Assisted Dying Bill [HL]

Debate between Lord Phillips of Sudbury and Lord Bishop of Oxford

Friday 7th November 2014 Lords Chamber

[Lord Phillips of Sudbury (LD)]

My Lords, it is in the very best traditions of this House that there is standing room only at this debate on a Friday. It is entirely appropriate, is it not, given the profound issues that are involved? I have no doubt at all that the country will be watching and listening to this debate in a way in which it perhaps has not done since the last of these debates, because this is one in a series. Like other noble Lords, I have taken part in all those debates; I come at the subject from having spent six years in the early part of my legal career as a part-time assistant to a part-time coroner and occasionally deputising for him. I was very vividly thrown up against the issues that are at the root of this legislation. I have to confess—I see the noble Lord, Lord Joffe, sitting yonder—that whereas I was wholly unconvinced when the noble Lord started his pilgrimage, the Bill contains the sort of protections that could make it one which we should support, given that it blocks off the thin-end-of-the-wedge fears that many of us had formerly.

I will make only one major point. We do not want to go from a situation where, as now, you have to be rich enough to go to Switzerland to get some sort of justice in these complicated matters. However, we could be in a comparable if lesser dilemma because of the cost which will attach to going to the High Court—with representation, as one would have to have—and getting an order. I have no doubt that the cost will be more than most of us expect and more than some of us fear, and legal aid is now available only to people at a very low level of income, and it will leave at least 80% of the public of this country unsustained if they wish to use the remedies that the Bill will provide. That is not right in a matter of death. One of the things we need to contemplate is whether we have some special arrangements for this life and death matter.

Secondly, the noble Lord who produced the Bill has done wonderful work, and those who tabled the amendments—the noble Lord, Lord Pannick, and my noble friend Lord Carlile—have also done great work. However, there is a huge number of problems at the back of either amendment; a great number of issues that have not been considered carefully, in the round, and reported on. I hope very much that we will not vote on these amendments now or indeed at all today, because we all need time to reflect on and contemplate them. However, I would like us to think about—and, if necessary, to form— an ad hoc group to report on whether one could not deal with the issue at the heart of these amendments just as well by having either a county court judge or a special panel of justices of the peace to determine the issues concerned. Some may think, “That’s not good enough”. As one who spent a lot of time in magistrates’ courts and county courts in years past, I do not hold that view. In some ways, given that the issues are—how shall I put it?—common-sense life experience issues that will have to be determined by whoever adjudicates on this, I am not so sure that a county court judge or a panel of magistrates might not be at least as good, competent and able to undertake the decisions involved.

[Lord Harries of Pentregarth (CB)]

My Lords, my name is down in support of the amendment in the name of the noble Lord, Lord Carlile, with the noble Lord, Lord Darzi, and I very much support the reasons he set out so cogently.

I was very glad to see the amendment in the name of the noble Lord, Lord Pannick, because it points in the right direction. I cannot support it, because I believe that doctors should not be involved at all in the final decision-making process. Under the noble Lord’s amendment, the courts would check that a good decision had been made, and they may ask for witnesses, as the noble and learned Baroness, Lady Butler-Sloss, said.

We need, for all the reasons set out at Second Reading, to take doctors out of the decision-making process altogether. I remind your Lordships of points made at Second Reading about the erosion of trust if a Bill such as this went through Parliament, and the minority of doctors who are willing to take part in the system—four out of five doctors are totally opposed to taking part in it, so only a minority of doctors would be willing to do it. That would lead to a lot of looking around for the right kind of doctors. I do not want to get into the business of knocking doctors—they have been in my family for some time; my wife and my son are doctors, and my grandson is on the way there—or weighing the relative merits or demerits of rogue doctors and rogue lawyers. However, we are not talking about individuals, but about the Supreme Court. The Committee on Standards in Public Life carried out a series of polls about how the public regard various professions, which shows that trust has been eroded in so many professions, but not in judges. Trust in judges remains at about 80%. That is a very significant factor; decisions made by the court on this issue, if we eventually went down this road, would be trusted by the general public.

