Assisted Dying Bill [HL]

Lord Framlingham Excerpts

Friday 7th November 2014 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, I have put my name to Amendment 2 along with the noble Lord, Lord Darzi of Denham, and the noble and right reverend Lord, Lord Harries of Pentregarth, and I wish to speak to Amendment 2 now. It is always a pleasure to follow the noble Lord, Lord Pannick, and I both agree profoundly and disagree profoundly with the amendments that he has just proposed. I need to explain very briefly why I agree, because he has given a very cogent argument for that aspect of the matter, and, at a little more length, why I disagree. I and the two other noble Lords who have signed Amendment 2 have also signed a number of others and I will explain why in a moment. They propose a very different judicial system from that which has just been advocated by the noble Lord, Lord Pannick.

I agree with the noble Lord that there should be a court-based system. Indeed, that is what the Supreme Court, in the case in which he appeared with distinction, appears to have advised. The judgments in the Supreme Court are not uniform, of course, and a degree of interpretation is required to distil common themes from them. But in my view there are some. I often take train journeys from Euston to the north-west or mid-Wales and as I get on the train I show my ticket to the person standing at the platform entrance. Then the train manager comes round and asks for my ticket again, and, to my intense annoyance, never asks me for my senior railcard—he takes it for granted that I have one. I am sure other noble Lords here suffer the same indignity from time to time and wish it were otherwise. In a sense, that is a metaphor for my view of what is proposed by the noble Lord, Lord Pannick. What he has proposed is not a robust, analytical, court-based, evidence-founded system of whether it is right in law for a person to be given assistance to commit suicide. The way it has been drafted gives the court the opportunity to verify whether the procedures set out in the Bill have been carried out. There is no merits-based assessment in his recipe and I reject that approach.

That said, I agree entirely with the noble Lord that the Family Division of the High Court is extremely well equipped to deal with these cases. The adjudication on the switching off of life support machines, on Jehovah’s Witnesses refusing operations that involve blood transfusions and on other similar issues was very nobly pioneered by the Family Division of the High Court, particularly under the presidency of the noble and learned Baroness, Lady Butler-Sloss, who I am delighted to see in her place. The Family Division of the High Court contains on its bench real experts on issues that cover not only the nuts and bolts, complex as they are, of family life, but also the moral, ethical and even philosophical issues that may move decisions as to whether, for example, deaths should be allowed to take place in a particular way by the switching off of a life support machine. There is no doubt that the expertise lies there.

The clue to what I and the other two noble Lords who have kindly signed my amendment wish to do is actually to be found in another amendment, which we will debate in the next group. I think it is right to draw your Lordships’ attention to the very last amendment on the Marshalled List, Amendment 175, which provides that an applicant may,

“apply to the High Court of Justice for assistance with suicide if they consider that in the absence of such assistance their rights under Schedule 1 to the Human Rights Act 1998 would be breached”.

In other words, our court-based system is an evidence-based system which would require the High Court of Justice Family Division to decide whether there had been a breach of convention rights and, in particular, the convention right under Article 3 and, as it is always spoken of in this context, the article right which covers family life, privacy and so on.

The philosophical difference between me and the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer, on this is about where the real decision-making should lie. In what I am sure I can be forgiven for calling the Falconer-Pannick approach—I hope I will be forgiven for the shorthand—we have a medical model for decision-making. In my approach, with the noble Lord, Lord Darzi, and the noble and right reverend Lord, Lord Harries, we have a court-based approach to decision-making. I much prefer the experience of the courts and the court-based approach.

My father was a general practitioner. He was born in 1904. He practised in two countries in two very different capacities, spending the last decades of his life practising as a general practitioner in Lancashire. He was a very wise and reasonable man—my mother used to say I took after her. He always used to say to me that there are some wonderful people in the medical profession, but there are some terrible rogues as well, including famous ones, such as Dr Shipman. I spent 10 years, to my father’s great delight, as a lay member of the General Medical Council, and I saw a procession of outrageously badly behaved doctors going through the GMC conduct and health committees. They were very difficult to detect. It certainly did not amuse me as it amuses one or two senior Members of your Lordships’ House sitting opposite me who really should not find this a laughing matter.

