Assisted Dying Bill [HL]

Lord Gold Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Lord Gold (Con)]

My Lords, this is a dangerous Bill and should be rejected. The key issues I will concentrate on are hidden persuasion coming from the family and the burden placed on the judge having to decide whether to make an assisted dying order.

The Bill requires that the High Court must be satisfied that the applicant is terminally ill and wants to end their life. The evidence supporting this must come from two doctors, one of whom may be the applicant’s GP and the other an independent doctor. Beyond requiring that those two doctors have examined the patient and read the medical records, there is no stipulation about the time they must spend with the patient or the extent of the examination that must be undertaken. Not only must they certify that the patient is terminally ill and reasonably expected to die within six months—something that experts say is incredibly difficult truly to predict—but they must certify that the applicant has voluntarily reached a clear and settled intention to end their own life without any coercion or duress. How do they do that? It is simply by talking to the patient? Perhaps the medics talk to the patient’s relatives. We all know how overburdened general practices are. It is a rare luxury to see the same doctor twice, let alone regularly. Of course there are medical records, but how can a busy GP be expected fully to understand the mental capacity of a patient by simply relying on records and, if lucky, a 10-minute appointment, which nowadays is likely to be a telephone or video call?

Perhaps a private doctor is appointed, no doubt by the family. If the medics speak to the family, how do they know that they are not motivated by their own financial interests, especially where weekly payments to a care home are eating into their future inheritance? Hidden persuasion is the risk that by words or conduct the patient is made to feel guilty that they continue to live, that they are a burden and an expense on the family, and that it would be better for everyone if they were no more. How does one determine whether such hidden persuasion has occurred?

The Bill provides no safeguards. This makes it really hard for the judge. The Bill is silent on whether the court will appoint an amicus curiae to argue the case or whether the judge is to act in an inquisitorial capacity, himself quizzing the applicant’s counsel and perhaps the doctors. The intention might be that the application will simply be on paper, with no opportunity for the court to challenge the evidence or quiz the doctors unless something looks suspicious. This is wholly unfair on the judge and, more significantly, on the unwell applicant, whose interests and well-being are paramount. We should reject this flawed Bill.

Anti-Semitism: University Campus Incidents

Lord Gold Excerpts

Thursday 21st January 2021 Grand Committee

[Lord Gold (Con) [V]]

I congratulate both the noble Baroness, Lady Deech, on securing this debate and the noble Lord, Lord Wolfson, on joining your Lordships’ House and look forward to his maiden speech.

If university leaders truly want to stamp out anti-Semitism, they must take ownership of the problem. The tone from the top is key, but there must be actions, not just words. First, leaders must adopt the IHRA definition, now universally accepted, of antisemitism. Next, they must ensure that clear rules are in place which are enforced through a strong disciplinary process, and those breaching the rules must be disciplined—whether students or members of faculty. Importantly, disciplinary decisions must be promulgated widely as an example to others, making it clear that anti-Semitic acts will not be tolerated. Finally, there must be a safe environment for students to come forward and report problems, knowing that there is no risk of retribution for so doing.

Assisted Dying Bill [HL]

Lord Gold Excerpts

Friday 16th January 2015 Lords Chamber

[Baroness O'Neill of Bengarve (CB)]

My Lords, this is a clarificatory amendment looking at the purposes of the Bill. We might think that they are already entirely clear and I agree that in negative respects it is absolutely clear that this is not a euthanasia Bill. It is not comparable to legislation that exists in the Low Countries: it is something else. But I think we left Second Reading very unclear about what it is. It is labelled an Assisted Dying Bill, but its provisions are about assisting suicide. That makes a difference.

The evidence that the purposes of the Bill were not well understood at Second Reading can be seen in the number of speeches in which noble Lords related very sad stories about difficult deaths where the death would not have been eligible under this legislation, whether because it was a chronic not a terminal condition or because it was, although terminal, not the case that the person had the relevant mental capacity. It would be helpful to us all to focus on what the Bill is actually about, which is assisting suicide. As a number of noble Lords said at Second Reading, the legislation that is intended to be changed by this Bill is the Suicide Act 1961. It is intended to alter the provisions by which people aid and abet another person’s suicide. It should be very clear in the text of the Bill that that is what it is for. We all believe in truth in advertising. I suggest that we want clarity in legislation and the same sort of truthfulness. I beg to move.

