Arbitration Bill [HL]

Lord Mance Excerpts

Second reading committee
Tuesday 19th December 2023 Grand Committee

[Lord Mance (CB)]

My Lords, I shall make just a very brief intervention. First, I disclose that, since retiring from practice as an arbitrator in the Supreme Court, I have also taken part in the representations which were made to the Law Commission, and indeed met with it, and I was one of the judgment writers in a case called Dallah against the Government of Pakistan, which forms part of the background to the clause which amends Section 67.

I echo the congratulations to the Law Commission on its responsiveness and diligence in this matter. The fact that the most significant clause in practical terms emerged only part way through the consultation process shows the commission’s willingness to listen. The way it has dealt with this seems largely satisfactory. I hear what was said about the words “of itself”, which must be read against the background that, as my noble and learned friend Lord Hoffman said, express agreement otherwise is required. There may be a difference regarding Scottish law here, which says simply

“Unless the parties otherwise agree”.


It does not require them “expressly” otherwise to agree. However, that sort of nuance will probably not be decisive. I suspect that the courts will make good sense of Clause 2, even though it looks a bit awkward.

I will say a few words on the important question: what is the approach to review? This will depend in part on the nature of the rules that are permitted to be made under Clause 11. However, I heard the Minister say that the aim was that the challenge should not be de novo. That is an oversimplification; the position is quite nuanced. In new subsection (3C), provision is understandably made for circumstances whereby someone, having argued a jurisdictional point before a tribunal, then seeks to raise objections that they could have raised but did not previously, or seeks to allow evidence that they could have adduced but did not before the tribunal. Not surprisingly, that sort of conduct, without good excuse, potentially will be sanctioned, assuming rules giving effect to new subsections (3C)(a) and (b) are passed.

Otherwise, the scene is largely discretionary. New subsection (3B) simply indicates what type of provision may be made by rules where the tribunal has already ruled, and new subsection (3C)(c) prescribes that,

“evidence that was heard by the tribunal must not be re-heard by the court, unless the court considers it necessary in the interests of justice.”

Like my noble friend Lord Verdirame, I emphasise that it can be important to retain the ability for a court to review de novo the jurisdictional basis on which a tribunal acted, so long as it does not fall foul of one of the situations that I mentioned. It is wrong for a tribunal’s analysis of its own jurisdiction to be axiomatically final. That would be a classic case of bootstrapping and there is a considerable risk—which, I am sure, escapes no one —of conferring on to individuals the power to be arbiters of their own powers. It is healthy to have a review.

That is also internationally contemplated. Take the New York convention, which contemplates that the court of the seat will have an important role in reviewing, among other things, the jurisdictional basis of an arbitrator’s activity if the arbitrators have exceeded their jurisdiction in setting aside their award. The convention also contemplates that enforcement courts may have a parallel role, although their activity may be subject to considerations of issues of stop law and abuse of process if there has been a prior decision by the court of the seat or, indeed, by another enforcement court.

I join my noble friend Lord Verdirame in what he said on this area. Otherwise, I strongly commend the Bill.

Assisted Dying Bill [HL]

Lord Mance Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Lord Mance (CB)]

My Lords, in my former judicial capacity in the Supreme Court in the case of Nicklinson, which the noble Baroness, Lady Bakewell, has mentioned, I was one of the clear seven-to-two majority who said that this was not a matter for judges but for Parliament to decide. In my current legislative capacity, I welcome the opportunity to join in this debate.

Suicide is decriminalised, yet assisting suicide remains criminal—probably a unique exception to the principle that you can only be an accomplice to an act that is itself criminal. If a person may choose freely to commit suicide, what justifies a refusal to allow them to obtain willing assistance? The question arises in the tragic context of imminent death where many will wish to determine the hour and manner of their death when, as we have heard, their palliative drugs may not always alleviate, and it needs answering with reference to the interests of society at large as well as all concerned.

Some may believe that the underpinning principle remains that suicide is still really a wrong, an offence against the sanctity of life even by the person committing it. Its decriminalisation is then a matter of simple pragmatism, a recognition of the incongruity of punishing people whose attempts at suicide fail. I think everyone agrees that the sanctity of life is certainly an important principle, but everyone also agrees that individual autonomy and dignity in life and in dying are two other important principles, and they can tug in different directions. A balance has to be struck.

There are many examples, some already touched on by the noble Lord, Lord Purvis of Tweed: the right of a patient to refuse or insist on the withdrawal of medical treatment, and the power of doctors, with the imprimatur of the court, to withhold further life support or sustenance and medical treatment in a case where the patient is in a state meaning that they can no longer choose for themselves, as in the famous case of Bland and the case of the conjoined twins, which I am sure noble Lords know. One important distinction drawn in those cases is between the voluntary decision of an informed adult of sound mind to do an act, including one that will or may lead to death, and the means that another person may have provided to enable that informed decision. Again, a decision in the judicial House of Lords to which I was a party, Kennedy in 2008, identifies that distinction with clarity: the second person providing the means cannot be regarded as causing the voluntary act or death of the former person.

The present Bill is very careful to recognise and give effect to that basic distinction. All that it permits is the provision of assistance to a person wishing voluntarily to commit suicide, wishing freely to choose to do that—see Section 4. Amending the Bill to refer to “euthanasia” rather than “assisted suicide” would therefore be an exercise in deliberate linguistic distortion. The Bill should not be killed by misdescription.

In summary, the Bill requires us to weigh a balance of factors: the clearly established and pressing considerations of autonomy and dignity in life and death for a narrowly defined group of persons who wish to exercise free will, and on the other hand the risks generally stated to others, particularly vulnerable members of society, who it is feared may be or feel pressured to commit suicide. In that connection, it is of fundamental importance that the Bill contains careful provisions for comprehensive medical and judicial involvement. I do not share the scepticism of the noble Lords, Lord Gold and Lord Hastings of Scarisbrick—although this is not my field—about judicial involvement. Lord Wilson in Nicklinson had no concern and indeed recommended some of the precautions that the noble Baroness, Lady Meacher, has taken on board.

Subject to listening to the rest of the debate, my present view is therefore that Parliament should accept the present carefully limited and balanced Bill. It is certainly not committing itself to striking the same balance in some other context or tailcoating on the position in Canada.