Assisted Dying Bill [HL]

Debate between Lord Falconer of Thoroton and Lord Mawhinney

Friday 7th November 2014 Lords Chamber

[Lord Falconer of Thoroton]

I am obliged to everyone who has taken part in this important debate. Capacity is central to the Bill. May I indicate how the Bill operates, so that we can then address the question of whether the safeguards are sufficient? I completely agree with the analysis given by the noble Lord, Lord Faulks, as to what the question for us is.

What the Bill requires before the prescription can be given is that the attending doctor and the independent doctor have separately examined the person and the person’s medical records and each, acting independently, must be,

“satisfied that the person … has the capacity to make the decision to end their own life”.

In addition, as a result of Amendment 4, which was made this morning, a justice of the High Court of Justice sitting in the Family Division must confirm that he or she is satisfied that the person has the capacity to make the decision to end his or her own life. Capacity is defined by reference to the Mental Capacity Act, in Clause 12. The noble Lord, Lord Faulks, is right in saying that that gives rise to no tension; how it operates is that, in considering whether the individual has capacity, the doctors and then the court ask themselves whether that individual has a sufficient degree of understanding and judgment to take this obviously very momentous decision. That means an understanding of what the decision is and what its consequences are. That is how the law defines capacity; it is a matter to be considered on a case-by-case basis.

Are the safeguards sufficient? The amendments identify a number of possibilities. First, I take the amendments proposed by the noble Baroness, Lady Hollins. She suggests that there must be a psychiatric assessment in every single case. That should be so, she says, even if the two doctors are satisfied and the judge is satisfied. Then there is the Butler-Sloss/Colville amendment, to call it so colloquially, which says that only when you are not sure and there are doubts do you make the assessment. The Murphy amendment also says that only if you have doubts should you have a psychiatric assessment.

My own view on this, although I need to consider it very carefully, is that if you have any doubts at all you could not be satisfied, whether you were the doctors or the court. In those circumstances, you might think that the case was much too doubtful and stop it straightaway, or you might have doubts because you do not know and are not qualified enough, so you should refer it to a psychiatrist. Like the noble and learned Baroness, Lady Butler-Sloss, the noble Viscount, Lord Colville of Culross, and the noble Baroness, Lady Murphy, I am not inclined to say that you have to get a psychiatric assessment in every single case. In my judgment, there will be cases where it is clear that there is no psychiatric element involved and it is the right thing to do because of the particular circumstances —and the idea that someone has to get a psychiatric assessment may look, on the facts of the case, wholly inappropriate.

My inclination is to consider the amendment proposed by the noble Baroness, Lady Murphy, as the right one. I also need to consider whether one needs to put in the Bill the sort of process that I have indicated, which reflects to some extent the approach of the noble and learned Baroness, Lady Butler-Sloss, and the noble Viscount, Lord Colville. On the basis of the debate that we have had, I think that is the right way to go but I will reflect on what has been said and consider the extent to which this needs to be in the Bill.

I ask noble Lords to remember that, subsequent to their tabling their amendments, the Pannick amendment, if I may call it that, has come in, so a judge will consider this issue. He or she will consider not just whether the right process has been gone through but will have to be satisfied—it is a primary question of fact for the judge—that the person applying to get the prescription has the capacity to make the decision, so you have that final safeguard. If the judge is not satisfied or thinks that a psychiatrist should be involved, there is the protection. I suspect that we should adopt something along the lines of the Butler-Sloss/Murphy approach. The question asked by the noble Lord, Lord Mawhinney, was answered by the noble and learned Lord, Lord Mackay of Clashfern. If the noble and learned Lord says what my Bill means, I accept his comments readily and enthusiastically.

The noble Lord, Lord Carlile, drew our attention to proposed new paragraphs (a) and (d) of his Amendment 65. As I understand proposed new paragraph (a), you cannot be satisfied that the person has capacity if he or she is,

“suffering from any impairment of, or disturbance in, the functioning of the mind or brain … which might cloud or impair his or her judgement”.

Again, I think that is going too far. What happens if someone has a brain tumour that might impair their judgment but the doctors are satisfied that that person’s decision to take their own life is one that they have reached completely aware of all the circumstances? To take another example, suppose someone is depressed because they are going to die imminently but the doctors and the judge are satisfied that, although the person is depressed, which might be an appropriate response to what is happening, they are absolutely clear that that is what they want to do. Therefore, I think that the amendment goes too far. Proposed new paragraph (d) of the amendment states that the capacity of an applicant,

“is not the subject of influence by, or a sense of obligation or duty to, others”.

With respect, I do not think that comes under “capacity” at all because capacity is about whether someone can make a judgment. A person can be completely able to make the judgment and conclude that they hate being dependent on other people. You might think that that is inappropriate and be guided by what the noble Lord, Lord Deben, says, but you certainly have the capacity to do it, so, although we should consider this under other headings, I honestly do not think that is a capacity issue.