[Lord Gold (Con)]

My Lords, I have put my name to this amendment because I agree entirely that we need certainty in our understanding of what this legislation is for. At the moment, although there is some reassuring language in the Bill, I do not think it clarifies what the noble Baroness has just stated, which is that this is a measure to assist suicide.

I am sure that all noble Lords have had correspondence—I have received many letters and e-mails—reflecting great uncertainty as to what this is all about. One of the things we in this House must do is make sure that, if we pass the Bill into law, we have spelt out exactly what it is for and the exact process that people will go through if they are to be able to take advantage—if that is the right word; I do not think it is, really—of this legislation. I hope that we will agree to clarify the position.

[Lord Brennan (Lab)]

My Lords, I rise to support the amendment for the following reasons. Parliament should speak the truth in legislation. In so doing, whatever degree of sentiment we strongly hold for or against an issue, when it comes to the very content of a statute there is no room for emotion and definitely no place for euphemism. The right words should be used in their right meaning. An Assisted Dying Bill could easily be understood to refer to a palliative care Bill. An assisted suicide Bill tells the truth, and the Bill should say that on its face.

It is a legislative irony that in Switzerland, which gave rise to Dignitas, the legislation specifically refers to suicide. At present, the word “suicide” appears only once in this Bill, in Clause 6(2), and that occurs because of statutory necessity. For the Bill to pass, the medical participant must be given an exemption from prosecution under that Act, otherwise the law will be broken. In the Bill’s present content the word is used once to amend a previous law, but not again.

It is necessary to use the word “suicide” because, first, death is normally a passive process. Medical participation in producing another person’s death is an active process. It involves the person wishing it, the doctor being satisfied and thus able to certify that it is reasonable, a process for use of the drugs that are to be given, and then the prospect of statutory provision. All of that surely requires clarity of expression. Secondly, it is necessary to better inform both our debate and public debate. In a Gallup poll conducted in 2013, 70% of the participants agreed with the proposition to:

“End the patient’s life by some painless means”,

but only 51% were ready to agree to:

“Assist the patient to commit suicide”.

The more bland and emollient the language used, the more acceptable the proposition becomes. The clearer the language, the more we are in touch with reality, and the better the decision to be made.

The Committee benefits from Members such as the noble Baroness, Lady O’Neill, with her clarity of thinking, accuracy of expression and modesty in presentation. I commend the amendment. Returning to my first point, there should be truth in legislation and, using her advice, we should pass this amendment because it is commensurate with the gravity of the issue with which we are dealing: life, or death, committed at the hands of a third party.

Assisted Dying Bill [HL]

Lord Gold Excerpts

Friday 18th July 2014 Lords Chamber

[Lord Gold (Con)]

My Lords, be under no illusion as to what will happen next if this Bill becomes law. Pressure will mount for further change. Whatever those supporting this Bill may believe or say, this will be the start of creeping euthanasia.

In the lead-up to this important debate today, we have seen much press reporting of heart-rending cases of really ill or disabled people who support a change in the law. The recent Supreme Court case brought by Paul Lamb and the family of Tony Nicklinson has highlighted the plight of patients who suffer acute physical incapacity. However, in Mr Lamb’s case, he is not “terminally ill” within the definition of the Bill; he is not reasonably expected to die within six months and would therefore not be entitled to seek assistance for his suicide if the Bill became law.

