Assisted Dying Bill [HL]

Lord Pannick Excerpts

Friday 7th November 2014 Lords Chamber

Moved by

[Lord Pannick]

1: Clause 1, page 1, line 2, at beginning insert “Subject to the consent of the High Court (Family Division) pursuant to subsection (2),”

[Lord Pannick (CB)]

My Lords, it is a privilege to open the Committee stage of this important Bill, the significance of which is demonstrated by the very large number of your Lordships who are present today. The Second Reading debate on the Bill was commended by many observers outside the House as illustrating the expert scrutiny that this House applies to legislative proposals, and I am confident that your Lordships will demonstrate again today the enormous value of this House.

In the first group I shall speak to Amendments 1, 4 and 24, which are in my name and those of the noble Baronesses, Lady Neuberger, Lady Mallalieu and Lady Shackleton of Belgravia. I shall speak briefly because we have much business to get through. I support the Bill, but I think that adequate safeguards are essential. It would be improved, and some of those who are concerned about it may be reassured, if judicial safeguards were to be added.

These amendments would require that the person concerned must satisfy a judge of the Family Division of the High Court that they have made a voluntary, clear, settled and informed wish to end their life. Judges of the Family Division already decide the most profound questions of life and death. Can doctors separate two Siamese twins, knowing that one will die but that the operation is necessary to save the life of the other? Should the life support system be turned off for Tony Bland, a victim of the Hillsborough disaster who was in a persistent vegetative state? Judges already decide these questions of life and death—and, tragically, there are many of them—in a principled manner but also with great compassion, and, where necessary, they decide them speedily.

In the Nicklinson case, decided in our Supreme Court in June—I declare an interest because I represented the organisation Dignity in Dying—some of the judges suggested that a judicial safeguard for assisted dying would be appropriate and would provide greater protection for the vulnerable than they have under the present law. The noble and learned Lord, Lord Neuberger, the President of the Supreme Court, said at paragraph 108 of his judgment, that less protection for the vulnerable is provided by the current system of a lawyer from the DPP’s office inquiring after the event into the motives of the person who provided the assistance, and whether the individual concerned was voluntarily ending their life, than under a new law that would require a judge to be,

“satisfied in advance that someone has a voluntary, clear, settled and informed wish to die and for his or her suicide then to be organised in an open and professional way”.

The noble and learned Lord, Lord Wilson, at paragraph 205, and the noble and learned Baroness, Lady Hale, at paragraphs 314 to 316, spoke to similar effect. I respectfully agree with them, and I hope that your Lordships will too. Amendments 1, 4 and 24 would provide for these judicial safeguards. I beg to move.

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[Lord Falconer of Thoroton (Lab)]

My Lords, I express my gratitude to everybody who has contributed to this short debate. It has been an excellent debate. I completely agree with what the noble Lord, Lord Winston, said: there should be a proper and full debate, because the sorts of decisions that this House has got to make are extremely grave.

I think that the issues in this short debate can be divided into effectively two: should we have any court-driven process to give greater protection; and if we should, what should that court-driven process be? The noble Baroness, Lady Wheatcroft, put most clearly the view that there should not be any court-driven process because it might deprive some people of the opportunity to use the Bill. The fear of going to court, the expense of going to court and how they feel at the time might well be a barrier. I am very conscious of that argument—from time to time, it has been high in the mind of many people—but my own view, having heard the debate at Second Reading, having heard the debate here and having spoken widely to people who might be involved in the decision, is that what would give much greater confidence regarding the Bill would be some sort of judicial process that raised the minimum barrier to people using the Bill but provided protection.

In the course of this debate, people have sought to say, “Well, it’s got to be the judges and not the doctors”. I think that it has got to be both, because you cannot even get to the judge unless two doctors have indicated that the person is terminally ill and, as far as they are concerned, the person has a firm and settled view to do it. However, I do not think that one can leave it to doctors alone, in particular to form two views: first, on whether it is the voluntary, clear, settled and informed wish that somebody wishes to end their own life; and, secondly, whether they have the capacity. I have been worried about whether the courts could deal with this quickly enough, but I have looked quite deeply into that. I am very influenced by points of the sort that the noble Lord, Lord Ribeiro, made. I think he will agree that the blood transfusion cases to which he referred are inevitably incredibly urgent, and the court could deal with them. The noble Lord, Lord Patel, referred me, not in the debate but separately, to the emergency caesarean section cases. Again, they are urgent. The noble and learned Baroness, Lady Butler-Sloss, who has experience in this matter, spoke very persuasively of the speed with which the courts can deal with such cases, and the conjoined twins case was done very quickly.