I would just like to mention one point that has not been mentioned. I have a quotation from the noble and learned Lord, Lord Neuberger, in the judgment that the noble Lord, Lord Carlile, was discussing. He said:

“Quite apart from the notorious difficulty in assessing life expectancy even for the terminally ill, there seems to me to be significantly more justification in assisting people to die if they have the prospect of living for many years a life that they regarded as valueless, miserable and often painful, than if they have only a few months left to live”.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Lord Phillips of Sudbury and Lord Bishop of Oxford

Wednesday 15th January 2014 Lords Chamber

[Lord Phillips of Sudbury]

I am grateful for that. My noble friend is lucky in having had a letter. When I finished the conversation, the Charity Commission said to me that it would send a new communication forthwith to everybody who received the first one to make clear that this statement did not relate to the law as it will be after the passing of this Bill. That is just one small example of—

[Lord Harries of Pentregarth]

I am fortunate enough to have the original letter before me. I wonder what the noble Lord makes of the statement:

“We do not believe that in the best interests of public trust and confidence in charities an exemption for charities is the most appropriate method for the regulation of charities during an election period”.

There cannot be anything clearer than that. I know it is very disappointing for the noble Lord, but the Charity Commission has come out unequivocally in opposition to his amendment and I think he will have to face that.

[Lord Phillips of Sudbury]

My Lords, the noble and right reverend Lord, Lord Harries, is actually addressing a different issue in this letter. I was dealing with paragraph one. He is dealing with paragraph two, about public trust and confidence in charities, which I was about to come on to and which, if I may, I will deal with in a second.

I emphasise the fact that the Charity Commission has delivered to those in this House who are particularly involved with this issue some guidance in relation to the law—comparing electoral law with charity law—that leaves us at best in a state of some confusion. I think, as I will say in a minute, that the approximation of charity law and electoral law is now so close that to all intents and purposes it is in practical terms the same. However, as we know better than anybody on earth, the capacity of lawyers—and not only lawyers—to argue about that is infinite. When you get a letter such as this from the Charity Commission, you can see why.

--- Later in debate ---

[Lord Harries of Pentregarth]

The whole point of those provisions, which is where the sting is, is that you can campaign on and focus on an issue and that can be reasonably regarded as indirectly supporting a particular candidate or party, or you can even do so inadvertently. Let us be quite clear: charities are able to campaign on issues.

[Lord Phillips of Sudbury]

I am grateful to the noble and right reverend Lord for giving way, but he really cannot get away with that. You cannot inadvertently satisfy the requirements of Clause 26 when it says that you “intend” to promote or procure electoral success. Intention is not the same as inadvertence at all, and it is a very strong test. The fact that there are other matters that you are trying to advance at the same time does not get away from that test.

[Lord Harries of Pentregarth]

Then why does the Charity Commission guidance—and I have read carefully both its main guidance and its guidance in relation to the Electoral Commission—include a series of examples, just like the Electoral Commission, where charities may or may not be caught? This is a borderline area. Charities are able to campaign and to campaign vigorously, and many trustees encourage them to do so. Therefore, it is always possible for them to come within the scope of this provision.

If you take out charities, only two courses are open to you. Either you have an unlevel playing field so that you have a charity campaigning against a campaigning group which is not a charity, and the charity, if it were taken out, would be able to spend an unlimited amount of money, whereas the non-charitable campaigning group would have very strict limits on what it was allowed to spend, or the Charity Commission could set up a much stronger policing body than it has at the moment—one which would match that of the Electoral Commission.

[Lord Harries of Pentregarth]

My Lords, I take the point but it was important to state the argument because some people are understandably initially very attracted to this idea. It would lift the regulatory burden, and people are attracted to the idea of taking out charities. However, there are very strong, compelling and rational reasons why this should not be done, and that is why it is opposed by the Electoral Commission, the Charity Commission, the commission that I chair, the NCVO, ACEVO and all the others.

[Lord Phillips of Sudbury]

The NCVO has taken up—

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Lord Phillips of Sudbury and Lord Bishop of Oxford

Monday 16th December 2013 Lords Chamber

[Lord Harries of Pentregarth]

I absolutely agree that it is right to take precautionary steps, but I am sure that the noble Baroness would also agree that we must ensure that they are not disproportionate. The main complaint at the moment by charities and other campaigning groups is that this legislation is grossly disproportionate in the way that it bears upon them—I see the noble Baroness nodding her head.

I also have the utmost respect for the noble Lord, Lord Phillips, who is the leading charity lawyer in the country. But I have to agree with the points made by the noble Lord, Lord Hodgson. Perhaps I can approach the argument from another way. I carefully read CC9, which is the Charity Commission guidance. I also read the additional guidance that it provides for election campaigns. It makes it quite clear that charities are allowed to politically campaign. That is absolutely crystal clear. But as the noble Lord made abundantly clear, it is not always easy to draw a distinction between political campaigning in general and political campaigning that might be interpreted as supporting a particular party.