That is the case of many people supporting this Bill. Inevitably, it is only a matter of time before they seek a further change in the law to enable them to end their lives. Those noble Lords who might doubt this should look at how legislation of this kind has developed in Belgium and the Netherlands. Euthanasia for adults was legalised in both countries in 2002 and the number of deaths by euthanasia has increased substantially. It is expected to reach 6,000 this year in the Netherlands. This steep rise has been put down to the introduction of six mobile euthanasia units which travel around the country. With more than 70% of doctors in this country being opposed to this Bill, I believe that we will see a similar development. The noble and learned Baroness, Lady Butler-Sloss, asked where people will find a doctor. They will find them travelling around the country, looking for patients. Belgium now permits euthanasia for children. Identical twins Marc and Eddy Verbessem were both killed by lethal injection in December 2012, not because they were terminally ill, but because they were born deaf and were going blind.

The supporters of the Bill claim that they have provided adequate safeguards. These safeguards are fundamentally flawed. They will not prevent abuse. First, they do not protect against doctors getting it wrong or acting badly. Secondly, the two certifying doctors may have known the patient for only a very short time. Will they truly be able to say that the decision to commit suicide was voluntarily made? The Bill requires that the patient must have capacity to make the decision to end their own life. We know that many terminally ill patients suffer from clinical depression. Does such a patient have the capacity to decide to end their own life? How are these short-term doctors, travelling around the country, able to certify capacity?

I am worried about abuse in the form of what I will call low-key coercion: subliminal messages coming from what appears to be well-thinking family members, demonstrating to their loved ones how distressed they are at the condition they are in, at the pain they are experiencing. They will say, “We will be there with you. We will be with you constantly to give support”. We know from research undertaken in the United States that the majority of patients who have suffered assisted suicide have done so out of compassion for their family and loved ones, not because they have formed a clear and certain intention to end their own lives. Add to that the subliminal coercion to which I have referred and we have a most worrying risk that the Bill demonstrably fails to address.

We are concerned with some of the most vulnerable people in our society, whom I believe we in this House have a duty to protect. By passing this law, I truly believe that we will be failing to discharge that duty for the vast majority of these people, purportedly by giving a choice to some. What we should be concentrating on is not making it easier for patients to choose death. We should be concentrating on life and on improving the care of the terminally ill. We can deal with pain far better today, but let us really work on enhancing the quality of life for the terminally ill in their final days.

Social Welfare Law

Lord Gold Excerpts

Tuesday 25th February 2014 Lords Chamber

[Lord Gold (Con)]

My Lords, I am most grateful to be allowed to say a few words, even though I am not on the speakers list. May I first—

[Lord Phillips of Sudbury (LD)]

My Lords—

--- Later in debate ---

[Lord Phillips of Sudbury]

I gave it in at 10 o’clock.

[Lord Gold]

I will be as quick as I can be. I commend the noble Lord, Lord Low, and his team for producing such a thoughtful report. I also congratulate the right reverend Prelate the Bishop of Peterborough on an excellent maiden speech.

Although I accept, of course, that LASPO has reduced the scope for legal aid, it is not a new problem that there is a gap between what legal aid will support and the needs of those who have claims or grievances. One has to draw the line somewhere and there will always be deserving cases that cannot attract funding. The reality, as we all know, is that there is a finite fund of money available. The report identifies a number of ways in which this problem might be addressed, including recommendations for further government funding. The Minister will, no doubt, tell us what government support there might be for the Low funding proposals, including the Government’s view on taxing pay-day lenders. However, at a time when the Government are still looking to cut expenditure, I am not optimistic that further funding will be available. I would therefore like to propose that much more might be done by the private sector on a voluntary basis.

Now that I am no longer part of a large legal firm, I feel better able to offer others assistance. Paragraph 8.19 of the report rather delicately suggests that law firms might consider offering some funding support. I would suggest another course, similar to that suggested by the noble and learned Lord, Lord Hope. Solicitors’ firms which undertake litigation work have been concerned for some time that, in training their young solicitor advocates, they have not been able to find sufficient cases where they can develop their skills. I know that all large firms encourage their solicitors to undertake pro bono work and a great number of legal advice centres are part-manned by young solicitors wanting to put something back into society. That could easily be extended to provide much assistance in both advisory work and, where necessary, through court advocacy, by tapping into what I think would be a willing resource. Many sets of chambers would welcome such an initiative and I am sure that the Bar and Law Society will support that.

