—

[Lord Falconer of Thoroton (Lab)]

The legislative form that this is taking, in Clause 43(1), is:

“Local justice areas are abolished.”


The Minister referred to things on the edges, such as greater flexibility between areas and particular courthouses being suitable, all of which sound quite sensible. But it is very hard to think that that requires the wholesale abolition of local justice areas. Echoing what the noble Lord, Lord Marks of Henley-on-Thames, said, could the Minister tell us what consultation has taken place already and led to the conclusion that the solution to, and the right way to deal with, what appear to be problems around the edges is to abolish local justice areas altogether?

[Lord Wolfson of Tredegar (Con)]

First, the legislative architecture, so to speak, is not just Clause 43: I have already mentioned other statutory provisions that require consultation. There has been consultation on this, although I do not have all the details of it to hand. If I may, I will drop the noble and learned Lord a note setting that out.

I was just about to thank my noble and learned friend Lord Mackay, and I apologise for standing up when he was about to speak. I respectfully say that he summed up perfectly the balance that is required between the need for a local link and for flexibility when it is useful.

Finally, as the noble Baroness, Lady Chakrabarti, explained—I received the message—Amendment 37 essentially a probing amendment for me to explain what is going on. It would formally require an inquiry into the adequacy of the criminal courts in relation to women and girls. We are doing significant work in this area, both to improve the experience of women and girls in the criminal justice system—or, in some instances, the justice system more broadly—and to better scrutinise the agencies involved. As she said, a number of agencies are involved, and this is a cross-government issue.

We are already taking specific actions. I shall set out some of them now, although it is a non-exhaustive list. We know that pre-recorded cross-examination can help to improve the experience of victims, so we are rolling out the use of this measure, known as Section 28, for sexual violence and modern slavery complainants to all Crown Courts nationally. We have introduced a single source of 24/7 support for victims of rape and sexual violence. We are working with the police and the CPS to reform approaches to disclosure, and I am sure that the noble Baroness has heard the DPP talk about that in particular. In July last year we launched a violence against women and girls strategy that contained a number of commitments to keep women and girls safe. I will not read those into the record, but I know the noble Baroness is familiar with them.

On a cross-government basis, we have cross-system governance structures to hold criminal justice system partners to account. We published the first criminal justice system scorecard for adult rape in December last year. Publishing and monitoring that data will enable us to improve how adult rape cases are handled at each stage of the criminal justice system, focusing on key metrics such as—I apologise for using this phrase because I hate it, but it is the phrase that is used—“victim attrition”. It sounds terrible but we know what it means.

Finally, there are reviews and inquiries, similar to the one proposed in this amendment, already in place. On 5 October last year the Home Secretary announced the Angiolini inquiry to investigate the issues raised by the conviction of Wayne Couzens for the murder of Sarah Everard. Among other issues, the inquiry is looking at what police forces are doing to identify and deal with misogynistic and predatory behaviour.

In October last year, the Metropolitan Police announced that it had commissioned the noble Baroness, Lady Casey, to lead an independent review of its culture and standards following Sarah Everard’s murder. The review will assess the extent to which the force’s leadership, recruitment, vetting, training, communications and other practices effectively reinforce the standards that the public should expect. Finally, the Victims’ Bill consultation, which recently closed, explored how to amplify victims’ voices, improve the accountability of criminal justice agencies and generally improve support for victims, and we will of course be responding to that in due course.

I am very grateful to the noble Baroness for raising the issue. I hope she will forgive me for not mentioning everything in response, given that her amendment is a probing one, but obviously I can assure her that this is right at the top of our priorities across government. Formally, though, I respectfully ask noble Lords not to press their amendments.

--- Later in debate ---

[Baroness Whitaker (Lab)]

My Lords, I support all the amendments in this group. My support comes from my experience as a magistrate, and I appreciate the endorsements of the role of the magistrate from all around the Committee. As those who frequent magistrates’ courts will know, they are places where invariably vulnerable and some other defendants are simply not able to understand or cope with the requirements of the legal system, as my noble friend Lord Ponsonby described, so effectively they do not have a fair trial. With regard to increasing the powers of magistrates in Clause 13, magistrates too are not experts, and that is partly the point of them. In my view, the safeguards in Amendments 35 and 36 would be very useful against inadvertent injustice.

[Lord Falconer of Thoroton (Lab)]

My Lords, I have very considerable concerns, which have also been expressed by the Delegated Powers Committee, about the Secretary of State being able in effect to double the length of time that a prison sentence can last in relation to both summary offences and either-way offences. How long a person goes to prison for as a result of a magistrates’ court sentence is a considerably important factor in determining which cases are tried by a jury and which are tried by the magistrates’ court. If there is to be a change in the powers of the magistrates’ court of this dimension, it should always be done by primary legislation and not by regulatory powers. I oppose the proposal that the Secretary of State could in effect double the sentencing power of the magistrates’ court and think that should be left to primary legislation. For that reason, I support the amendment tabled by the noble Baroness, Lady Chakrabarti.

[Lord Deben (Con)]

My Lords, as a non-lawyer, I have listened to much of this debate before and today and I think this Government are going too far in taking into ministerial powers decisions which should come before Parliament. This is another example of that. I do not want the Secretary of State to be able to do this without Parliament discussing seriously what it means. Parliament ought to be much tougher about its powers being taken into the Executive.

I was first elected to the other place in 1970. Since then, Parliament has become increasingly less powerful and increasingly the Executive have increased their power. I do not believe that the Secretary of State should have this power. I believe it should be Parliament. What is more, I believe that the public think it should be Parliament. Only with the consent of the public does the legal system work.

I usually come here to ensure that lawyers do not do things a bit on their own in legal matters, and I think I am the only non-lawyer here, but I wish to say—I apologise to the noble Lord, Lord Ponsonby, a fellow recalcitrant individual. It seems to me that we have to be much tougher about things that look small because, in aggregate, they become very dangerous, because the public will lose their belief in the fact that the legal system is independent except that it is dependent on the good sense of the elected Parliament and the House of Lords in ensuring that the Executive do not overstep the mark. I do not want this Government to overstep the mark in this or any of the other things they seem to wish to take unto themselves.

--- Later in debate ---

[Lord Pannick (CB)]

The Minister draws my attention to subsection (6), which allows a person to choose to do so by non-electronic means, but that is not easy to reconcile with the provision I have just referred to in Clause 19(1)(b). If the Minister can assure me that the person who is the litigant—either the claimant or the defendant—can always choose in all cases to have an oral hearing in the court, then I would be very pleased indeed to hear that.

When we debated provisions in very similar form in 2019 in Committee and, I think, on Report, the noble and learned Lord, Lord Keen, assured the House that the Government’s intention was to introduce online procedures only for civil money claims up to the value of £25,000. I ask the Minister whether that remains the intention of the Ministry of Justice. Does it have any plans to introduce these online procedures, including those covered by his Amendment 38, for any other civil proceedings?

[Lord Falconer of Thoroton (Lab)]

In relation to that point, it is absolutely plain that the wording of Section 19 applies to any sort of civil proceedings, including family proceedings. So it is plainly envisaged that this goes beyond simply money claims. Can the Minister describe the sorts of family proceedings that will be dealt with by the Online Procedure Rules and online processes? In particular, is it envisaged that this is to be restricted to the actual process, for example of getting a divorce or judicial separation, as opposed to proceedings that relate to the division of assets upon judicial separation or divorce, proceedings in relation to wilful neglect to maintain and any proceedings—in both private and public law—relating to children?

Secondly, and separately, I want to make a much more minor point. I understand that one of the things the Master of the Rolls has in mind in relation to Amendment 38 is that dispute resolution services must be used before, or as part of, the online process. The services envisaged by the amendment will themselves be online, so purveyors of online dispute resolution services will become quite significant players in the civil justice system, and perhaps in the family justice system as well. The rules may include a provision that the goodness or quality of those services can be

“certified by a particular person as complying with particular standards.”

To be helpful, in a way, the amendment says that

“‘particular person’ and ‘particular standards’ include, respectively, a person of a particular description and standards of a particular description.”

Can the Minister indicate who will determine whether the online dispute resolution services, which may become something that you as a litigant must engage with, meet an adequate standard? Will it be a judge, an official or some independent body? I would be interested to know what the Government’s intentions are in relation to that.

