Terminally Ill Adults (End of Life) Bill

Lord Garnier Excerpts

Friday 27th February 2026 Lords Chamber

[Lord Beith (LD)]

I will speak briefly to my amendment in this group because it is my duty shortly to chair the Committee. To broaden the debate that the noble Baroness, Lady Cass, introduced, I simply say that there is clearly a need to establish that this post can have confidence and a degree of consensus around it. I am not sure that that has been achieved by what has been proposed so far.

My amendment simply brings in the procedure used in the Commons for most regulatory posts: they are the subject of some sort of hearing process by the relevant Select Committee. That system was developed in the years when I was in the Commons, and as chair of the Justice Committee I operated it several times. It works reasonably well. In rare cases, the Treasury Committee, for example, has a veto on the appointment, as this amendment suggests, but it is a means of trying to ensure that the right questions are asked at the right time when appointments are made. Surely, after recent weeks, we have learned the lesson that, if you do not have proper scrutiny of appointments and a system in which the right questions are asked, things can go very badly wrong. We certainly do not want them to go badly wrong in this area. That is sufficient to explain what my amendment is about.

[Lord Garnier (Con)]

My Lords, I am grateful that the noble Lord was able to introduce his remarks before he has to go and perform his functions as chairman of the Committee. I have only a few things to say, and my amendment is discrete, in the sense that it does not really affect much of the rest of the Bill. It can be taken quite briefly, and I hope that the noble and learned Lord, Lord Falconer, will be able to agree to it, not least because it bolsters the job that he once held.

With respect, I disagree with only one point that the noble Baroness, Lady Cass, made. The function of the commissioner is not simply administrative; there is a judicial element to their work, which is found in Clause 4(4)(d). One of the principal functions of the commissioner is

“determining applications for reconsideration of panel decisions under section 18”.

That said, I fully accept that it is a mixed-function job: it is partly administrative and partly judicial—but then so are quite a lot of senior judicial jobs. The Lord Chief Justice and the Master of the Rolls all have heavy administrative burdens as well as having to perform a judicial function, and no one would suggest, I venture to say, that those people should be appointed directly by the Prime Minister.

It is more constitutionally appropriate for the voluntary assisted dying commissioner to be appointed, as so many other judicial and quasi-judicial posts are, by the sovereign on the recommendation of the Lord Chancellor. I appreciate that the office of the Lord Chancellor has changed a lot since the 2005 Act—more’s the pity, in my view, but there we are. That was a long time ago. When I become Prime Minister, of course, I shall have it changed.

There is a nice distinction to be drawn with the appointments made in the way that I suggest. If my amendment is accepted by the Committee or by the House as a whole, it will obviously have a knock-on effect on the appointment of the deputy commissioner under paragraph 3(1) of Schedule 1—but let us not delay ourselves with that. All I am saying is that it is more appropriate for this particular function to be appointed by the sovereign on the advice of the Lord Chancellor, as so many similar posts are.

A Minister responding for the Government in the other place said that the investigatory powers commissioner is appointed by the Prime Minister, and he, like the assisted dying commissioner, has to be a sitting or retired member of the senior judiciary. But that is a false point. The distinction between this job and the investigatory powers commissioner is that the investigatory powers commissioner deals with matters of national security—which are essentially a matter for the Prime Minister—whereas this assisted dying commissioner will deal not with matters of national security, foreign policy or anything of that nature but simply with the workings of this Bill, or this Act as it may yet become.

This a very short and simple point that I am sure the noble and learned Lord can easily agree with, because it does not damage the Bill. It is simply a technical adjustment of the route to appointment, and I urge the Committee to support it.

[Lord Weir of Ballyholme (DUP)]

My Lords, I will speak to three amendments in this group, two of which stand in my name. The third is Amendment 128 in the name of the noble Baroness, Lady Foster, which I have co-signed and will touch on briefly now.

Amendment 128 is essentially probing in nature. The Bill lists the principal functions of the commissioner—we do not take particular exception to that—but does not outline their specific duties, so we feel that there is a bit of a gap at present and are probing whether the duties are correct and whether the commissioner has a role in ensuring effective oversight. I look forward to hearing the response of the Bill’s sponsor on that.

I move on to Amendment 129, following on from the remarks of the noble Baroness, Lady Cass. When I arrived today I did not anticipate that she would be my warm-up act in relation to the amendment—I thank her for her remarks. The amendment essentially deals with whether the commissioner should be required to be either a senior judge or a retired judge. In part it also has a slightly probing quality, and again I will listen to the remarks of the Bill’s sponsor. Given where the passage of the Bill has gone so far and where it might land—the situation is slightly fluid—and although I appreciate that, for instance, the noble Lord, Lord Carlile, has made suggestions on how we could inject a level of judicial introduction to the panels, we will probably be keen to press this on Report if the issue is not resolved and we are left with the current situation.

The reason for that is that when the Bill was introduced in the Commons, one of its core elements was the judicial function and, indeed, judges on the panels. That was one of the great selling points of the supposed—and slightly self-proclaimed, I have to say—safest Bill in the world. But that position has been resiled from and, although I am sure that the Bill’s sponsor will give reasons for it, we have moved away from that core element. If we do not have that core element of a judge on the panel, do we leave a situation in which the commissioner has to be either a senior serving judge or a retired judge? Would that create a veneer of judicial impact when the core element has been taken out?

That is all the more appropriate when we look at the functions that have been listed for the commissioner, of which there are five under Clause 4(4). Paragraphs (a) and (b) relate to “receiving documents” and compiling a list of eligible panel members. It is hard to see why those functions, which are essentially administrative in nature, would require a level of judicial input. Similarly, paragraph (c) relates to

“making arrangements in relation to such panels”.

Again, that function lies largely within administrative competence rather than requiring any element of judicial quality.

The one area that does touch on that, as has been highlighted, is paragraph (d), which talks about the reconsideration of cases, but cases are not to be reconsidered on their own merits. The Bill’s sponsor in the other place, Kim Leadbeater, said that the commissioner is

“not acting as a judge”,

so there is a query about the level of judicial impact even of paragraph (d). Finally, under paragraph (e) there will be a monitoring role, particularly as regards medical statistics. There is a question mark in relation to that. If we are looking for somebody to undertake that role, which I think was initially put within the remit of the Chief Medical Officer, it seems to me that a medical professional is much better suited to it. There are queries about the applicability and whether we are simply creating a façade of judicial involvement by having the requirements currently in the Bill.

My Amendment 496C would afford a person, if they desire it, the opportunity of a hearing before the commissioner, rather than their case being decided by a paper hearing. That would cover aspects such as someone being registered disabled under the Act, the availability of communication, cognitive impairment and mental distress, in the interests of justice.