I know that the Low report suggests that it is unrealistic to consider that pro bono help could replace publicly funded legal help, particularly as the laws and regulations can be complex. However, it is the lawyer’s stock in trade to run with something new and complex, and I have no doubt that there are sufficiently talented young lawyers around willing to help that those requiring assistance may well find themselves better represented than they might otherwise have been.

British Bill of Rights

Lord Gold Excerpts

Thursday 20th June 2013 Lords Chamber

[Lord Gold]

My Lords, I start by thanking the noble Lord, Lord Lester, for initiating this debate. I acknowledge his tremendous contribution in the area of human rights.

The Human Rights Act was regarded as the UK’s Bill of Rights and was described as such on its introduction into law. Nevertheless, by a majority, and after referring to many difficult issues, not least relating to Northern Ireland, Scotland and Wales, the commission supported the proposal that the UK should have its own Bill of Rights.

So why are we now considering having another UK Bill of Rights? Is there something wrong with the first one? Does it go too far? Perhaps it does not go far enough. If I understand the report correctly, and as the noble Lord, Lord Lester, confirmed in opening the debate, the main reason appears to be that we are lacking right now,

“public acceptance of the legitimacy of our current human rights structures, including of the roles of the Convention and the European Court of Human Rights”.

The majority of members of the commission accept Liberty’s submission that,

“there is a lack of public understanding and ‘ownership’ of the HRA”.

These same members believe that that applies equally to the European Convention on Human Rights and the European court, so that many people feel alienated from a system they regard as European and not British. The majority also believe that public perceptions will not change even if there is better public education of the Human Rights Act and its structures. Therefore, their answer is to support the creation of a UK Bill that incorporates and builds on all the obligations prescribed by the European convention. Merris Amos, a senior lecturer at Queen Mary College, argues that,

“starting again with a UK Bill of Rights, containing identical or better human rights guarantees, might overcome these difficulties”,

of acceptance and perception,

“and create more of a sense of ownership amongst the general public”.

There is no evidence that that is correct. It is a hunch, and a very expensive one at that. Assuming that Parliament is persuaded by the force of this argument, before any UK Bill of Rights could be introduced it would be necessary to consult widely. We would also have to find a solution to the difficulties identified by the commission and mentioned by the noble Lord, Lord Lester, and others, notably relating to Scotland, Northern Ireland and Wales. All that will take time, will be very expensive, and inevitably will not happen before the next election.

It seems that the main complaint with the present system is that we have to pay regard to decisions made by the European Court of Human Rights in Strasbourg. It has been mentioned by several of your Lordships this afternoon. Some people see this as interference by a foreign body in domestic matters. For example, the court’s ruling on prisoner voting has angered many people, as have the difficulties experienced in seeking to deport non-citizens found guilty of serious crimes.

In the well considered paper headed Unfinished Business, written by my noble friend Lord Faulks QC and Jonathan Fisher QC, appended to the commission’s report, there is reference to the inefficiency of the court and the quality of some of the judges there, as well as to the fact that the court has so far failed to heed calls for reform. The noble Lord, Lord Lester, mentioned the need to improve matters in that court. Their answer is to support the proposal of this UK Bill, although they accept that the problems,

“posed by a judicially activist court could be resolved if effective reforms were agreed and implemented by the Council of Europe”.

The commission submitted proposals for reform of the court in an interim report issued on 28 July 2011. A meeting of the Council of Europe was held in Brighton in April 2012. Despite the UK pressing for reform, this was rejected. My noble friend Lord Faulks and Mr Fisher conclude by supporting the idea of a UK Bill and canvass the possibility of the UK leaving the convention.

I respectfully disagree. In my view, it would be a backward step for us to turn our backs on the convention. Even if we went ahead with our own Bill of Rights, it would risk giving a very bad message as to the UK’s commitment to human rights and would likely spur on the critics seeking to make capital in relation to every change of language in the UK Bill.