--- Later in debate ---

I turn to hearings. Whether an oral hearing is heard in person or online is a matter for the judge in the case, and that is the current position. Whether there is a hearing at all is a matter for the judge in an individual case. A judge can—and judges sometimes do—decide that the hearing will be conducted entirely on paper. That would be very unusual in some cases, extremely usual in others. There are beginning to be protocols. The noble Lord, Lord Pannick, will be aware of the guidance put out by the Chancellor to deal with civil proceedings but there has been recent guidance put out by the Lord Chief Justice with regard to criminal proceedings. Both set out the expectations of which hearing would normally be expected to be online and which would be conducted face to face. But ultimately it is a matter not for Government Ministers but for the judges in each case.

[Lord Falconer of Thoroton (Lab)]

I am increasingly bewildered by these answers. I have obviously misunderstood this clause, but it says that the rules

“may authorise or require the parties … to participate in hearings, including the hearing at which the proceedings are disposed of, by electronic means.”

I thought that meant you could have rules that said this sort of case has to be dealt with at an electronic hearing, which does not give the judge a discretion. Is it the position that this is all subject to an overarching discretion in a judge to say that the hearing can be dealt with in person?

[Lord Wolfson of Tredegar (Con)]

That is the point I was going to come to. Here we are dealing with the rules set out by the Online Procedure Rules Committee. That is not the Lord Chancellor. I want to show the Committee that the Online Procedure Rule Committee is set out in Clause 22, and in the usual way it is a committee which is not run by the Government but is run in the way that the procedure rule committees are run, which is ultimately under the control of the judiciary. The central point is that ultimate control rests with the judiciary.

As I understood it, the point made by the noble Lord, Lord Pannick, was that two safeguards are in place in relation to the powers to make amendments in Clause 27, which states:

“The Lord Chancellor may by regulations amend, repeal or revoke any enactment to the extent that the Lord Chancellor considers necessary or desirable in consequence of, or in order to facilitate the making of, Online Procedure Rules.”


I cite—this goes back to a point made by the noble Lord, Lord Pannick, in relation to a different issue—subsection (3), which is a consultation requirement with the Lord Chief Justice and the Senior President of Tribunals, and subsection (5), which states:

“Regulations under this section that amend or repeal any provision of an Act are subject to affirmative resolution procedure”.


I suggest that that is very important. So the architecture here means that, ultimately, judges retain control, in practice, of what is heard online and what is heard in court.

However, there will be increasingly firm directions and defaults as to what is heard online and in court— I make no apologies for this. In my own area, the Commercial Court, although you can ask for an in-person hearing if there is a good reason, it is now the default that, if you have an application for half an hour or one hour in front of a judge, it will be online, because that saves time and money and provides access to justice.

On family courts, which the noble and learned Lord, Lord Falconer of Thoroton, asked about, I had discussions very recently with the President of the Family Division about this. Again, this is ultimately a matter for the judges, but he was saying that it is actually better to have certain hearings online. For example, if everything has been agreed between the parents and it is essentially a consent hearing, that will be done online. I am sure that it would be inconceivable that a public law family hearing, for example, where the court is taking a child away from parents, would be done online. But, ultimately, that is a matter for the judges.

I regret that, during the pandemic, there were cases where that had to be done, unfortunately, because of the need to protect children—because, when push comes to shove, protecting children is more important than having a face-to-face hearing. But, in normal circumstances, one would certainly expect that that sort of hearing would be face to face—but that is not a matter for Government Ministers or the Lord Chancellor.

These provisions seek to set up the Online Procedure Rule Committee, which will have the same sorts of powers for online procedures as the current rules committees have for the current procedures, whether that is the Family Procedure Rule Committee, the Civil Procedure Rule Committee, the Criminal Procedure Rule Committee or the rules committee for the Court of Protection—there are a number of different rules committees—

--- Later in debate ---

The Committee must accept, as anybody who reads the speeches of the Master of the Rolls assiduously, which I am sure that the noble and learned Lord does, that this is the future of justice. It is not inconsistent with providing civil justice; it is the way of providing civil justice. At the moment, too many people are excluded. Having to go to your local court, even if for a case of £35,000 or £55,000, can exclude people. This is about improving access to justice.

[Lord Falconer of Thoroton (Lab)]

The relative of the noble Lord, Lord Thomas of Gresford, is the proof that we all want. We are also aware that the judges will have an incredibly important role in determining the rules. The fact that the judges will have an important role in determining the rules does not mean that Ministers should not tell Parliament what the Online Procedure Rule Committee has in mind. We should expect to be told, for example in relation to money claims, whether, if £25,000 is okay online, £25 million is okay online and required to be online. If that is the vision, tell us, so that Parliament can properly debate it.

In relation to family matters, I am hugely unimpressed by the Minister referring to consent orders, because almost every consent order now is already dealt with online, in the sense that it will be dealt with by emails. We should be told if it will go beyond the sorts of things that I referred to earlier—not because we will necessarily object to it but because we can then debate it. Of course, we are as keen as he is to go towards the future, but we would like to know what the Government’s view of the future is. If the Minister wants to write to us, that is fine, but on Report this might be quite important.

I will say just one more thing. I probably missed it, but I am keen to know who these people were who were going to approve the dispute resolution alternatives to court that are referred to in Amendment 38.

[Lord Wolfson of Tredegar (Con)]

Let me deal with that last point. Amendment 38 is not about approving the persons but approving the process. For example, the Online Procedure Rule Committee will say, “This is the protocol” and there will be Wolfson Mediation Services and Falconer Mediation Services and people can choose in a market who they go to. Of course, those services which offer seamless transition to the online courts service are likely to be better placed in the market, because they will have an advantage. However, it will be up to the providers to set up their services so that people can seamlessly transfer in. The Online Procedure Rule Committee will set up the protocol, so that you know what you are aiming at and the way that you must set up your online procedures so that, if the case does not settle, the data can transfer into the court process.

[Lord Falconer of Thoroton (Lab)]

What is envisaged in Amendment 38 is that, if it is Falconer Services or Wolfson Services, somebody has to say that they are okay. Who will be saying whether those services are okay?

[Lord Wolfson of Tredegar (Con)]

That is not what Amendment 38 is aimed at. It is not about accrediting mediation services. It is about saying to mediation services, “If you want people who are using your services, if the case does not settle, to be able to integrate seamlessly into the online court space, these are the protocols to do it”. It is a process point, not a mediation accrediting point. There is a separate issue out there about accrediting mediators. The noble and learned Lord will be aware that there are a number of entities that seek to accredit mediators. There are also a number of bodies such as CEDA in that space. That is an important issue but a separate one to the point of Amendment 38.

I will write about what is online because this is a much bigger point than the Online Procedure Rule Committee. Ultimately judges—I emphasise this point—decide what is online and what is not. At the moment, judges decide whether you get a hearing at all. As the noble Lord, Lord Pannick, will be aware—to give an example from my background, but it appears in other areas of the law as well—if you appeal an arbitration award to the commercial courts, the judge may say no without giving you a hearing at all, either because you do not pass the permission threshold or because you do but the judge decides to have the hearing on paper. There is therefore no substantive difference between that and what is proposed here.

As to what the Online Procedure Rule Committee will do, I am afraid I will not be able to assist the Committee because the Online Procedure Rule Committee has not been set up yet; there are no people on it and it does not exist. This legislation sets out what the Online Procedure Rule Committee will be looking at. I will, however, look again at what the noble Lord, Lord Pannick, has said, and I will write if I can.

--- Later in debate ---

If you want to know how encrusted with history the law is, you need look only to Clause 42 of this Bill. Would you believe it? It is not apparent from the clause, but it sets up a procedure so that a local authority can reorganise coroners’ areas within its own area, and can do so partially if there is a coroner who does not agree, who can stay until he retires. That is a product of history and the judicial nature of the coroner’s office, which makes this area difficult to deal with. I strongly support what my noble friend said but also want consideration to be given to not imposing unnecessary processes on a family where there is no doubt as to how the death was caused, as the family simply wants to be left to cope with it.

[Lord Falconer of Thoroton (Lab)]

I strongly agree with the noble Lord, Lord Beith, but I understand that he does not contest any of the propositions put forward by my noble friend Lady Chakrabarti and the noble Lord, Lord Thomas of Gresford. They are dealing with cases where people are desperate to find out what happened and want a proper hearing.

