Assisted Dying Bill [HL]

Debate between Lord Carlile of Berriew and Baroness Jolly

Friday 7th November 2014 Lords Chamber

[Lord Carlile of Berriew]

My Lords, we come to a group of amendments, starting with Amendment 3, which stand in my name and those of the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Darzi, and, I am pleased to say, in one case, the noble and gallant Lord, Lord Stirrup. I am grateful to him for putting his name to that amendment.

I am gratified that we have had a serious and detailed debate on court intervention. I applaud the noble and learned Lord, Lord Falconer—

[Baroness Jolly (LD)]

My Lords, please could those leaving the Chamber do so quietly, as we have moved on to the second group.

[Lord Carlile of Berriew]

My Lords, I was about to say that I applaud the way in which the noble and learned Lord, Lord Falconer, accepted something that was not in his Bill and which, in my view, should have been: court intervention. That is an important principle. I agree with the noble Lord, Lord Pannick, whose amendment has just been carried, that it would not be right to say that we have not had a proper debate on the previous group of amendments. I make no complaint about that. However, I make clear that if there is a Report stage of the Bill, there will be further detailed debate on the issues we have discussed and those in this group, to which I will turn in a moment.

I just wanted to pick up on three remarks made in the excellent previous debate. One was made by the very distinguished lawyer, whom I admire greatly, the noble Baroness, Lady Mallalieu—which I suppose is an inevitable preface to disagreeing with her—when she referred to a legalistic obstacle course. The noble Lord, Lord Campbell-Savours, referred to congestion in the system, and the noble Baroness, Lady Murphy, who I see has left her place, said that my proposals were unworkable. I reject all those concerns. Indeed, I and those who have put our names to the amendments have sought to provide a very straightforward road map. It may at the moment look a bit like a menu, but this is a House of Parliament and your Lordships are Members of a debating Chamber. Like any other noble Lord, I hope, I accept that parts of what looks like a menu may be accepted and others rejected in due course. I respectfully submit that the amendments are worthy of consideration.

Briefly, I refer your Lordships to the rationale of each amendment, other than Amendment 3, which speaks for itself. Amendment 64 requires the court to be satisfied beyond reasonable doubt of certain things. Why “beyond reasonable doubt”, given that these are civil, not criminal proceedings? I have spent—I wrote on a piece of paper last week that I had spent 42 years at the Bar, but I had to consider afresh and added another two years as I was writing the piece I was preparing—44 years at the Bar and, throughout that period, I have dealt mostly with criminal cases in which there has been an assertion that death has been caused unlawfully. It always has to be proved beyond reasonable doubt so that the court is sure, as judges say to juries in murder cases. It is a straightforward proposition that, if Parliament is to allow one human being deliberately—not through double effect, of which the noble Baroness, Lady Finlay, spoke so eloquently earlier—to take the life of another human being, the standard should be “beyond reasonable doubt”.

Secondly, Amendment 64 requires the court to be sure that there would be breaches of Articles 3 and 8 of the convention. I mean by that that the court should be sure that the person concerned would be suffering from inhumane and degrading treatment by not being allowed to have their life taken with the assistance of another, and that there would be, to use shorthand for time’s sake, a breach of their right to privacy and family life.

Further, in Amendment 64, I suggest to your Lordships that it is important that the rights of others should be considered if they are affected by the applicant’s potential suicide. By that, I refer to wives and husbands, children and grandchildren, carers and other people who feel on strong grounds that the applicant is taking the decision—albeit with capacity—on an entirely mistaken basis that does not amount to breaches of Articles 3 and 8 of the European Convention on Human Rights. It seems to me common sense that they should be heard.

Finally, I suggest that the court may, in its discretion—please note that those words mean exactly what they say—allow other persons in addition to the applicant to be heard. In that context, we are aware, because the noble Lord, Lord Pannick, told us about it, that in the Nicklinson case the noble Lord appeared on behalf of an interested party—no doubt to enormous value, as one can see from the judgments in the case. It seems to me right that the court should retain the discretion, which might be useful in very early cases, to permit such interventions.

I turn to Amendment 67, which sets out part of the road map by which the Family Division would decide these cases. In personal injury cases and indeed in some others, the court is free to appoint an independent medical expert to assist the court. What that expert can do, if he or she is a good expert, is to look at the medical evidence produced by the parties, draw its threads together, discuss the medical evidence with other experts—it can be done at high speed—and present an independent medical view to the court. It is of course not the independent expert who decides; it is the judge and the court that decide. But I believe, and I have seen this happen in personal injury cases on one or two occasions, that such independent experts add considerable value, particularly if they put their report into writing. That does not mean necessarily that there has to be a dissertation. What I mean by writing is that there has to be a written record of the doctor’s view, which is always available to others.