Terminally Ill Adults (End of Life) Bill

Baroness Coffey Excerpts

Friday 9th January 2026 Lords Chamber

[Lord Pannick (CB)]

My Lords, the noble Lord, Lord Carlile, made a very powerful case, if I may say so, for judicial control to provide the independent scrutiny that we all agree is required in some form to ensure that the criteria of the Bill are satisfied in individual cases. However, I offer a contrasting view. Although I have the greatest of admiration for His Majesty’s judges—some of my best friends are judges—I do not think that they are the only people, or indeed the best people, to decide alone the grave issues that we all agree are raised by this Bill.

I say in response to the noble Lord, Lord Carlile, that the Committee should bear in mind what the Bill actually provides for in Schedule 2: before anyone is able to take advantage of its provisions, they must satisfy the panel that the criteria in the Bill are met. Who is on the panel? It is not simply a judge; it is a panel of three people who have a range of expertise that is, in my view, highly desirable in this sensitive context.

First, you need a legal member. It is right that there should be a legal member, because some of the issues are very much legal issues and judges have particular expertise. The legal member must either hold or have held high judicial office as a judge of the Supreme Court or the Court of Appeal; as a judge or deputy judge of the High Court; or as one of His Majesty’s counsel. They may also have been requested to act as a judge of the Court of Appeal or the High Court. So you need a legal member.

However, you also have on the panel a psychiatrist member; that is highly desirable in this sensitive context. You have a registered medical practitioner who is a practising psychiatrist, registered in one of the psychiatrist specialisms in the specialist register, sitting alongside the legal member. Then you have someone who is registered as a social worker to add their perspective on the difficult issues—these are difficult issues—raised by eligibility under this Bill. So you have three people and a range of expertise—

[Baroness Coffey (Con)]

I am interested in the noble Lord’s view of the panel. I appreciate that he is discussing Schedule 2, but there are parts of this Bill where a unanimous decision of that panel is not needed, so it is quite possible that the medical person could be overruled by the others.

[Lord Pannick (CB)]

With great respect, that is not my understanding. The next point I was going to make is that paragraph 5(3) of Schedule 2 answers the very point just made by the noble Baroness. It states:

“The panel is to be treated as having decided to refuse to grant a certificate of eligibility if any member … votes against a decision to grant such a certificate, or … abstains from voting on such a decision”.


The noble and learned Lord, Lord Falconer, will say if I am wrong, but my understanding is that, with great respect, the noble Baroness is wrong. The unanimous view of all three members of this panel is needed before the provisions of this Bill are operative.

[Baroness Coffey (Con)]

May I probe the noble Lord a little further? In the evidence given by witnesses to the Select Committee, it was said that somebody should not be allowed simply to abstain; and that, if these people are being appointed as professionals to these panels, they should express a view. At the moment, expressing no view is deemed to mean being in favour.

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[Baroness Coffey (Con)]

My Lord, this is an enormous group of 80 amendments and 16 clause stand part notices, some of which I have tabled. I recognise that the majority of the amendments are about establishing a judge and court-led process, about which I have added various amendments. Separately, there are important issues. I am particularly impressed by Amendment 116, about deleting Clause 3 and not using the Mental Capacity Act 2005 but replacing it with the new proposals. My noble friend Lady Berridge has already asked some questions on that, but the reason I bring it up at this point is that I want to speak particularly to Amendment 426, which would introduce court proceedings.

I was particularly struck by proposed subsection (6), which refers to it being

“beyond reasonable doubt that … the applicant has capacity”.

It does not directly refer to the new amendment, but I am considering some of the debates that we have had, which I do not want to repeat. The key point that is that the Mental Capacity Act is used every day by health professionals, but on balance of probabilities not on beyond reasonable doubt. This is why I support the approach of the noble Lord, Lord Carlile, in bringing forward—reintroducing, in effect—the process that was in the Bill when it started in the Commons where more than half of MPs voted for it. When the judge role was removed when it came to Third Reading, fewer than half of MPs voted for it. There was a substantial reduction in support. Although I accept that there was still a majority, it was down to 23.

I am conscious that what is not in the amendment proposed by the noble Lord, Lord Carlile, is whether the court proceedings should be held in public. I tabled Amendment 426A because it is my understanding that it is not the usual practice of the family court at whatever level to sit in public. I think this is an important element that needs to be considered. Indeed, it is what is proposed for the panels that are considered elsewhere. I have gone further in my Amendments 426B, in particular, which is more of a probing amendment, and 426C. One thing that the late Sir James Munby said about why he did not think this should be done by High Court judges is that it was not clear whether this was just rubber-stamping or whether the judge was being used to make a determination, a decision, about some of the things.