I believe that there should be a different approach, recognising that there has been a little progress. English judges have been moving away from the notion that they are strictly bound by the jurisprudence of the European court. While respecting the boundaries of the convention, the Human Rights Act recognises and encourages the development of independent domestic rights jurisprudence. The English courts are taking the jurisprudence of the European Court of Human Rights properly into account, but are not necessarily bound by its decisions. I believe that for the present we should make a concerted effort to win over public confidence in the European convention by making the British public more aware of what the English courts are doing. I am not persuaded that we should embark now upon the costly, time-consuming and difficult task of proceeding with a UK Bill. As I have said, I do not believe that cogent evidence is available to show that that would be better supported by the British public. Instead, and despite the considerable difficulties, which I acknowledge, we should seek again to reform the European court, as has already been proposed and attempted. The Prime Minister should add this to his agenda when he begins negotiations for wider reform.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Gold Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Gold]

My Lords, the Bill proposes many sensible changes to the civil justice system, although this debate has highlighted some serious issues of disagreement, particularly in relation to legal aid. I was certainly heartened and encouraged by the Minister’s comments at the beginning of the debate that he is here to listen and I hope that he will be sensitive to some excellent speeches that we have heard this evening. Today, perhaps because I am looking for safety, I am going to concentrate my remarks on Part 2 of the Bill, which deals with litigation funding and costs, a subject of which I have some knowledge. I feel guilty to say that I have very little knowledge of legal aid.

At the outset I formed a somewhat simplistic view of the Bill—not the easiest thing to do, as it happens. Accepting that some reform of the legal aid system was required to reduce the high financial burden on taxpayers, it seemed to me that in order to continue providing access to justice to all, which is certainly desirable, one answer was to encourage greater use of private funding through conditional fee arrangements and “after the event” insurance to plug the hole left by the reduction in legal aid. Accordingly, it did not sit well with me that in Part 2 of the Bill, which largely seeks to implement Lord Justice Jackson’s recommendations, private funding was being limited through the abolition of the recoverability of success fees, which has been the cornerstone of conditional fee arrangements and of ATE insurance premiums. Surely, I thought, what we should be doing is making it easier to fund litigation privately so that any reduction in legally aided cases would to some extent be alleviated.

Many commentators on the Bill, including the Bar Council and the Law Society, have expressed grave concern that the effect of these proposals will be to limit access to justice as many claimants who cannot obtain legal aid will be reluctant to risk losing and having to pay their own legal costs as well as those of the other party. Indeed, the Law Society goes sufficiently far as to suggest that the ATE market is likely to collapse. Having reflected on these submissions, I am much more sanguine and believe that the negative predictions of the system collapsing are somewhat exaggerated. In practice, a claimant who has the benefit of a conditional fee arrangement and after the event insurance may well not be required to pay anything towards the cost of the litigation. We have heard a lot about that today. Whatever his own costs, he may well not have to bear anything at all.

There has to be some merit in the action in the first place, otherwise neither the lawyers nor the insurers would be prepared to fund the claim. However, in assessing whether to agree to offer a CFA and ATE, I am sure that some account is taken of the effect that such an arrangement is likely to have on the opposing party when it is known that the claimant has a free run to trial and no risk of having to pay any costs whatever the outcome. Even the toughest of defendants will realise that there may be commercial sense in settling with such a well funded opponent.

The Government’s proposals seek to remove the ability to recover either the success fee or the premium for ATE insurance. Instead, it is proposed that on a capped basis both the success fee and the insurance premium must be financed from the damages award that is made. We have had some criticism of that today from many noble Lords. To help compensate the claimant for this financial burden, the Government propose that damages awards should be increased by 10 per cent. However, that will not be sufficient to bridge the gap. Some critics say that this is unfairly eating into the compensation being awarded to a claimant. The noble Baroness, Lady Turner of Camden, made that point very clearly and very well. The result, of course, is that victims will no longer receive 100 per cent of their compensation. A second complaint, as I mentioned earlier, is that the ATE insurance market is thought likely to collapse. Thirdly, the legal services market is thought unlikely to be willing to absorb the greater losses that cases of lower value, higher risk or greater complexity would present. Solicitors will be disinclined to take on anything but the most winnable cases.