I underline the point made by the noble Lord, Lord Thomas of Gresford, which is that the key issue here will be in the next group dealing with the provision of legal aid, where appropriate, in cases where there is a dispute. We are not talking about that now, but it is vital to there being a level playing field.

This group of amendments is, in effect, trying to bring the coronial system into line with its current role to allow a proper contested hearing, where appropriate, if there is an issue about the cause of death, rather than it being the administrative process it previously was. There needs to be that change.

The biggest example of why these amendments are right and the Government’s position is wrong is in the amendment proposed by my noble friend Lady Chakrabarti on what is currently Clause 38. Clause 38 amends Section 4 of the Coroners and Justice Act 2009. The 2009 Act allows the coroner to stop an investigation where the cause of death becomes clear after a post-mortem examination. Section 4 also provides that the coroner can, if asked, give reasons after he has discontinued the investigation. That is not apparent in this Bill, but comes only in Section 4 of the 2009 Act.

Based on not just a post-mortem examination but any other matter the coroner thinks relevant, if he is satisfied that the cause of death has become so clear that he thinks an inquest is no longer appropriate, he can simply stop the whole investigation, without reference to the family, even if they are desperate for an inquest. The coroner’s only obligation is to explain why he or she did that after the event. That is the effect of Clause 38, so my noble friend Lady Chakrabarti is absolutely right to say there should be safeguards, and the key safeguard is that proposed in Amendment 40, subsection (4)(2A)(d):

“the coroner has invited and considered representations from any interested person”,

which would include the family. Why do the Government not think there should be such a requirement? What is the purpose of a justice system that can reach a decision without hearing from interested parties, and whose only obligation is to explain why it took that decision after it has been made, without giving the family the opportunity to comment?

[Baroness Chapman of Darlington (Lab)]

My Lords, I commend my noble friend Lady Chakrabarti for tabling these amendments so quickly; I am pretty sure we would have tabled something almost identical. She is right in everything that she said, and she did so succinctly but effectively. I shall address Amendments 40, 42 and 43 in her name as well as Amendments 41, 44, 45 and 53 tabled by my noble friend Lord Ponsonby.

As the noble Lord, Lord Thomas of Gresford, said, there is a theme running through this group: putting families at the heart of this process. There are long-standing concerns about the way that the process often takes place. It is unfortunate that the Government have not taken this opportunity to consider the issue as fully as they could have done. We are worried that efficiency and streamlining of processes should not in any way bring about a sense that these matters are to be treated with less solemnity or seriousness than they should be. We are very nervous that the Government are permanently changing procedures because of a backlog following Covid-19; we understand that that needs to be dealt with, but the needs of families must be central to the Government’s thinking here and at the moment I do not think they are.

We all appreciate that there is widespread inconsistency with coroners and that something of a postcode lottery is developing. I recommend the Justice Select Committee’s report to Members of the Committee. It is a thorough and excellent piece of work; the Government would do well to consider it and implement more of its recommendations. One of the suggestions that the Select Committee made was the introduction of a national service. As I say, the Government have missed an opportunity to go much further than the measures before us, which I am afraid seem motivated predominantly by a need to make up ground after the pandemic.

The current law, the Coroners and Justice Act 2009, holds that where a coroner has commenced an investigation, they must proceed to an inquest unless the cause of death becomes clear in a post-mortem examination. The Government are arguing now that cause of death can be established by what they call “other means”, and they give the example of medical records. They need to be incredibly careful not to create a situation where the justification for discontinuing is based on evidence that cannot be challenged by the family or by others.

My good friend Andy Slaughter in the other place gave a long list of examples, which he probably got from inquest, showing clearly the need for safeguards, particularly the need to allow the family to consent to discontinuation and for such consent to be properly informed. I shall read from Hansard an example that he gave, of Laura Booth. It will just take a minute to read it, but I think it will help us to appreciate the seriousness of the issues that we are considering:

“Laura sadly died on 19 October 2016 at the Royal Hallamshire Hospital in Sheffield. Laura went into hospital for a routine eye procedure, but in hospital she became unwell and developed malnutrition due to inadequate management of her nutritional needs. The coroner overseeing the investigation into Laura’s death was initially not planning to hold an inquest because the death was seen to be from natural causes. However, Laura’s family and BBC journalists fought for the coroner to hold an inquest. The inquest reached the hard-hitting conclusion that Laura’s death was contributed to by neglect. A prevention of future deaths report issued by the coroner to the Royal Hallamshire Hospital noted serious concerns about the staff’s lack of knowledge and understanding of the Mental Capacity Act 2005, and recommended that families should be better consulted in best-interests meetings.”—[Official Report, Commons, Judicial Review and Courts Bill Committee, 18/11/21; col. 334.]


So this really matters. Inquests play a vital role in making sure that loved ones understand the reasons for a death.

Amendment 41 would provide that the Lord Chancellor should establish an appeals process for families who disagree with the decision to discontinue an investigation. We think that is an important safeguard, and it would rightly respect the interests of those whose closest have died. We see it as an anomaly that no right of appeal exists for families in that situation.

Amendment 44 would prevent an inquest being conducted by telephone or other means that were audio-only. We think that audio-only risks hindering engagement with families, and it may be inappropriate in these circumstances.

Amendment 45 would ensure that remote inquest hearings and pre-inquest hearings were still be held in a manner accessible to the public. We think this is important for public confidence, for scrutiny and for challenge. We are worried that measures in the Bill designed to streamline processes will make it more difficult for families to be active participants in the process when all the evidence is that we should be taking steps to help their participation.

We strongly support Amendment 42, which would ensure that inquests were not held without a hearing if that was against the wishes of the family. To do so, as well as being incredibly insensitive, would deprive the family of the opportunity to explore all available evidence and limit their ability to scrutinise the accounts provided by relevant authorities, including by hearing oral evidence and questioning key witnesses. I am sorry the Government are taking the route that they are taking, and I am sure we will want to continue to press them on this as we progress.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

Of course I understand that point, in the sense that I too have read the material of people who have been involved in inquests. I have read some of the material from the various groups which have been lobbying for changes in this area. I hope that I have set out the Government’s position fairly. As we all recognise, the point being made to me is fundamental. I do not want to keep repeating it in response to each amendment, but I certainly accept that what I have just said underpins the Government’s response to a number of these amendments. Therefore, I absolutely accept and understand the noble Baroness’s position; that is, because she disagrees with me on this fundamental point, necessarily she will disagree with me on a number of these amendments because they are underpinned by the same point—

[Lord Falconer of Thoroton (Lab)]

Whether the process is inquisitorial or adversarial, surely you are entitled to basic fairness. This means you are entitled to having a say on what is going on and an opportunity to make proper representations. This is the case whether you are either a family member saying, for example, that your loved one is the victim of a criminal offence by the police, or you are a police officer being accused of manslaughter. Indeed, the Minister has just said that there would be a coroner at the inquest. Therefore, I am not sure why—whether it is inquisitorial or adversarial —you are to be deprived of that basic fairness.

[Lord Wolfson of Tredegar (Con)]

The fundamental point is: who is the “you”? Who are the parties to an inquest? As I was saying earlier, you do not have “parties” in inquests, in the same way that you do in adversarial proceedings. Of course, there are inquests where legal aid is provided and family members—or, indeed, other people—turn up with lawyers. However, as a Government, we certainly do not want the general inquisitorial procedures, in the normal run of an inquest, to become adversarial. I understand that this is a point of principle between us; this is not a point of detail.

This point will underpin a number of the responses which I am going to give. I turn to Amendment 42, which would require the coroner to obtain consent from interested persons, including bereaved families, before determining whether to deal with an inquest on the papers. Clause 39 has been designed to give coroners the flexibility to conduct inquests without a hearing, where there is no need to hold one. They would exercise that power judiciously, because they are judicial officeholders, in cases where they consider them to be non-contentious, where there is no concern about the cause of death, or where the family have indicated that they do not wish to attend a hearing.

To return to the point I started with: because coroners are independent judicial officeholders, introducing the concept of consent into their decision-making process would cut across their judicial independence and fetter their discretion. The coroner would still be required to hold inquests with a hearing, in cases which require one. The Chief Coroner would issue guidance to coroners on how they should exercise their discretion.