Going back to Amendment 120, the structure that the noble Lord, Lord Carlile, has put together is about inserting a requirement for reports to be provided that would help the judge to make that decision. It is important that we do not end up, as happens, in effect, with a lot of tribunals around the country, making decisions on the papers. This is a life-or-death decision. I appreciate what the noble Baroness, Lady Hayter of Kentish Town, said about when, but it is actually about how somebody dies, about a medical professional not just withdrawing treatment, as we mentioned on some other issues, including the Bland case, and which happens regularly now, but supplying lethal drugs to help somebody take their own life. It is different in that regard, which is why I am attracted to the proposals that were originally in the Bill, which would be reintroduced by the amendment proposed by the noble Lord, Lord Carlile.

I am conscious that not everybody may be fit to attend physically, but I think that that connection between the person who is asked to make the determination about whether somebody has capacity and whether there has not been coercion of whatever kind is important, and that is why I have put forward these probing amendments for us to consider. Ultimately, we are trying to work out how we make this element safer. What was said on Report in the Commons is that the general approach is now safer than a judge-led process. I am not convinced by that. I do not need to repeat the arguments that others have made, but I respect the role of judges in making these decisions, particularly in the family court.

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[Lord Lemos (Lab)]

I ask the noble Baroness to draw her comments to a close. The time indicator is flashing.

[Baroness Coffey (Con)]

Yes, I will. I am just saying that it is really important that we get statistics, and that this becomes the premise of the Lord Chancellor. This will be critical to making sure that we have confidence going forward and I will have to work out a way to reassess these amendments in future groups.

[Lord Empey (UUP)]

My Lords, I am indebted to the noble Lord, Lord Carlile, for bringing to a head one of the critical issues in this legislation. As one of the diminishing number of people in this House who is not a lawyer, I say that we have to find our way through this labyrinthine structure where we have chambers and all sorts of things. Without legal experience, it is difficult even as a legislator to navigate through this.

The point I want to make at the outset is that this significant piece of legislation started off in the other place with the legal process as a fundamental part of the architecture. That was subsequently changed more than half way through its process in the other place, and now we are trying to re-inject it into the system. I would ask the sponsor and indeed the Minister to respond to this. There are so many issues that have been raised already this morning about the consequences of making this change, for which we have absolutely no information whatever.

I remind colleagues that, on our last Friday, there were five separate issues—I repeat, five—to which no response or answer was provided. They were: the issue between England and Wales, the issue between England and Scotland, the issue of pregnant women, the issue of homeless people, and the issue of prisoners. There is no clarity on any of that.

The noble Lord, Lord Carlile, and his co-signatories are attempting in these amendments to at least make the legislation, as the noble Baroness, Lady Finlay, said, less unsafe. The stage we are at in this legislation is probably 75% or 80% of the way through the process and, as with a Meccano set, we are still bolting bits on and taking bits off.

All of this could have been avoided if we had had the proper process of a Royal Commission and a government Bill. This is Heath Robinson-type legislation on such a serious issue. I have to say to the sponsors that, instead of battling this out for the next few months, they would be far better to go to the Government and ask them to appoint a commission and get on with it. Then we would not have to fight our way through this morass.

Not being a legal person myself, I ask the noble Lord, Lord Carlile—given the pressures that we understand are applied to the courts and the Family Division—whether there is a case for the creation of a special chamber for people who are dedicated to this, with the training that would be required. Or, with the pressures that the family court is under, could it be that comparatively junior people end up being designated to hear these cases? Because you are talking about a huge gap in knowledge and experience on a life and death issue.

Maybe these questions cannot be answered now—maybe we will get answers when we come to Report—but the fact is that we are having to ask all these questions and we have no information, no numbers and nothing in front of us. I do not believe that that is a coherent and sensible way to go forward.

The noble and right reverend Lord, Lord Harries of Pentregarth, made a very valid point about the general public’s confidence in who makes such decisions. While I can see the merits, as the noble Lord, Lord Pannick, pointed out, of having a panel with different disciplines, the fact of the matter is that persons who are on that panel have to be appointed by somebody. Is there confidence in the people who appoint them? The court system, however, has a level of public confidence miles above any alternative.

All of these things need to be sorted out. They should have been sorted out before we had this debate today and they have not been. That is where we are. I think that the noble Lord, Lord Carlile, is attempting to put a foundation under this legislation. Leaving issues of principle out of it for the moment—we are legislators and sometimes we have to do things that we do not want to do personally—we are obliged to undertake this process. I assume that he is trying to put a foundation underneath this legislation that would command confidence among the general public, or at least a higher level of confidence than, I suspect, the panel process has. The fact that we have had this change and this flip-flop is very concerning.

I conclude by asking the noble Lord, and indeed, necessarily, the Minister: if these amendments were to be accepted by the sponsor, what would be the Government’s response? The noble Lords, Lord Harper and Lord Gove, have raised this, as have others. I understand that Ministers are in a difficult position. They are technically dealing with a Private Member’s Bill, whatever some of us think about that. Without having knowledge of what the state is going to do, we are legislating for the state to intervene to allow a person to end their life, which is against other legislation that we have already passed. So it is important that the Government should let us know what their responses will be in these various scenarios and I do hope that, when we come to the wind-up of this debate, we will get some clarity.