Terminally Ill Adults (End of Life) Bill

Lord Harries of Pentregarth Excerpts

Friday 9th January 2026 Lords Chamber

[Lord Pannick (CB)]

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

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

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

[Lord Harries of Pentregarth (CB)]

I wish to speak to Amendments 25 and 120 in the name of the noble Lord, Lord Carlile of Berriew, to which my name is attached. They are amendments which I believe go to the very heart of the Bill. It is vital that if the Bill eventually comes into law the system set up for approving requests for assisted dying should have the trust of the general public. We have to bear in mind that although people generally trust one another, trust in institutions is now at a record low; to put it another way, there is in our society now a deep distrust of official bodies.

However, having said that, there is one exception: the judiciary. Between 70% and 73% of the public trust judges to tell the truth, which is why we need a court-based system. The Member in the other place, when she introduced the Bill, argued that having a High Court judge would give the system an extra layer of protection against coercion and pressure, making it the “most robust” and safest system in the world. She was right in saying that. As we now know, however, she changed her mind, and the Bill comes to us in a very different form, with panels instead of a judge.

The main reason for the change was the view that the High Court did not have the capacity to meet another set of demands; hence the amendment in the name of the noble Lord, Lord Carlile, that requests should be dealt with by the Family Division. As he pointed out, although there are only 20 High Court judges in the Family Division, there are 40 other designated judges trained to hear serious cases; with this cohort there would be enough people available to hear requests for assisted dying.

The other reason for having a court-based system, which I find persuasive, is that a court has the legal powers to summon witnesses and order documents. If a judge had a concern about financial pressure being involved in some way, he or she could summon relatives or others involved to help him or her reach a decision. I am not aware that the proposed panel currently in the Bill will have a similar power. In Clause 17, “Determination by panel of eligibility for assistance”, the word “may” is mentioned eight times in subsection (4). The panel “may” call for this or that, but so far as I can see, it has no powers to make people comply.

We heard a very powerful defence from my noble friend Lord Pannick of the panel system with its experts and its other people. But I remind my noble friend that at the Second Reading of his Assisted Dying Bill in 2014, the noble and learned Lord, Lord Falconer, accepted an amendment from my noble friend to add a review of the Family Division of the High Court. He pointed out, rightly, that the Family Division deals with very difficult cases such as the Bland case or the separating of the Siamese twins, and he argued that they could deal with very difficult cases speedily and in time.

The noble and learned Lord, Lord Falconer, also told us that he disagreed with alternative proposals for the panel, which was, at that time, a panel of magistrates, not the kind of panel we have now. He said then:

“I think that you need the highest-quality judges to decide these issues”.—[Official Report, 7/11/14; col. 1881.]


The Times, in its leader on 15 December, described the move away from a court-based system to a panel as an “ill-advised about-turn”, and it was.

The noble Lord, Lord Shinkwin, and the noble Baroness, Lady Berridge, pointed to, quite rightly, the extra pressure that will be put upon the Family Division. But on the assumption that the Bill will go through—it has, after all, been voted on by the elected House—we have to ask ourselves: which is actually safer? Is it safer to have a court-based system or to have the panel? I believe that given that it is judges who are trusted in society, we should go for a court-based system, and I strongly support the amendments in the name of the noble Lord, Lord Carlile.

[Baroness Butler-Sloss (CB)]

My Lords, I am the only person in this House who was President of the Family Division. I did the final part of the Bland case, to allow him to die. I very much prefer the idea that we should have a court-based decision, for the reasons that have already been given. I am rising only to answer some of the points made by the noble Lord, Lord Shinkwin, and the noble Baroness, Lady Berridge.

First, judges try extremely difficult and emotional cases. I really do not think it is necessary for this House to consider the emotional impact of those cases because that is our job. If it is our job, we do it, and then we hope that we can cope with it. I tried endless life and death cases; I have to tell your Lordships that deciding that a baby should die was even worse than deciding that an adult should die, but it has to be done.

Secondly, I come to the proposal of the noble Lord, Lord Carlile, that not only the 20 Family Division judges should make these decisions but deputy High Court judges and the designated family judges; indeed, there are other judges in the family centres who are equally good. When I was President of the Family Division, I ticketed those family judges who were suited to try adoption cases. I see no problem in the President of the Family Division deciding on those judges and the KCs who are Section 9 deputy High Court judges to work out who would be suitable to try these cases. That would increase the number of judges available from 20 to all the part-time and other judges around the country. That is not the best solution—the best solution is the 20 judges—but the reality is that it would be necessary.

Finally, if Parliament passes this legislation and tells the Family Division and the other family judges that it is their job to deal with somebody who is likely to die within six months—although we all know how inaccurate that six-month figure can be—the judges will do it. They will then have to give priority to life and death cases, which they do anyway, even if it means that other important cases are kept waiting. Therefore, the delays in all the other cases have to give way to the requirement of Parliament that judges try the cases.

--- 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—

[Captain of the King’s Bodyguard of the Yeomen of the Guard and Deputy Chief Whip (Baroness Wheeler) (Lab)]

Could I ask the noble and learned Lord, Lord Falconer, to write to the noble and right reverend Lord about those things? We have had enough explanation from the noble and learned Lord. We need to move on to the noble Lord, Lord Carlile.