Amendments 43, 44, 45 and 53 all relate to remote hearings. The purpose of Amendment 43 is to ensure that additional safeguards are met before a coroner can hold a remote hearing. The position here is that coroners have always been able to conduct hearings with virtual elements, but the coroner and the jury, if there is one, must be physically present in the courtroom. Clause 40 allows all participants to participate in a remote hearing.

As we have said on previous groups about magistrates and jurors, throughout the pandemic, coroners’ courts have also worked very hard to keep their services running. They have taken advantage of the benefits of remote hearings to keep inquest participants safe. Key witnesses, who often could be front-line doctors, have been able to focus on their primary role and attend remotely. Clause 40 ensures that coroners can continue to operate remotely, when they regard it as appropriate. Again, we expect that, being judicial officeholders, coroners would work with interested persons to address any concerns that they may have regarding remote hearings. Again, the Chief Coroner is expected to provide guidance on any law changes.

Amendment 44 deals with remote hearings. The short point here is that there may be instances where participants might prefer or need to participate in a remote hearing only by audio, without video; perhaps that is the only way that they can participate if they are based abroad, for example, and there are technical limitations to how they can access the hearing. As we understand it, the amendment would exclude those participants from participating in the hearing remotely—

Judicial Review and Courts Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Faulks (Non-Afl)]

I am grateful for that clarification, but I am afraid to say that I still fail to follow how bringing forward a fairly balanced Bill is somehow the Government reflecting an elected dictatorship. But I hear what the noble Baroness says.

[Lord Falconer of Thoroton (Lab)]

My Lords, this is a very important debate and in this part of it, I will focus only on whether it is appropriate to empower a delayed quashing order—as proposed in new subsection 1(a)—and whether it is appropriate to give a power to say it shall be prospective only. My overall position is that if the courts want these powers, let the courts develop them. Do not do it by legislation.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

The noble and learned Lord was kind enough to refer to the case that I was referring to. However, I was suggesting that the court should have power, in effect, to direct that the order made under the United Nations provisions be treated as valid until Parliament could introduce a measure giving authority to the making of the order. That is indeed what happened afterwards; Parliament had to remedy the problem and some time was needed to allow it to do that.

The banks were holding on to the money; of course, they were not going to release it unless it was demanded by these suspected terrorists, but had they demanded it, it might have been quite difficult for the banks to refuse to release some money. My point was that something should be done to prevent that happening. The last thing one wanted was to give these terrorists the opportunity to make off and dissipate all the assets that had been protected by the order made under the international obligation.

The problem that the noble and learned Lord is grappling with is that there is a huge range of circumstances in which these provisions may come into effect, some of which, I quite agree, would be offensive. I would hope that the courts would be sensible enough not to exercise the power. There are various provisions later in the Bill, which we will discuss and which might be better removed to preserve the court’s flexibility. The question is whether the power should be there at all. My point was that, yes, it should be there because there can be cases where the interests of good administration, and possibly national security, require the possibility of doing that to prevent the event—or whatever it was that the defective order was designed to prevent—taking effect.

[Lord Falconer of Thoroton (Lab)]

New subsection (1)(a) deals with that point. The effect of the order stood until the Supreme Court set it aside, and everybody would accept that that is the position. If the Supreme Court had had new subsection (1)(a)—which it could have—it could have said that the order freezing the money continues for six more months and in six months’ more time it is then quashed. That is my understanding of a (1)(a) order: the quashing order means getting rid of the restraint on dealing with the money and does not take effect until the date specified in the order.

If the Supreme Court had said, “This order stands until six months’ time”, and a bank had then been approached and told, “Excuse me, the terrorists want their money now”, the answer would have been no because there would still, in effect, be a restraining order. It would have dealt with the problem that the noble and learned Lord posits; I think Clause 1(1)(a) would have dealt with it.

[Lord Hope of Craighead (CB)]

I recommend that the noble and learned Lord refers to Treasury 2 because I made exactly the point that he was trying to make and I was overruled by the others. They said, “You can’t do that”, and they would not make the suspended order. We are in Committee and we cannot prolong the discussion, but that is the problem that I was faced with. I tried to do exactly what the noble and learned Lord suggested but I was overruled. That is the problem that I think the Government are trying to address; the Minister will correct me if I am wrong.

--- Later in debate ---

The Bill does not provide that, when a prospective quashing order is made, the judge is determining or deeming that the decision in question was in fact lawful. In fact, the judge is determining the precise opposite. We must be clear that what the court is doing here is not making an unlawful action lawful—we are thankfully not returning to the days of Charles I. The court, in this clause, is providing how the unlawfulness should be manifested or dealt with—“treated”. This goes back to the nature of remedies—

[Lord Falconer of Thoroton (Lab)]

If the court determines that regulations that impose a tax charge are unlawful but decides that this should be prospective only, is the consequence that the taxes raised before the date are “treated” as having been lawfully raised?

[Lord Wolfson of Tredegar (Con)]

If the noble and learned Lord will forgive me, I will come to precisely that point later in my speech, because it arises under the amendment put down by the noble Lord, Lord Ponsonby.

[Lord Falconer of Thoroton (Lab)]

I am raising it now because the noble Lord is placing huge emphasis on the word “treated”. I would be interested to know whether that word means that tax raised under unlawful regulations in the past remains treated as if it were raised lawfully.

[Lord Wolfson of Tredegar (Con)]

I will come to this point because these are two sides of the same coin. The short answer to the noble and learned Lord’s point is that it would be almost incomprehensible that a court would use a prospective order in circumstances where people have paid taxes that were necessarily unlawfully raised—so the question would not arise. It is a nice theoretical question, but it would not arise. That is why I will deal with it later, and I am happy to take further interventions at that stage, if we can try to deal with the points separately. I see where the noble and learned Lord is going, but at some point one has to live in the real world and consider whether a prospective-only order would be appropriate. Remember, the court has to look at the factors in subsection (8), including paragraph (f), which refers to

“any other matter that appears to the court to be relevant.”

It also has to look at where subsection (9) says

“unless it sees good reason not to do so.”

The idea that that could survive an unlawfully raised tax case is, I suggest, almost incomprehensible.

I will go back to where I was. We are not making an unlawful act lawful. The real question is: what is a remedy at all? In particular, what is a quashing order? This is something that has, frankly, bedevilled public law for some time. It is not clear that public lawyers, or indeed anyone else, have come up with a good answer to it. I suggest, however, that the remedy that the court gives, whether a quashing order or an order of prohibition, does not determine whether something was unlawful or not. It is the judgment and any declaration as to the state of the law that do that. The remedy decides what the effects of that unlawfulness should be, because there are cases where the court will declare that something was unlawful but not actually give a quashing order—but the action is still declared unlawful.

So this new power allows the court to modify the remedial effect of the quashing order so that, up to a point, the action or decision in question would be treated as being valid for all intents and purposes. The court is therefore doing its traditional job of declaring what the law is and what the law was, but it has greater flexibility in determining the real-world effects of its determination. I therefore respectfully agree with the way in which the noble Lord, Lord Anderson of Ipswich, put it. I heard his slightly in terrorem threat as to when we come to the presumption—but I will deal with that at that time.

That approach is consistent with public law as we understand it today. Judges are faced with situations where, despite a finding of unlawfulness, a quashing order does not issue, for a variety of reasons. I do not think therefore that it follows on principle that a finding of unlawfulness should always result in the voiding of the decision ab initio. I am grateful therefore for support on this point from the noble and learned Lords, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood, although I will avoid getting into any relitigating in this Committee of either Spectrum or Ahmed—we will leave that for later groups and possibly further editions of memoirs.

We need to avoid an approach which would take us right back into the straitjacket of nullity, and the academically interesting but practically frustrating doctrines that characterised decisions from Anisminic to Ahmed. We are not giving the court a binary choice of quashing retrospectively or giving declarations that state the law but do not necessarily deal with the effects of the impugned decision, even if it is declared to be unlawful. That is my response to the first main point from the noble Lord, Lord Pannick.

His second contention is that the new powers draw the courts into policy questions. I say respectfully that we are simply not doing that. We are asking the courts to do what in many ways they do already, which is to assess the possible effects of their judgment on the parties and the public interest. It may well be the case that having given the courts these two new tools—I think the noble Lord, Lord Faulks, made this point—they do issue quashing orders in cases where they would not have done so if the only option open to them was an ab initio quashing order. Well, so be it. If Parliament has given them these extra tools, that is the way matters will work out. Subsection (8) sets out what we believe to be the pertinent factors, but we made it expressly a non-exhaustive list.