I am worried about the costs issues. The noble Lord, Lord Faulks, gave some reassurance by referring to the exceptional funding. I cannot imagine a more grave decision than one such as this, and I hope that well meaning people in the Government would make sure that it applied to it.

In principle, therefore, I think that judicial process, although it may deter some people, will ultimately give greater protection. Which of the two options should one choose? Under the Lord Pannick option, if I may call it that, one could get the prescription,

“only if the High Court … by order, confirms that it is satisfied that the person … has a voluntary, clear, settled and informed wish to end his or her own life”.

That means that the High Court will have to decide whether the person has voluntarily decided to do this, which means that there is no coercion. In addition, the court has to be satisfied that the person has the capacity to make the decision. So it will be a primary decision for the courts.

In addition to those requirements, the amendment in the name of the noble Lord, Lord Carlile, says that the court can allow this to happen only if it is satisfied that the person is suffering what is the equivalent of “torture”—that would satisfy Article 3—and that not to allow it would be a breach of their Article 8 rights. I respectfully submit that those are very high hurdles and are utterly inappropriate to a Bill that basically says, “Your free will should determine it”, but I completely adopt what the noble Lord, Lord Reid, said about free will, properly examined, as being right.

This is a very difficult issue and the main one that we have got to decide today. I have heard what the noble Lords, Lord Phillips and Lord Campbell-Savours, said. They asked whether we could find an alternative, perhaps the magistrates or a committee of well meaning people in the community. Honestly, those ideas sound great, but they just will not work. I think that you need the highest-quality judges to decide these issues, and I do not think that the proposals being made there are really sensible.

People have said, “Let us not have votes today”. I think that we should resolve this issue today. We have had a very full debate. It is a matter for the noble Lord, Lord Pannick, whether he wishes to divide the House, but I am strongly of the view that we have debated this long enough. We have debated it very fully today, and very fully at Second Reading. My position is that I accept the arguments made, that there needs to be some degree of additional oversight. I believe that the proposal made by the noble Lord, Lord Pannick, is the right one, and I think that the time has come for this House to make up its mind on this very important issue.

[Lord Pannick]

My Lords, it has been a valuable and informed debate on the most profound moral issues. Like the noble and learned Lord, Lord Falconer of Thoroton, I of course respect what the noble Baroness, Lady Wheatcroft, says—that people who wish to end their life should not be impeded by a legal procedure. However, I think that the judicial safeguards, as so many of your Lordships have said today, are essential to protecting vulnerable people, which was one of the main concerns expressed at Second Reading. A judicial process will also bring home to the individual seeking assistance to end their life the gravity of the decision they are taking. A judicial process will also assist the doctor, as the noble Lord, Lord Ribeiro, pointed out. The noble Lord, Lord Tebbit, in his moving speech—

[Lord Mawhinney]

I am grateful to the noble Lord. I am one of those who was against the Bill, but I am being persuaded that there is a court role that might go a considerable way to being helpful to the outcome of this legislation. There were a number of suggestions that, rather than going to a vote in Committee, it would be helpful if the noble and learned Lord, Lord Falconer, with the noble Lords, Lord Pannick, Lord Carlile of Berriew, and others, sat down to see whether it would be possible to produce an amendment on Report which did not require all of us to be legal experts and have read paragraph 205, but which showed a degree of continuity and cohesion among those who have led the House to this position. Would the noble Lord be willing to put off a vote until Report so that such conversations could prior take place?

[Lord Pannick]

I am grateful to the noble Lord, but my position is exactly the same as that of the noble and learned Lord, Lord Falconer. The amendment is not legalistic. It says that the judge of the Family Division of the High Court should ask himself or herself whether the person concerned has made,

“a voluntary, clear, settled and informed”,

decision. They seem the right criteria. With respect to the noble Lord, Lord Carlile, I have not heard any convincing argument as to why the criteria should be more onerous—that the person concerned should be able to proceed along this route only if a further criterion is satisfied. Indeed, the addition of further criteria seems contrary to the valuable purposes of the Bill: to give effect to the autonomy of the individual.

[Lord Carlile of Berriew]

Does the noble Lord not think on reflection that Report stage on a Bill of this kind is an extremely important stage for your Lordships’ House? Does he not think that it would be far better for your Lordships to discuss and reflect so that when we come to Report we are able to make a considered decision in which even those of us who feel strongly about these issues will understand the essential need to be prepared to compromise, through a proper discussion reflective on the debate of the past two hours? In that context, I am certainly not going to vote on any of these amendments either way. I invite the noble Lord to reflect for one moment on what has just been said. I think that others may well agree.