The noble Lord drew his hand across and said that there was a kind of hazy line. Does that not lead to the conclusion that the noble Lord, Lord Hodgson, made: namely, that if charities were taken out, they would have to have their own separate regime, employ extra staff, and keep in day-by-day contact with the Electoral Commission to make sure that their guidance agreed with the guidance of the commission? Would that not be a waste of resources? If charities are in fact in the same position as other groups, would it not be better for them all to be under the same regime?

I absolutely agree that there is a major difference and that charities cannot have political campaigning as their prime purpose. That is absolutely right. If the suggestion of the noble and learned Lord, Lord Hardie, about the definition of political expenses were accepted, of course charities could come out—but as long as they are allowed to politically campaign, that campaigning could be interpreted as supporting a political party or candidate.

[Lord Phillips of Sudbury]

Does the noble and right reverend Lord not agree that it is one thing politically to campaign—which is what charities can do—but another to do that in a partisan way? They cannot do that. That is a huge and fundamental difference between them and non-charitable NGOs.

[Lord Harries of Pentregarth]

I could not agree more, but as the noble Lord made clear, the difference between the two is sometimes a bit hazy and judgments have to be made as to when a particular charity has gone over the line.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Lord Phillips of Sudbury and Lord Bishop of Oxford

Tuesday 22nd October 2013 Lords Chamber

[Lord Harries of Pentregarth]

That is a valuable point and I thank the noble Lord, Lord Judd.

There is a whole range of other problems. If groups campaign on a particular issue, the total costs involved will be attributed to each charity. Some of the most effective campaigns in recent years have come about because charities have combined. There are particular problems in relation to Northern Ireland, Scotland and Wales, where the sum has now been reduced to a paltry £2,000 in the year. I am not going to deal with that now, but it might emerge in subsequent days.

Time and again we have heard the phrase “chilling effect” being used. Some people say that they cannot understand why charities are worried about it because there will be no curtailing of their freedom. It is the combination of these elements, the lower limits and the increased range of activities that count towards them, together with a continuing fundamental uncertainty about the definition of an electoral activity in practice that is making so many charities feel that their freedom to engage is in fact being threatened. The Government are worried about a large fish across the Atlantic called Citizens United and fear that it might swim over here, but instead of waiting for it to come, they have sent out a deep sea trawler which has thrown up a huge amount of sand and confusion from the bottom of the sea and put a net over charities which have been swimming quite legitimately in the waters of democracy. It seems quite absurd.

There is a case for including a number of activities in what counts for electoral purposes. I think that we can agree on that, although the question of staff time raises all sorts of difficulties, particularly in the case of voluntary time and whether it is workable at all. But what is strange is that all these activities are being brought together—the lowering of the threshold and an increase in the activities that count towards it. Will the Minister explain what the problem is that has given rise to this severe curtailment? It is rather like offering someone a sum of money for a piece of work and then telling them that the amount is being halved while at the same time they will have to complete a number of other tasks in order to earn the money at all. Surely if there were no reported problems before, and the number of activities is to be increased, the thresholds should in fact be raised, not lowered, in order to account for the ordinary activities that charities regard as part of their core duties.

As I have said, there is a logical case for including a lot of these activities, but will the Minister say something about how these charities are to assess volunteer time? The National Trust, for example, has thousands of volunteers. Are they to be taken into account?

[Lord Phillips of Sudbury (LD)]

I am sorry to interrupt the noble and right reverend Lord, because I agree with every word that he is saying. May I just shoot one canard? It has been raised more than once. Section 87(2)(c) of the 2000 Act says,

“the provision by any individual of his own services which he provides voluntarily in his own time and free of charge”,

shall not be controlled expenditure.

[Lord Harries of Pentregarth]

I thank the noble Lord, Lord Phillips. I hope very much that the Minister will agree with that.

There is just one other point I would like to make. The noble Lord, Lord Tyler, has suggested that the present definition of an electoral activity promoting or procuring electoral success at any relevant election is accepted by virtually everyone concerned. I think that charities have not in fact been quite so happy about that as he suggests. There is still genuine uncertainty because this is a genuinely difficult area. If, for instance, a campaigning group on climate change looks at the policies of the different parties and assesses them according to whether it thinks that their policies are desirable as far as climate change is concerned, does that count as an activity for promoting or procuring electoral success at any general election? It seems to me that people of good will could argue that either way. Therefore, is there not a need for government lawyers, Charity Commission lawyers and the lawyers of charities to get together to see whether this really is the best definition or whether we can come up with something better?