Courts have long recognised the principle that the administrative burden of rectifying the effects of a past decision can outweigh its potential benefits, especially if the Executive are rushed into action. Importantly, there are cases where the courts have recognised that regulations or policies that have a wide effect can create expectations for third parties: plans could have been made, contracts signed and money spent, all in pursuit of what everyone thought was a lawful policy.

We must not get lured into the example of somebody paying tax under regulation which turns out to be unlawful. People might have signed contracts on the basis of a regulation which turns out to be unlawful. They may have spent money or set up businesses. To undo all that could give rise to far more injustice than making sure that present and future situations are rectified. The example I gave at Second Reading, which the noble Lord, Lord Anderson of Ipswich, also mentioned, was the case of BASCA v Secretary of State for Business.

There is a further benefit to good administration, which is really what judicial review is all focused on anyway, which is that public bodies can make good a decision without having to revisit what can sometimes be long and drawn-out policy processes for the sake of a small error.

In cases relating to Heathrow expansion, for example, one point of contention was whether the Government had to take into account the Paris climate agreement. If the court had ended up finding that the decision not to take it into account was unlawful, it would surely have been far better to give a prospective order, so that the overall process of expansion was protected and the decision could be amended properly to take into account the relevant agreement. Quashing retrospectively would mean that the entire process would need to begin again from square one. A prospective remedy would allow the unlawfulness to be corrected at lower cost and in a shorter time, while still recognising—I underline this point—that the initial decision was unlawful.

I also emphasise the points in subsection (8)(c), which ask the court to have regard to

“the interests or expectations of persons who would benefit from the quashing of the impugned act”

and subsection (2), which allows the court to set conditions on the remedy. I hope that those provisions assuage any concerns that individual rights would be prejudiced—on the contrary, they ought to be taken into account by the court.

I have gone into some detail on that point because it was focused on by the Committee. I hope I can deal with the other amendments slightly more quickly with that background.

Amendment 3 removes the ability of the court to attach conditions to a suspended or prospective-only quashing order. These are intended to give the court maximum flexibility. For example, a court might want to make an order prospective only to reduce administrative chaos, but only on condition that parties who may have lost out financially are properly compensated. The conditions may not be necessary in every case, but it is an option for the court where appropriate.

Finally, Amendment 6 aims to ensure that the invalidity of quashed regulations can be relied on in criminal or civil proceedings. As I understand it, the concern of the noble Lord, Lord Ponsonby, is twofold. First, defendants could be prosecuted under regulations that have been ruled to be unlawful yet, because of the powers in this Bill, are treated as valid. That point was made by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks.

Secondly, this might mean that claimants or victims would be less able to obtain damages, restitution or compensation. As I have suggested already, the amendment is unnecessary. As the noble Lord, Lord Faulks, said, collateral challenge is not at issue. The Bill does not necessarily prevent such challenges, because it gives the courts powers to formulate the remedies appropriately. In circumstances where provisions which create criminal penalties are being challenged, and have been challenged successfully, I find it very unlikely that a court would decide to use a prospective-only remedy. That is not only because the list of factors includes in subsection (8)(c)

“the interests or expectations of persons who would benefit from the quashing of the impugned act”

and, in subsection (8)(f),

“any other matter that appears to the court to be relevant”.

That would, I think, mean that the court would certainly find a “good reason”—to use the language in subsection (9)—to use a retrospective quashing order, so that any persons, for example, who had paid tax would have a remedy in restitution.

In similar cases where a court considers a suspended remedy, the ability to set conditions on the order would also mitigate any risk of injustice. For example, a court could use a suspended quashing order with the condition that the authority in question does not take any further enforcement action. This goes back to my main point about maximum flexibility. For those reasons, I invite the noble Lords who have tabled these amendments not to press them.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

I do not see this as a tool in the toolbox but as opening up a nest of snakes. When you use the phrase

“unless it sees good reason not to do so”,

it opens up some real complexity if people start to make further appeals on the basis that there was good reason not to do so or good reason to do so. I do not see that this is any sort of simplification. The Government will probably regret opening this system of quashing because it will add complications when the Government presumably want it to run more smoothly. I cannot see that there is any point to this. I hope that all those legal eagles over there will start circling round our little legal lamb here and explain to him that he has got this completely wrong.

[Lord Falconer of Thoroton (Lab)]

These are important amendments. They address the botched way that, if these powers are to come in, the exercise of discretion is to be applied. My noble friend Lord Ponsonby is saying that you would use what the noble Lord, Lord Wolfson, describes as the tools in the toolbox only if it is “in the interests of justice to do so”. That is the starting point. That sounds to me a lot more sensible a starting point than the very strange wording in new subsection (9), which is, if the court is to make a quashing order in accordance with new Section 29A(1),

“the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so”,

and the condition is that

“as a matter of substance”

an order under new subsection (1) would

“offer adequate redress in relation to the relevant defect”.

Obviously, there is a difference between adequate redress on the one hand and what is the best order in the interests of justice overall on the other. Can the noble Lord tell us why this strange wording has been adopted if all that is intended is the broadest possible discretion in relation to using these two new tools in the toolbox?

My noble friend Lord Ponsonby’s amendments also relate to new Section 29A(8). The Minister said, in reference to prosecutions and taxation, that you would never make a new subsection (1) order, whether a delayed quashing order or prospective only one, and that is clear, he says, from new subsection (8). He relied in particular on new subsection (8)(c), which refers to

“the interests or expectations of persons who would benefit from the quashing of the impugned act”.

If I have been prosecuted under a regulation that was unlawful, I would expect my prosecution to be upheld. But then, new subsection (8)(d), refers to

“the interests or expectations of persons who have relied on the impugned act”.

Therefore, if, for example, it is made unlawful to do a particular thing and I have had my dog put down as a result or I have bought lots of expensive equipment to comply with the criminal law as I thought it was, my interests or expectations under new subsection (8)(d) would be “Let the law stand”. So new subsection (8)(c) points in one direction and new subsection (8)(d) in another. If it is the Government’s intention that all prosecutions brought under unlawful regulations or laws will never be prospective only, and if it is their intention that taxation raised under unlawful regulations will never be prospective only, in my respectful opinion—I may be wrong, in which case let me corrected by the noble Lord, Lord Wolfson—new subsection (8) does not get him anywhere near that. Indeed, it leaves the judge to decide and the judge has to decide on the basis of new subsection (9).

I therefore strongly agree with my noble friend Lady Chakrabarti. A bit more work needs to go into this to get to a point where there is clarity about what the Government intend, if their intention is that these are only two tools in the toolbox, with complete discretion over how to use them. If that is what they want, my noble friend Lord Ponsonby’s amendments are giving them quite a good opportunity of getting there.

[Lord Brown of Eaton-under-Heywood (CB)]

I hesitate, my Lords, to speak again. I feel that so much of what has been said has been dancing on the head of a pin. I have to say that I have come to see new subsections (1)(a) and (1)(b) in new Section 29A in Clause 1 not as dramatically different things but rather as a continuum. They cover a spectrum; indeed, there is an overlap in between them, in the middle. There is no question here of subsection (5), to which the noble Lord, Lord Pannick, objects so strenuously—the one about being treated, and so forth. It is always subject, be it noted, to new subsection (2) of new Section 29A. Any of these orders under new subsection (1)—in other words, whether it is an order under new subsection (1)(a) or (1)(b)—can be made subject to conditions. Those conditions clearly would control the extent to which there is to be any degree of retrospectivity or retroactivity, call it what one will.

I am a huge admirer and respecter of the noble Baroness, Lady Chakrabarti, but I do not see this as being, so to speak, comparable to Parliament infinitely rarely passing legislation retroactively. We must always remember, must we not, that judicial review is, at the end of the day, a discretionary remedy; you do not actually have to make these orders anyway. I still see this, as the Minister would urge, as a tool in our toolbox, giving us the maximum flexibility and discretion to do what justice requires to all—which includes, of course, to those who are not in the courtroom, who do not have legal aid, and all the rest of it. With criminal convictions—taxation and things—one trusts and assumes that the court is going to behave correctly. In the Percy and Hall case, with the good lady trespasser and PC Hall who was being sued for damages for having arrested people who on the face of it were invading this territory, contrary to apparently valid by-laws, I pointed out in the judgment that, if and insofar as she had actually had criminal convictions, of course they would be set aside. But that is merely an aspect of judges behaving, as one hopes and believes they will, in a judicial manner.