The noble and learned Baroness, Lady Butler-Sloss, indicated three other points. First, she did not like the word “commensurate”. I have not used that word; it was the noble Lord, Lord Glenarthur—take it up with him. Secondly, she was keen—in my view, rightly—that the word “satisfied” should be used, as it is in her amendment. The requirement for the two doctors is that they must be “satisfied”. The requirement in the amendment of the noble Lord, Lord Pannick, is that the judge must be satisfied, so I agree with her and I think that that point has been met. Her third requirement was that of training. Under the Bill, the second doctor has to be an independent doctor who is,

“suitably qualified if that doctor holds such qualification or has such experience in respect of the diagnosis and management of terminal illness as the Secretary of State may specify in regulations”.

I am sympathetic to the noble and learned Baroness’s point and I think that it would be appropriate for certain training requirements to be met before you can be an independent doctor in this context. Therefore, I hope that I have dealt with her point.

I have dealt with Amendment 54 in the name of the noble Baroness, Lady Murphy. As regards Amendments 71 and 151, the noble Baroness, Lady Hollins, made a point that I had not seen reflected in her amendments but I am sure that is my fault—that is, what is the position of somebody who has been sectioned under the Mental Health Act 1983? I have assumed that they would not have capacity. It is not specifically raised as I read any of her amendments. However, I will need to consider that important point. My immediate assumption is that, if you are sectioned, you could not possibly have the capacity to make this decision but we need to look at the position in relation to that.

I have dealt with all the specific points made on the amendments. The debate was fascinating, moving and gripping. One of the great temptations in these debates is to veer off from the amendment, because we are all so gripped by this subject, and go into issues that are slightly off piste. I know it is done with the best motives but I am keen that the Committee should give everyone’s amendments a proper shot. I am trying to be disciplined. I ask very respectfully, because the amendments are fascinating, can we try to focus a bit more on the amendments?

[Lord Mawhinney]

My Lords, while reserving the right to return to this subject on Report, for now I beg leave to withdraw my amendment.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord Mawhinney

Monday 31st January 2011 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, we welcome the amendment spoken to by the noble Baroness, Lady D’Souza, the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick. The amendment to reinstate public inquiries into Boundary Commission proposals provides your Lordships’ House with an opportunity to start edging back from the precipice. It builds on an amendment moved by the opposition Front Bench which your Lordships debated last Wednesday. Although the Cross-Bench amendment that we are debating is more restrictive than ours, we willingly support it in the interests of breaking the deadlock on Part 2. It is a sensible and practical proposal for which we are grateful.

Clause 12 will, if enacted, abolish completely—indeed, it would go further than that and ban—the right to hold a local public inquiry into the recommendation of a Boundary Commission. The Government have chosen to put in the place of a public inquiry an extended consultation period by written submission of eight weeks. It is our submission that this is not an adequate replacement. Part of the function of a local inquiry is to provide people with a fair hearing and an explanation of why a proposal has been turned down. That is essential to the legitimacy of the process and we believe that it improves the decision-making process as well. Perhaps one of the most telling facts is that in every single case where the Boundary Commission was proposing significant changes, such as an increase or a decrease in the number of constituencies in a particular locality, its initial proposals were in every case amended following a public inquiry, so public inquiries are at their most valuable when the recommendations under consideration are the most dramatic. That fact is particularly salient in the context of this Bill which provides for a boundary review based on a reduction of 50 constituencies and the new set of rules dominated by a rigid electoral parity rule.

As the heads of the four Boundary Commissions have made clear, those factors mean it is inevitable that the next review will result in considerable changes to the electoral landscape, so considerable in fact that the Bill states in Rule 9(2), in Clause 11, that the Boundary Commissions are not permitted to take into account Rule 5(1)(d),

“inconveniences attendant on such changes”,

when conducting the forthcoming review.

They can take account of inconvenience in future reviews, but not in this first one.

As we debated in your Lordships’ House last week—I recommend that your Lordships read Hansard to see the relevant quotes—even psephologists who are sceptical about the value of public inquiries have said that on this occasion, in this context, they should be retained. Indeed, they have made the point that, while political parties have tended to be the major participants in inquiries, the scale of change that will be brought about by the next review is likely to provoke a much greater level of involvement by individuals and groups of local people. That is one of the reasons why we on this side of the House have not been willing to drop this matter.

I accept that there is a case for amending the current provisions in the Parliamentary Constituencies Act 1986 so that boundary commissions have some discretion about whether to go ahead with an inquiry, even where the basic threshold is met. However, the amendment proposed by the Cross Benches addresses that issue. The amendment that we moved last week provided that element of discretion. The variation on our amendment, tabled by the noble Baroness, Lady D’Souza, the noble Lord, Lord Woolf, and the noble Lord, Lord Pannick, has tweaked the drafting on that point and made the position clear. We are grateful for that.

There is also the point about judicial review, made by the noble and learned Lord, Lord Woolf, in the dead of night last week, which he makes again today. I will not repeat what he said, because he said it a lot better than I ever could. His intervention on Wednesday was a powerful one and I very much hope that the Government will listen to it.