I now want to compare the position of these claimants with that of litigants who receive no financial aid and have to finance their claims themselves. First, one can be sure that self-financing litigants do not usually risk having to pay their opponents’ costs by bringing claims that do not have a good chance of success. Those who pay are more cautious than those who have no risk, or, to be somewhat colloquial, have no skin in the game. Secondly, as the noble Lord, Lord Hunt of Wirral, who is sitting next to me, pointed out—what seems like many hours ago—the victor in civil litigation never recovers all of his costs. That is so, even when so-called indemnity costs are awarded. As a norm, the winning party may recover something in the order of 60 per cent of his total bill. He has to finance the balance and he has to do that from the damages awarded. In other words, the successful self-financing claimant is not able to keep for himself the whole of his damages award. A proportion of it will go to his solicitors to bridge the gap between the solicitor’s bill and the money recovered from the losing party. Why should litigants who enter into CFAs and take out ATE insurance be in a better position? Why should they not give up some part of their award to pay the costs?

Finally, are the proposals in the Bill likely to bring down the ATE insurance industry? I do not think so. First, I believe that the ATE insurance market is more resilient than many fear. I do not know the figures. None of those writing to me—I have had many letters and e-mails—has indicated how much money is being made by the ATE insurance market, but I suspect that it is rather a large figure. If I am right, there will be room for the insurers to swallow some of the cost by reducing their premiums and thus reducing the cost that claimants have to contribute from their damages award. It is a question of finding the right balance. I would hope that, with a little pressure, we could move in the right direction.

For all of these reasons, I believe that what the Government are seeking to achieve in the Bill, so far as funding is concerned, should be supported. The present system does not achieve the right balance. I fear that the availability of CFAs and ATE insurance has encouraged some, who otherwise would have been wary of litigating, to bring claims on the basis that they have nothing to lose and everything to gain. I suspect that a number of claims would not otherwise have seen the light of day. That is not to say, of course, that these claims lack some merit. Indeed, if one is to give access to justice to all who want it then theoretically we should actively pursue a course that allows such claims to be brought even if, ultimately, they fail. However, asking taxpayers to fund claims that non-funded claimants would not themselves bring because they are too speculative and therefore risky is not the answer.

Our legal aid bill in this country is too high. As the former Justice Secretary, Jack Straw, acknowledged at the beginning of 2009,

“legal aid per head in England and Wales is higher … than in any other country in the world, including common-law countries”.—[Official Report, Commons, 26/1/09; col. 28.]

As the noble Lord, Lord Clement-Jones, said just a few minutes ago, the legal aid bill is now £2 billion a year.

As for outside funding, I suspect that this will be harder to obtain in smaller cases where solicitors and ATE insurers may calculate that it is unlikely that they will recover a sufficiently high figure to cover the costs and provide even a partial success fee. In truth, it may well be that these smaller cases are not financially viable unless supported by legal aid.

The Government’s answer, which I wholly support, is to encourage greater use of mediation. If the parties can be persuaded to mediate their claims at an early stage, perhaps before litigation has commenced and substantial legal costs have been incurred, there could be considerable benefit to the parties. It is far better for them if moneys are used to settle the dispute rather than to be spent on lawyers’ fees. Indeed, in some cases, the parties themselves may mediate claims without lawyers being instructed. With the right encouragement to mediate and help from an experienced mediator who ensures that each party is helped through the process and treated fairly, I envisage that many disputes will be settled at a far earlier stage than is the case once proceedings have been issued and entrenched positions are taken.

I should declare an interest in that I sometimes sit as a mediator, but not in cases of the size that we are discussing today. My experience is limited to dealing with large civil cases where mediation usually occurs late in the day after considerable work and costs have been incurred. If the Government’s present proposal of encouraging mediation is to succeed it is imperative that it happens at an early stage before the costs have been racked up.

There is much detail in this Bill to review in Committee but I hope, as I said at the start of this speech, that the Government will be sympathetic to some of the very moving speeches that we have heard today.