Assisted Dying Bill [HL]

Lord Phillips of Sudbury Excerpts

Friday 16th January 2015 Lords Chamber

Moved by

[Lord Phillips of Sudbury]

12A: Before Clause 2, insert the following new Clause—
“Legal aid
Legal aid shall be available in respect of the application for the consent of the High Court (Family Division) in accordance with regulations made by the Secretary of State exerciseable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.”

[Lord Phillips of Sudbury (LD)]

My Lords, this is in the nature of a probing amendment. On the first day in Committee your Lordships decided overwhelmingly that a person may only obtain an order subject to the consent of the High Court, Family Division. You do not need to be a lawyer—I am a very long-in-the-tooth lawyer—to know that applications to the High Court of any sort are apt to be expensive. In respect of what could be an extremely tense, complex and contested application under the Assisted Dying Act, as it will be, the issues to be dealt with by a judge could be both numerous and difficult of deliberation. It is not impossible that members of the family might wish to be heard on such an application. At all events, I put it to the Committee that we cannot legislate on this important measure knowing that access to its provisions will be confined to the better-off.

Most people, particularly those lacking in confidence and articulacy, will not be able to bring an application of this sort without legal assistance. If they want to intervene in the proceedings, similarly they will not be able to do so without legal assistance. That of course means expense—sadly, very considerable expense. I therefore tabled this amendment with a simple objective, which is to make the Bill democratic and fair—a Bill of equal access—and I hope that it will commend itself to the Committee. I am well aware that there may be defects in its phrasing—

[Lord Howarth of Newport (Lab)]

My Lords, before the noble Lord concludes, he has indicated his expectation that the level of cost will be pretty significant. Can he give us in very broad terms an assessment of what the range of probable or likely cost might be?

[Lord Phillips of Sudbury]

The short answer is no. Lawyers charge very different amounts. A city lawyer charging £500 or £700 an hour is rather different from a country lawyer charging £100 or £200. It will also depend, as I said, on the complexity, but one is talking of thousands, not hundreds, of pounds. That is about the best I can do on that. However, as I said, I hope that the principle will commend itself to the Committee and that necessary changes to the drafting of my amendment can be dealt with prior to the next stage. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I was rather taken aback by this being such a short debate. I very much welcome the noble Lord’s amendment. We discussed this matter at a little length on the first day of Committee. As he said, applications to the High Court in the circumstances of the Bill, if enacted, could, but not always necessarily, involve complex procedures. The noble Lord is not able to quantify the cost and that is entirely understandable. However, I recognise that for any Government there is then a problem in not knowing that potential cost.

On the first day in Committee, I thought that the Minister was reasonably sympathetic to the point. He referred to the LASPO Act, which has,

“an exceptional cases provision which deals with questions of the Human Rights Act and the convention requirements”.—[Official Report, 7/11/14; col. 1879.]

He said that that was as far as he could then go on the question of legal support. Without entering into any question of financial commitments, which will no doubt haunt both sides of the Committee, I just ask whether he can go a little further and become a little more sympathetic on this issue.

--- Later in debate ---

[Lord Phillips of Sudbury]

My Lords, I am grateful for the Minister’s helpful reply and for the intervention of the noble and learned Lord, Lord Falconer of Thoroton. I will consider this extremely carefully. I personally think that it would be appropriate and simplest if we were to have a provision in this Bill rather than having to set in train a completely new statutory instrument, with all the separate procedures that that would involve. I should be grateful if Members of the House, after reflecting on this short debate, would get in touch with me if they have a particular view on the options that are now presented to us. For the moment, I am happy to withdraw the amendment.

[Baroness Symons of Vernham Dean (Lab)]

The noble Lord mentioned that legal aid should also be available to members of the family and my noble and learned friend Lord Falconer made the same point. Would he take that view if members of the family were opposed to the wish of the person seeking assisted suicide? For example, if parents of a young person of 18 or 19 wanted to intervene, would his amendment cover the position of such parents?

[Lord Phillips of Sudbury]

I am grateful for that intervention. I think my answer is this. I speak with the experience in the early part of my career of having had a lot to do with family matters and of acting for a coroner. The sad fact is that applications under the Bill when it is enacted could be highly contested, especially in circumstances where a close relative believes that undue pressure is being brought on the person making the application and is convinced that the application needs proper airing before a judge. I know that doctors will give their opinions, but sometimes the facts are complicated. Members of the family will not be able to approach doctors to say, “For goodness’ sake, do you not know blah blah blah?”. One needs to make arrangements for legal aid in such cases. I am utterly convinced that it would be scandalous if we allowed this to go forward without making arrangements for people who cannot afford legal advice. I beg leave to withdraw the amendment.

Amendment 12A withdrawn.