Terminally Ill Adults (End of Life) Bill (Twenty-third sitting)
Sarah Sackman Excerpts(1 year, 7 months ago)
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Naz Shah
If I may, Ms McVey, I will speak to the issue of the judicial oversight of the panel and the whole of new clause 21. I would like to understand something, and perhaps the Minister or my hon. Friend the Member for Spen Valley could help me. We have been talking a lot about judicial oversight. My concern is that even if we had judicial oversight, there is no liability if something goes wrong. We would have had judicial oversight, but now we have panel oversight—non-judicial oversight—of the decision. Even then, what if somebody went down the assisted dying route and an issue was raised afterwards? What recourse would anybody—family members and so on—have to hold anybody liable if they did something wrong, including, potentially, the commissioner?
The Minister of State, Ministry of Justice (Sarah Sackman)
It is a pleasure to serve under your chairship, Ms McVey.
As my hon. Friend the Minister for Care and I have made clear throughout debate, the Government continue to remain neutral on the Bill and do not have a position on assisted dying. Once again, my remarks will focus on the legal and practical impacts of the amendments, with a view to assisting Committee members. I will first speak to amendments 371 to 373, 377, 378, 381, 388, 390 and 391, new clauses 14, 15, 17 and 21, and new schedules 1 and 2, all tabled by my hon. Friend the Member for Spen Valley.
In executing our duties to ensure that the legislation, if passed, is legally robust and workable, the Government have worked with my hon. Friend the Member for Spen Valley in relation to the amendments, which propose the voluntary assisted dying commission and the panels. They reflect my hon. Friend’s intent to replace the court approval process that is currently set out in the Bill. I confirm that this change was driven not by capacity concerns from within Government, but by the Bill promoter’s policy intent. Let me be clear: the High Court stage could be made to work, but if the Committee and Parliament elect for the commissioner and panel model, the state will work to deliver that.
New clause 14 and consequential amendment 391 would provide for the establishment of a voluntary assisted dying commissioner. In keeping with other appointments of this significance, the commissioner would be appointed by the Prime Minister, and the individual in post must hold or have held office—so it is not sitting judges, but could be a retired judge—as a judge of the Supreme Court, the Court of Appeal or the High Court.
New clause 14 sets out the central functions of the commissioner, which will be detailed further in new clauses 15 and 17 and new schedule 1. The commissioner would receive documents, including the reports from the co-ordinating doctor and declarations under the legislation, make appointments to the list of persons eligible to sit on assisted dying review panels, and refer cases to those panels, which would replace the role of the High Court in the original draft of the Bill. In addition, the commissioner would have the responsibility for monitoring the Bill’s operation and reporting annually to Parliament, which we will no doubt come to in clause 34. It is important to pause there, because that is one aspect in which the commissioner model is distinct from that of a court or tribunal. It will serve multiple functions, not least the monitoring of the Bill’s operation and reporting on that annually to Parliament.
New schedule 1 contains practical arrangements for the office of the voluntary assisted dying commissioner, as established in new clause 14. In practice, we anticipate that the commissioner’s office will be a non-departmental public body. The establishment of such an office to support the Government-appointed chair or commissioner is common practice for roles of this nature. One such model is the Investigatory Powers Commissioner, which is chaired by a person who is holding or who has held high judicial office. The schedule also introduces the role of a deputy commissioner, who, like the commissioner, must have been appointed by the Prime Minister and hold or have held office as a judge of the Supreme Court, the Court of Appeal or the High Court.
Both the commissioner and deputy commissioner would be appointed for terms of five years, with their remuneration set by the Secretary of State. The commissioner would have the ability to appoint their own staff, having obtained approval from the Secretary of State in regard to the number of staff, the remuneration and the terms, as well as providing an annual statement of accounts. In the ordinary way, such a public body would be subject to other statutory provisions, not least the Equality Act 2010.