So I respectfully continue to support this clause. I said at Second Reading that I was agnostic or entirely relaxed—I think that was the term used by the noble Lord, Lord Anderson—as to whether it is “may” or “must” in new subsection (9), and I remain so. “Must” simply urges the judges to give attention to this new tool in their armoury or toolbox. But they do not have to, and they will not, unless by all the conditions that they wanted to impose, they have made it clear that what they are doing will not be contrary to justice.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I will respond to the amendments in this group in grouping order. I start by making a point about the list of factors. The purpose of the list of factors in subsection (8) is, as I said in the previous group, to allow the court to respond flexibly in the interests of delivering justice. However, it is important that the court considers—I emphasise “considers”—whether the remedies to be used are appropriate. These are the factors to which the court must have regard.

[Lord Falconer of Thoroton (Lab)]

Is the Government’s intention that these two remedies—new subsection (1)(a) and (b)—should be in a different category from every other remedy the court has under judicial review?

[Lord Wolfson of Tredegar (Con)]

Yes and no, in the sense that this gets us into the argument about the presumption, because the presumption applies to only these two remedies. To that extent, the point made by the noble and learned Lord is correct: that is the nature of the presumption, which we will get to in the next group. We want the court to specifically consider whether these remedies are appropriate and to use them, as the ending of new subsection (9)(b) says,

“unless it sees good reason not to do so.”

Because these are new remedies, we have set out a list of non-exhaustive factors which the court must consider. These are the factors in new subsection (8)—and it is expressly non-exhaustive in new subsection (8)(f). I agree with the noble and learned Lord that, as he put it, these are important considerations. However, we want to encourage consideration of their use; we are certainly not mandating their use in any case.

The other thing we want to do, by putting these factors in the Bill, is to provide consistency in the jurisprudence from the start as to how the remedies are used in the cases which come before the court. I remind the Committee that we consulted on the sort of factors that should be included in the list. We received some very useful contributions in response to that consultation. However, the “must” in new subsection (8)—which is contrary to the proposal in Amendment 7 before the Committee—requires the court to consider each of the factors in the list. Coming to the point made by the noble Lord, Lord Marks of Henley-on-Thames, the “must” does not require the court to find that every factor in the list applies. It does not require the court to say that all the factors are relevant in the instant case. The court may consider that some of these factors in the case before it are not relevant at all; some might have very limited weight or only marginal relevance. All the court must do is to consider them. As the noble Lord, Lord Faulks, pointed out, the court may add to its consideration absolutely anything it wants under new paragraph (f).

--- Later in debate ---

[Lord Faulks (Non-Afl)]

Perhaps I might briefly add to that point before the noble and learned Lord, Lord Falconer, speaks. An absolutely classic example of legislating for discretion would be Section 33 of the Limitation Act, which courts are applying every single day of the week, which lists a large number of factors which the court may take into account and concludes by saying that it may take any other thing into account. Although I absolutely take the point made by the noble and learned Lord, Lord Thomas, there is nothing particularly unusual about setting out in detail the discretion and then, nevertheless, allowing the court to take into account other matters.

[Lord Falconer of Thoroton (Lab)]

I have just two points. First, I agree with the noble and learned Lord, Lord Hope, that no reason is given as to why there is the presumption, but it is worth emphasising that the Explanatory Notes accept that there is a presumption. What is being said is, and it is the intention of the Government, that, if a quashing order is to be made—certain sorts of judicial review will always lead to a quashing order; for example, if a power to prosecute people has been given without justification from primary legislation—there is to be a presumption that the quashing will be delayed and that, subject to the condition in new Section 29A(9), you will use either the delay or prospective-only power.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

Surely the courts will consider it when it is raised by the Government, and the question of the amount of time and how often the courts consider it will be dependent on the number of times it is raised as a proposition. I do not see why we need the presumption to get the courts to consider this.

[Lord Wolfson of Tredegar (Con)]

There are two parts of the answer to that. First, there are, as I said earlier, many judicial reviews in which it is not “the Government” in the way that the phrase “the Government” is used.

I am grateful to the noble and learned Lord, because the second point ties into a point I was going to come to. It is, I am afraid, a longer response than the speech which provoked it from the noble and learned Lord, Lord Judge, who said that this is a presumption in favour of the wrongdoer. I will try to answer the two points together. With great respect, I disagree for this reason: the presumption is not a presumption in favour of the wrongdoer. It is a presumption in favour of finding the appropriate remedy for the facts of the case. As we have heard, rightly, from a number of noble Lords, the claimant might not be the person who is actually most affected by the decision in question. There could be a whole class of people who are very severely affected by the decision in question who are not before the court. The claimant, who is before the court, is affected because they are sufficiently affected to have standing, but they may not be affected to the same degree. Therefore, it may not matter too much to the claimant as to whether the remedy is given. It may, on the facts of the case, not even matter too much to the defendant whether this remedy is given, but it may well affect third parties.

Another benefit of the presumption is that the court, so to speak, has to go through that thought process of whether this would be the appropriate remedy, thinking about people—we talked about the factors in subsection (8) earlier—who are not before the court, because on the facts of a particular case, the claimant may not actually be too bothered about whether these remedies are used. The defendant may not be too bothered whether the remedies are used, but it could well affect the position of third parties. Therefore, with respect, I dispute the proposition that this is a presumption in favour of the wrongdoer. It is in favour of the appropriate remedy.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

With respect, no. The noble Baroness is looking at this in a very negative way. The whole point about the music copyright case was that the prospective-only remedy was there to protect people who have relied on the regulations. One must not look at these cases with the view that you have all these people out there with claims against the Government and the prospective-only remedy insulates the Government from all these other claims. There are lots of cases where a local authority, or the Government, or some other public body has made a decision and people have relied on it. Businesses have been set up, people have taken out bank loans and made investments. In those cases, I ask rhetorically, should all those third-party interests be disregarded merely because in the case of the claimant bringing the judicial review, his bank loan has not been drawn down yet, so he does not mind whether they are upheld, so to speak, prospectively or retrospectively?

As the noble and learned Lord, Lord Hope, said in the very first debate, there is a wide gamut of cases that come before the courts, and we have to give remedial flexibility; that is what all of this is seeking to do.

[Lord Falconer of Thoroton (Lab)]

That is an interesting answer. If there are two judicial reviews going on and one holds, for example, that the regulations are unlawful—not in accordance with a statutory power—but says prospective-only, it is presumably open to a second judicial review, which might be going on in parallel, to say, “It is unlawful, and I argue for it not to be prospective-only, for the following reasons.” Would it be open to two judicial review courts to come to different conclusions on the same unlawfulness?

[Lord Wolfson of Tredegar (Con)]

We all know that judicial reviews have to be brought within three months of the act. Therefore, I suggest to the noble and learned Lord that it is highly unlikely that one will have two separate courts adjudicating on the same decision. If there were separate judicial reviews, they would be consolidated.

[Lord Falconer of Thoroton (Lab)]

Scotland and England?

--- Later in debate ---

[Lord Faulks (Non-Afl)]

He is in opposition.

[Lord Falconer of Thoroton (Lab)]

I disagree quite strongly with what the noble Lord, Lord Faulks, said about how suggesting that this part of the Bill be removed is irresponsible. As the impact assessment put forward by the Government indicates, if this part of the Bill goes forward, between 173 and 180 Upper Tribunal and High Court days would be saved, which they calculate at £400,000. We are talking about a saving of £400,000 if this goes through, according to figures advanced by the Government.

As the briefings we have received from a number of organisations indicate, the effect of Cart judicial reviews has been quite significant. Points of law have been established as being wrongly decided by the First-tier Tribunal and the Upper Tribunal. No criticism of those two tribunals is intended, but that is what happened. They have been of some considerable importance, particularly in relation to human trafficking, duress and asylum status.