I turn to the reason why we propose what we do, for there is a rational basis to this. I turn to exactly the same points as the noble Lord, Lord Pannick. I refer to the judgments in the Supreme Court of the noble and learned Lord, Lord Neuberger, the president of the court, and Lord Wilson. As the president of the court, the noble and learned Lord, Lord Neuberger, obviously has a very important role to play and is seen to represent a view, perhaps a corporate view of the court, although it does not flow from this case necessarily. Lord Wilson, as he pointed out during his judgment, has a very important role to play because he is by experience a very senior family court judge and has widespread experience of matters relevant to this issue.

It seems to me—other noble Lords may disagree with this—that two themes emerged from the Supreme Court judgment, if one can draw themes from 130 or so pages of several judgments, which is not easy. The first theme that emerged is that their Lordships thought that there is a possibility—they did not put it much higher than that—or perhaps something between a possibility and a probability, that there may be cases in which the Suicide Act, as amended, is incompatible with the European Convention on Human Rights and that therefore there might be a case, which has not arisen as yet, in which there might be what is called a declaration of incompatibility between existing United Kingdom statutory law and the European Convention on Human Rights. I am going to leave out of all today’s discussions that I raise any question about whether we should still have the European Convention on Human Rights because I think all reasonable people agree that if we did not have the European convention, we would have a convention with at least the same rights in it, so I park that point and hope that we do not have to return to it later.

Lord Wilson said that Parliament might consider setting up a situation in which the Family Division of the High Court would consider a large number of matters upon which evidence would be required to satisfy the court that there would indeed be a breach of convention rights justifying a declaration of incompatibility. My view is that declarations of incompatibility between European convention law and UK statutory law are extremely undesirable because they stir up the sort of political argument which I adverted to briefly a moment ago about whether we should have the convention at all. Lord Wilson said in paragraph 205 of his judgment that,

“Parliament might adopt the procedure approved in the F and Bland cases and require that a High Court judge first be satisfied that a person’s wish to commit suicide was … voluntary, clear, settled and informed”.

He then set out in his list a to r—a long list—factors which the court might wish to investigate before deciding whether it could be so satisfied.

My Amendment 2, and all my other amendments on the judicial model, which we will be debating later, seek to provide exactly what Lord Wilson had in mind. I shall not go through the list from a to r because I do not want to take up undue time in your Lordships’ House as we have plenty to debate, although I would strongly recommend to your Lordships that nobody should speak on this issue without being able to put their hand on their heart and say that they have read Lord Wilson’s judgment, or at least paragraph 205. However, it includes, for example, the nature of the individual’s illness, physical incapacity or other physical condition; the aetiology of the condition; the attitude, express or implied, to his proposed suicide on the part of anyone likely to benefit, whether financially or otherwise, from his death; the motive of the person proposing to give assistance; and any financial recompense or other benefit likely to be received by such person in return for or in consequence of the proposed assistance. Those are just five of the factors in the a to r list which he set out.

What I propose to your Lordships—in my view this is something that should have been taken up by the noble and learned Lord, Lord Falconer, in redrafting his Bill, as I believe he should have done, to a court-based model—is intended to provide—I do not speak for perfection in drafting—a complete court-based model in which the merits could be considered by a court in a proper way, just as it is done in other cases now. I believe that a system of this sort—contrary to the views which I conscientiously hold, by the way—might allow some cases of assisted suicide in those cases where it was shown beyond reasonable doubt that there was a breach of the relevant articles of the European convention.

[Lord Framlingham (Con)]

My Lords, I am not a lawyer, but I want to get something quite clear. Is all this happening while the family and the patient are wondering what is going to happen? Just how long is it likely to take?

[Lord Carlile of Berriew]

That is a very good question and I am very happy to answer it. Those who have studied these cases as they go through the Family Division know that it is capable of dealing with them very quickly indeed, according to the needs of the case. I believe that these cases would be given sufficient priority for them to be dealt with within a reasonable time—by which I mean days rather than months if necessary. There is really no difference between me and the noble Lord, Lord Pannick, on this subject because we both require the cases to go before the courts.

I should like to complete this because I have taken nearly a quarter of an hour and I do not want to take more than that—[Interruption.] This House must not seek to stifle debate on serious issues.