The Cross-Bench amendment keeps our initial six-month limit on a local inquiry but states that no secondary inquiry should be allowed. Given that these are very rare in practice, we have no objection to that change in the proposal.

I hope that the Minister, in responding to this debate, will be able unequivocally to accept this amendment. It has nothing to do with partisan advantage. It is a practical proposal concerned with the legitimacy of the process for drawing constituency boundaries. Helpfully and constructively, the noble and learned Lord, Lord Wallace of Tankerness, confirmed last week:

“It is not a fundamental principle of the Bill that there should be no oral inquiries.”.—[Official Report, 26/1/11; col. 1070.]

We have high hopes that the noble and learned Lord will enable us to progress in this matter by broadly accepting the proposal in the Cross-Bench amendment. I support the amendment.

[Lord Mawhinney]

My Lords, in the spirit of the Chamber, I want to make two simple and quick points. I make a comment about the thought of a local inquiry not only from the experience of twice having my constituency rejigged through the process, but also from my experience as the chairman of our party a number of years ago.

Local inquiries can occasionally develop a life of their own. I wonder about the six-month limit because I can fairly easily foresee a legal argument arising out of a consultation that had not been satisfactorily concluded in this six-month period. I say to my noble friends on the Front Bench that I have some concern about the concept of a public inquiry in this context. Having said that, I add something that they may not welcome quite so much. I very much agree with the noble Lord, Lord Pannick, when he said that the Boundary Commission needed some “discretion”—I use his word. I hope—indeed, I think the whole House hopes—that the Government will find it possible to meet the spirit reflected in what the noble and learned Lord, Lord Falconer, has said and what I am saying in sympathy with what has already been said: that whether it is a local inquiry or not—and I have concerns about the concept of a local inquiry—there needs to be some element of discretion for the Boundary Commission.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord Mawhinney

Monday 10th January 2011 Lords Chamber

[Lord Mawhinney]

Just for the record, I made no such implication as the noble and learned Lord has attributed to me. The point that I was seeking to make was that, whether the number of constituents is 65,000 or 90,000, it is perfectly possible for a Member of Parliament to handle that level of workload.

[Lord Falconer of Thoroton]

I apologise. I misunderstood what the noble Lord said. Obviously, further work would need to be done. I am happy to say that when I said further work was required, the noble Lord nodded—that is the point that I am making. First, what is the workload on a Member of Parliament and what is the right size for Parliament in relation to that consideration?

Secondly, what should be the basis of determining the constituencies? Of course, I think that it should be the electoral register, though there is an issue about population. There is a respectable view that says, where you have constituencies which have very significant populations which are much higher than the electoral register, those constituencies should, in some way, reflect that increase in the size of the population. For example, just as we have a geographical limit because we think it is too far for an MP to travel all around the constituency, is there a population limit above the electoral register which should have some effect on the size of constituencies?

Thirdly, the purpose of the deviation figure of 5 per cent from the electoral quota is to ensure that constituencies are broadly the same size. That would lead to a difference in the size of constituencies of about 7,000 if 76,000 is the average size of a constituency. The purpose is to get rid of what is described as the malproportion factor. Published work, in particular by Thrasher and Rallings, and by Lewis Baston, suggests that a deviation figure of 10 rather than 5 per cent would have the same effect in reducing the malproportion figure yet at the same time allow one, in determining constituencies, to keep communities together and not have the radical effect that the government proposals would have. What work have the Government done on whether 5 or 10 per cent would make a substantial difference to malproportion? Has any research been done on that? What effect on, for example, crossing county boundaries would a 10 per cent as opposed to a 5 per cent deviation have? The Government will not be able to answer all these questions; I am asking about the research that is being done on them.

Thirdly, what effect will this have on the Executive? Reducing the size of the House of Commons from 650 to 600 will increase the size of the Executive and reduce the number of Back-Benchers. Is it the intention of the Government to stick with that? If so, what effect will that have on Parliament as a place to hold the Executive to account?

Fourthly, what will be the effect of removing local boundary reviews that can be conducted in person? These reviews have had a 64 per cent effect on changing constituency boundaries. What work has been done to determine the effect on the reliability and acceptance of the boundaries that removal of the reviews will have?

If the Government will not answer those questions or have not done the work, the questions should be answered by somebody. This is not a great reform like the 1832 Act, as the Prime Minister said; it needs work doing on it. The effect of the amendment of my noble friend Lord Wills is that that work can be done. As my noble friend Lord Boateng said, our democracy is something that we rightly prize. The idea of rushing into this change, which has the support only of one side of the Houses of Parliament—let alone of either the country or the rest of the world—is wrong. It is not an acceptable justification to say that the Tory party agreed it with the Liberal Democrats between Friday and Tuesday after the latest general election. That looks like the worst sort of political gerrymandering. I ask the Government to reconsider and to give ground in relation to an independent look at the changes that they are making.