In relation to the point about Lord Justice Laws, his judgment in Cart in the Court of Appeal utterly exploded the theory that, simply because it was a superior court of record, there could not be judicial review. It exploded that proposition—which had been the basis of saying that Cart was not the subject of judicial review—so totally that in the Supreme Court, the judges who gave reasoned judgments indicated that he had done such a great job in relation to that that nobody now sought to restore that argument.

I am against this provision in relation to Cart because it does two things which are bad. First, it removes the High Court from considering whether or not the Upper Tribunal has got it wrong. In England—I say nothing about Scotland—it is the High Court that is the absolute cadre that determines the development of the law and the quality of the law, and I am not in favour of it being removed from this for £400,000.

Secondly and separately, as Cart in the Supreme Court said, there are a range of options open to the Supreme Court as to what the test should be for allowing judicial reviews from the Upper Tribunal’s refusal of permission to appeal from the First-tier Tribunal. It considers the ranges, such as exceptional circumstances, or asks whether it should be on the basis of, “We will give judicial review when the Upper Tribunal should have given leave to review it”, or some combination of the two, or a breach of natural justice—something like that. It said that the Supreme Court had a quite broad discretion to determine what the filter should be.

In the report of the group that he chaired, the noble Lord, Lord Faulks, said that the way that judicial review should develop should be on the part of appropriate deference by Parliament to the courts, and by the courts to Parliament. What I took that to mean is that the courts should be very careful to make sure that, in every case they can, they give effect to what Parliament wants. I took the noble Lord’s reference to deference by Parliament to the courts to mean: let the courts develop the precise ambit of the process by which they will judge illegality or not.

I object to Clause 2, because what is happening here is that inappropriate deference is being shown to the courts. The courts have the power to decide what the filter should be. They made that clear in Cart. The Supreme Court can revisit Cart; it is seven years old and, anyway, it can revisit it if it is 10 minutes old. It, not the legislature, should decide what the filter is in relation to this.

The key thing about judicial review is that it is the main means—not the only means, but the main means—by which the courts uphold the rule of law. Our constitution is based on democracy and the rule of law. Although there are functions within government that determine, or try to protect the state from, breaches in the rule of law, the key vindicator of the rule of law is the courts. Why on earth, for £400,000, is the legislature galumphing in to this area when the courts themselves can give the precise limits of this? It is—perhaps the noble Lord will let me finish.

It is such a mistake to do this. It sets out an ouster clause; that may be used in future, but I am pretty confident that the courts will construe ouster clauses against the background, so the wording in one case may well not work in another case. What is wrong here is that the Executive should not be doing this, because the courts have the power to sort it out themselves, and they should. I apologise for not taking the intervention from the noble Lord straightaway.

[Lord Faulks (Non-Afl)]

The noble and learned Lord does not mischaracterise the conclusions we reached at all. Quite rightly, we emphasised the respect of the various parts of the constitution to each other and the importance of that. However, he omits to mention a fact we stressed: none of the judges who made a submission to us ever suggested that, when Parliament thought a decision was wrong, it was not appropriate to legislate to reverse the effect of that decision. To suggest that does not do violence to any of the principles that we identified—I think the noble and learned Lord and I would agree about those principles. As for the hourly rate of judges, with great respect, whether they are remarkably good value for what they do does not alter the fact that, if something is bad law, it needs reversing.

[Lord Falconer of Thoroton (Lab)]

There is a fundamental misunderstanding there. Of course, Parliament can reverse a judicial review on its substance. If the courts conclude that some social security regulations do not meet a particular provision, they can change those regulations and come to the same result they wanted to all along, which is fine. I am talking about the fundamental role of the court in relation to determining whether the Government are acting lawfully. In relation to that, namely the ambit in which the court will operate Anisminic onwards, as it were, do not interfere with it. Let the courts determine that. Ultimately, the limits of that have to be set by the courts and not Parliament.

[Lord Pannick (CB)]

The noble and learned Lord has raised a number of very valid points in opposition to Clause 2. I offer another, in response to the noble Lord, Lord Faulks, who emphasises that there must be finality in litigation. The problem with that argument is that Clause 2 itself recognises the need for exceptions. New Section 11A(4) specifies exceptions, in particular for a

“fundamental breach of the principles of natural justice.”

In my Amendment 19, I suggest we need a further exception for where the Upper Tribunal has made a fundamental error of law. The noble and learned Lord, Lord Falconer, gave a number of examples where there may be important areas of law that raise fundamental issues that go to the safety of the individual who is going to be removed to a place where they may face persecution or torture. I for my part do not understand why a fundamentally unfair procedure is a greater mischief in this context than a fundamental error of law by the tribunal system. In each case, the Upper Tribunal and the Court of Appeal will have declined to intervene. If the judicial review route is nevertheless to remain open, as Clause 2 recognises, for fundamental procedural defects, surely it should remain open for fundamental substantive defects.

I accept of course, as again the noble Lord, Lord Faulks, emphasised, that there will be claimants with no legitimate point who seek to argue that they fall within the exception, but that is equally true of an exception for fundamental procedural defects. In any event, the answer to that concern is to ensure that any application for judicial review, whether of substance or procedure, is looked at and addressed by the judge on the papers and within a very brief time period.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

1: Clause 3, page 4, line 39, at end insert—
“(c) manslaughter in circumstances where—(i) the death was not caused by dangerous driving or driving when under the influence of drink or drugs, and(ii) but for causing death or serious injury to the emergency worker, the unlawful act would have attracted a maximum sentence of less than five years imprisonment.”

[Lord Falconer of Thoroton (Lab)]

My Lords, on 24 November 2021, the Government announced in a press release that they were introducing into the Bill a provision that imposed a mandatory life sentence where a key emergency worker dies as a result of manslaughter. The introduction of that provision into the Bill was not the product of any debate in this House or the other place.

On 1 December 2021, the relevant amendment giving effect to the provision that there was a mandatory life sentence for manslaughter was tabled with the Table Office. On 8 December 2021, the matter was debated in this House. A large number of Peers spoke in the debate, including the noble Viscount, Lord Hailsham, the noble and learned Baroness, Lady Butler-Sloss, the noble Baronesses, Lady Fox, Lady Hamwee and Lady Jones of Moulsecoomb, the noble Lords, Lord Beith, Lord Pannick, Lord Carlile and Lord Marks, and the noble Earl, Lord Attlee. They gave a variety of reasons why the provision had particular defects; there was a range of detailed complaints about it. The noble Lord, Lord Ponsonby of Shulbrede, spoke on behalf of the Labour Front Bench and indicated that Labour accepted the amendment in principle but that there were problems with the detail.

Before there was a vote on the amendment itself, the noble Viscount, Lord Hailsham, suggested an adjournment to discuss the detail. There was a vote on that and it was rejected. There was then a vote on the amendment. Anybody fairly reading that debate would conclude that the principle of the amendment was agreed to—that this House agreed to the principle of a mandatory life sentence where an emergency worker dies as a result of manslaughter. However, nobody reading that debate could possibly conclude that the detail was treated as being resolved in relation to that.

One detail that affected many noble Lords was the consequence of having a mandatory life sentence for manslaughter if, for example, in a demonstration about, say, HS2, a demonstrator pushed over a police officer acting in the execution of his or her duty, who bumped their head—which would be common assault at worst—and died. That demonstrator would end up with a mandatory life sentence. They would not be saved from the mandatory life sentence by the exceptional circumstances defence.

This caused many people in the House considerable concern. I completely accept that the principle of the mandatory life sentence is no longer up for debate; that has been resolved. However, in conjunction with my noble friend Lady Chakrabarti—to whom I pay tribute for her work on this issue—I have crafted an amendment that does not touch the detail of the provision, in the sense that it leaves in place the principle agreed but says that, where the offence you would otherwise be charged with does not attract a sentence of more than five years, you will not be susceptible to it. This is to deal with the one-knock manslaughter case. It leads to justice and reflects where the House is coming from. I strongly commend the amendment to the House and very much hope that the noble Lord, Lord Wolfson, will address the detail.

--- Later in debate ---

For those reasons—and, frankly, with renewed regret that I am having to deal with this on the floor of the House when I could have had conversations about it in good time previously—I respectfully beg the noble and learned Lord to withdraw the amendment.

[Lord Falconer of Thoroton (Lab)]

I am incredibly grateful for the support from all around the House. I am particularly grateful to my noble and learned predecessor and my noble and learned successor for supporting me in this matter.