[Lord Pannick]

Of course I reflect on what the noble Lord says, not least because I have great admiration and respect for him. However, he will know, as will as any other Member of this House, that we often vote on issues of principle in Committee. If there were an issue that could be resolved by further analysis and debate then I would see the force of the point.

[Lord Harries of Pentregarth]

There are some issues that need to be further clarified. The noble Lord, Lord Carlile, has a whole range of amendments going into more detail about what his proposal would actually mean in practice. The House has not had a chance to hear those amendments, which I think will go some way to addressing the point that the noble Lord made against the point that the hurdle was too high. I very much support those who urge that the noble Lord should get together with the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Falconer, to see whether there is some more common ground.

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[Lord Cormack]

What can possibly be lost by having further conversation and discussion? If the amendment is put to the vote and is carried, other amendments cannot then be discussed because a number of them will fall by the wayside. That is not going to assist our progress in having a full-ranging discussion. I would beg the noble Lord, Lord Pannick, not to press his amendment today so that discussions can take place. I make this suggestion, as I did in my speech, in a wholly constructive manner. I would beg of the noble Lord to heed that, because pre-empting other amendments is not the best way of taking this forward.

[Lord Pannick]

I am grateful to all noble Lords who have put to me pleas, begging—or however it is put—and I do take them very seriously indeed. However, it seems to me that after two hours we have had a very considerable debate on an issue of principle relating to the Bill. There is widespread agreement that there should be a judicial protection included in the Bill. As I understand it, only two real concerns have been expressed. The noble Lord, Lord Carlile, has suggested that the protections in my amendment are not sufficiently robust. With great respect, I do not accept that. The other objection raised is that it should not be judges of the Family Division who hear this. I think that this is so grave an issue that it is right and appropriate that the judicial protection is at that level. As the noble and learned Baroness, Lady Butler-Sloss, will confirm from her experience, there is nothing formal about the Family Division in appropriate cases. Judges hear the disputes around the bedside of the patient when necessary.

The noble Lord, Lord Tebbit, in his moving speech, was concerned about wrongdoing. I say that if the judge is satisfied on hearing evidence that the decision is,

“voluntary, clear, settled and informed”,

by a person who has capacity, then the noble Lord’s concerns about wrongdoing will be met. It is time that we came to decision on this matter of principle, encouraged as I am by what the noble and learned Lord, Lord Falconer of Thoroton, says. I willingly give way.

[Baroness Finlay of Llandaff (CB)]

I am grateful to the noble Lord, Lord Pannick, for giving way. We have had a wide-ranging discussion. I felt that we were at the point of getting people to come round a table to find a solution. Like others, I am concerned about this process, but I respectfully state that I do not believe that we have heard the full debate. Other amendments in the next group in the name of the noble Lord, Lord Carlile, will expand on what he has proposed, and they have not had a fair hearing. I fear that to vote now may force the House to amend the amendments of the noble Lord, Lord Pannick, at Report. If that is what he wants, I am concerned about that. The House’s debate to date has been balanced and careful. I do not understand what is to be gained by having a vote now, rather than going through the issues, because we agreed that a lot in the Bill needs to be debated and sorted out. I state clearly that I am not aware of any wrecking amendments; the debate has been extremely informed.

[Lord Pannick]

I am not suggesting for a moment that anyone has proposed wrecking amendments, but I certainly do not accept that the noble Lord, Lord Carlile, has not had a fair hearing. He made a speech of 15 minutes or so—most appropriately—in which he set out his case, and the House has heard the arguments for and against. I do not think that there is anything unfair or unbalanced about putting to the opinion of the House an issue of principle so that we can make progress. I wish to test the opinion of the House.

The Deputy Chairman of Committees decided on a show of voices that Amendment 1 was agreed.

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Moved by

[Lord Pannick]

4: Clause 1, page 1, line 4, leave out subsection (2) and insert—
“(2) Subsection (1) applies only if the High Court (Family Division), by order, confirms that it is satisfied that the person—
(a) has a voluntary, clear, settled and informed wish to end his or her own life;(b) has made a declaration to that effect in accordance with section 3; and(c) on the day the declaration is made—(i) is aged 18 or over; and(ii) has the capacity to make the decision to end his or her own life; and(iii) has been ordinarily resident in England and Wales for not less than one year.”