The response from the Minister was incredibly disappointing. It was bombastic and technical and failed to address the essential issue, which is: what about the “one knock” manslaughter case? The answer that came in the end appeared to be, “Actually, we intend to cover that.”

The Minister made one good point on the drafting. He is absolutely right that my draft covers only 17 year-olds because it refers only to page 4. I would have had to submit the same draft in relation to pages 5 and 6 as well, which, if I had got page 4 in, I am sure would not have made much difference.

This is such an important issue that I would have been tempted to obtain the opinion of the House. All around the House there has been support for it, but the only encouragement I get is the technical point the Minister made. It may be that when this comes to the House of Commons, the Government will consider that they could improve my drafting and get to the same result. In those circumstances, with regret, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

There would also be glaring and unjustifiable discrepancies with the penalty for breach of other sorts of prohibition on identifying a participant in a trial, some of which might have been imposed for a witness’s protection. I made that point in Committee. With respect, it was not directly addressed by the noble Baroness, Lady Chapman, and we therefore remain unpersuaded that it is appropriate to legislate selectively—

[Lord Falconer of Thoroton (Lab)]

Having very kindly accepted that the maximum is wrong, the Minister’s only point appears to be that it would put it out of sync with these others. What work is being done in the Ministry of Justice and when can we expect to see legislation bringing them all to a position where there is an appropriate maximum sentence? This matters very considerably to victims of a Section 1 crime.

[Lord Wolfson of Tredegar (Con)]

My Lords, it certainly matters. I am a little concerned that the noble and learned Lord has seen my notes because that was precisely the point to which I was coming when he intervened. I am grateful for the intervention and for the points made by my noble friend Lord Sandhurst and the noble Lord, Lord Faulks, which I endorse. We need consistency and a fair approach in this area. We will begin by drawing up, as my noble friend Lord Sandhurst invited us to, a list of relevant offences, to ensure that we capture this issue fully.

[Lord Falconer of Thoroton (Lab)]

I am sorry to interrupt again, but when that has been done, what is the next stage?

[Lord Wolfson of Tredegar (Con)]

There may be others, but I am coming to the next stage. The noble and learned Lord is very keen.

Also part of the framework is the law of contempt of court, which we must consider if we are to look at this area properly. In some circumstances, it might be an alternative to charging the appropriate breach offence, although conduct is usually dealt with as a contempt only where some harm to the administration of justice was likely. It also does not attract the investigatory powers which these offences attract.

My right honourable friend the Attorney-General has already independently asked the Law Commission to examine the law of contempt in this regard. I could not say this in Committee because at that point I was saying that we would invite the Law Commission to do it. In fact, they have already committed to such a review. We have asked them to add in the breach of anonymity offences, both for Section 5 and related offences.

The noble and learned Lord says “years”. It will take some time, but the alternative is to legislate on a piecemeal basis. I do not want to explain to a victim of FGM who is named why she is being treated less favourably than a victim of any other offence. We want consistency in this area. If we have a Law Commission to ensure that we look at the law holistically in an appropriate way, it will deliver a coherent approach to penalties for all offences involving breach of reporting restrictions.

Moving to Amendments 78C and 78D, the unduly lenient sentence scheme allows anyone—the CPS, victims, witnesses, or members of the public—to ask for certain sentences imposed by the Crown Court to be considered by the law officers, where that sentence is felt to be unduly lenient. I underline that point. Anybody can ask the law officers to consider referring the sentence to the Court of Appeal. I am afraid that a number of my colleagues at the Bar have taken the view that it is somewhat improper for Members of Parliament to invite the Attorney-General so to consider. I underline again that anybody can ask the Attorney-General to consider referring a sentence to the Court of Appeal. That is how the scheme operates. It is then for the law officers to decide whether to refer the case to the Court of Appeal, which may then decide to increase the sentence.

Amendment 78C places a duty on the Secretary of State to nominate a government department to inform victims of the details of the scheme. We recognise the importance of victims being aware of the scheme and being clear on how it operates. However, the duty is not necessary. The revised Code of Practice for Victims of Crime—the victims’ code—which came into force on 1 April, already provides victims with the right to be informed about the existence of the scheme. Furthermore, it includes a requirement for the witness care unit to inform victims about the scheme following sentencing. Therefore, that provision is unnecessary.

Turning to the timing point, an application by the law officers to the Court of Appeal must be made within 28 days of sentencing. The absolute time limit of 28 days reflects the importance of finality in sentencing. That point of finality in litigation is sometimes marked by a Latin tag, which I will not trouble your Lordships with, but it is particularly important when it comes to sentencing. While we will keep the operation of the scheme under consideration, including the time limit, there are no current plans to remove the certainty of an absolute time limit in any circumstances.

Amendment 78E would expand the circumstances where a whole life order would be the starting point to include cases of murder involving the abduction and sexual assault of a single person. I explained in Committee that of course we sympathise enormously with the concerns that underpin this amendment, but we do not agree with its purpose. Our current sentencing framework can and does respond to these horrendous cases. The courts can, and do, impose lengthy sentences that fully reflect the gravity of this type of offending and the appalling harm that it causes to families of victims and the community generally.

All those convicted of murder already receive a mandatory life sentence. The murder of a single victim involving sexual conduct has a starting point, when determining the minimum time to be served in prison—the tariff, as it is sometimes called—of 30 years. This can be increased depending on the circumstances of the individual case and the presence of aggravating factors. Additionally, as was demonstrated by the sentencing of Wayne Couzens for the horrific murder of Sarah Everard, there is an existing discretion to impose a whole life order if the seriousness of the individual case is exceptionally high, which Wayne Couzens received.

Amendment 82B, tabled by the noble Baroness, Lady Brinton, seeks to prevent the release on home detention curfew of any offender who has previously breached a protective order and who has been convicted of offences relating to stalking, harassment, coercive control, or domestic abuse. I set out in Committee the importance that we attach to this area. The noble Baroness was quite right to refer to my comments made in another part of the Palace at an event organised by the right reverend Prelate the Bishop of Gloucester, and I stand by them.

I have asked officials to consider the risks presented by such offenders, to ensure that all appropriate safeguards are in place to protect victims and the public and to ensure that unsuitable offenders are not released on home detention curfew. Once that review is complete, I will update the noble Baroness and the House. Despite the fact that we were not able to arrange a meeting in the last 48 hours, I or the Minister for Prisons will be happy to meet with her. I do not believe that legislating on this matter is proportionate or effective in safeguarding victims. The safeguarding can be achieved via the policy framework, without the need for any change in statute.

We are committed to ensuring that serious sexual and violent offenders serve sentences that reflect the severity of their crimes. For those reasons, I urge noble Lords not to press these amendments.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I am not going to try to adjudicate on that point, which seems to be a point of procedure, better left to those who know more about it than I do. I have listened very carefully to the debate, and points of principle have been raised. With genuine respect, however, I believe that I have set out the Government’s position on those points of principle. Kicking the can down the road—attractive as that can sometimes appear—will not achieve anything substantive.

[Lord Falconer of Thoroton (Lab)]

This is pretty shocking. There is a lot of support for the principle that the amendment could be so much better if it could be debated. I completely understand the noble Lord’s embarrassment. He does not want to go back to the Ministry of Justice and not have the amendment, but if you want good law, recognising that the Government want this, there is so much that could be discussed to make this provision better.

The noble Baroness, Lady Williams, agreed without any pressure on two things in relation to the additional protest measures. First, she agreed that they should come at the end of Committee and secondly, she did not move them in Committee because of the exact problem that has arisen in this case. She indicates the right way forward. We would greatly appreciate in the House if the noble Lord would show us the same courtesy that the noble Baroness, Lady Williams, showed us.

[Lord Wolfson of Tredegar]

I am very happy to be accused of all sorts of things, but I hope that nobody in this House believes that I act either towards it or towards any of its Members with discourtesy. We may have disagreements, but they are always, I hope, courteous. I am not in the least embarrassed about going back to the Ministry of Justice with or without anything. My task, as I see it, is to set out the Government’s position in this House and then the House has to take a view.

With great respect to the noble and learned Lord, I do not accept that this is a question of tweaking the provision or making it better. The points that have been put to me are really points of principle—people do not agree with this at all, while saying, “Of course we agree.” The matter ought to be presented to the House and dealt with by it today.