New clause 15 would establish the mechanism for the referral by the voluntary assisted dying commissioner to an assisted dying review panel. When the commissioner receives a first declaration from the person seeking assistance, and reports from the co-ordinating and independent doctors as to their assessments of the person—including a statement by those doctors as to the person’s eligibility for assistance—they would be required to refer the case to a panel as soon as reasonably practical. In practice, the task of organising the work of each panel would fall to the commissioner’s office. The co-ordinating doctor would be required to inform the commissioner where a first or second declaration is cancelled. Where the commissioner is informed of the cancellation of the first declaration, they must not refer the case to a panel, or must inform the panel to disregard the application if already referred.
Amendments 371, 372, 373, 377, 378, 381, 388 and 390 are all consequential amendments on new clause 21, and together establish the mechanism for the consideration of cases by the assisted dying review panels in place of the High Court. Panels would be required to review each case and issue a certificate of eligibility where they are satisfied that all requirements set out in the Bill have been met.
Sarah Olney
I seek clarification. As drafted, in clause 12(1)(c), the High Court would give
“a declaration that the requirements of this Act have been met”,
but in new clause 21(6)(a), the panel is required to issue a certificate of eligibility, to which the Minister just referred. I seek the Minister’s guidance on whether it is the Government’s view that the High Court declaration has equal weight in law to the certificate of eligibility set out in new clause 21. I ask particularly because that certificate will be relied on for the purposes of suspending the Suicide Act 1961, under which a criminal offence would otherwise have been committed. The certificate of eligibility will need to be relied on to demonstrate that no criminal offence has been committed under that law. Is it the view of the Minister and the Government that a High Court direction, as originally required, can now be fully replaced by, and have equal weight with, a certificate of eligibility?
Sarah Sackman
As I understand it, everything has to be internally coherent in whatever the final draft of the Bill is. Within this structure, because in this case it is a panel that issues the certificate, it is its own sui generis certificate appropriate to this process. The declaration that was referred to in the earlier draft is one that the High Court would normally do. Given that this is on the face of the Bill, and will be in primary legislation, it would have legal force and would, if it were internally coherent with the rest of the legislation, have the legal effect of operating coherently with the criminal offences and, indeed, with the suspension of the Suicide Act, as the hon. Lady just asked. That is my understanding.
Sarah Olney
My original question was more about whether it has the same legal force as a High Court direction.
Sarah Sackman
My understanding is that it would, yes. If I am wrong about that, I will obviously come back to the Committee and correct it, but my understanding is that it would. They are two different things—one is called a certificate of eligibility and one is a High Court declaration—but in terms of how they operate within this legal scheme, my understanding is that they would have the same legal effect, and they are intended to.
Under new clause 21, the panel must hear from, and may question, the person seeking assistance and the co-ordinating doctor, or the independent doctor, or both. The panel may also hear, and may question, the person’s proxy if that is relevant, and any other person, including those appearing to have relevant knowledge or experience. This could include family members, or other individuals with an interest in the welfare of the person, as well as other experts. The new clause is explicit that the panel must not grant the certificate of eligibility if it is not satisfied that all the requirements have been met. Further consequential amendments introduce references to the certificate of eligibility throughout the Bill. Once the panel has made a decision, it will be required to notify the person seeking assistance, the co-ordinating doctor, the commissioner and any other person specified in the regulations.
As others have pointed out, the amendments tabled by my hon. Friend the Member for Spen Valley do not spell out every step of the process or the procedure that the panels would be expected to follow. That is left to secondary legislation, and it will be for the commission and the commissioner to produce their own guidance on how the panels and the panel procedure are intended to be governed and regulated. That is in line with the approach to legislation more broadly, with main objectives typically set out in primary legislation, and secondary policy issues and technical and administrative matters, dealt with through secondary legislation, regulations and guidance.
Sarah Sackman
I believe it is in there. Let me find the relevant provision so that I can refer my hon. Friend to it.
Sarah Sackman
It is a majority vote for the other decisions that a panel may make, but in respect of certification, the decision is unanimous. Paragraph 5(2) of new schedule 2 states:
“Decisions of a panel may be taken by a majority vote”.
Such decisions include whether to hear from an additional expert, or whether further investigation is required in respect of an aspect that the panel may be concerned about, such as coercion or capacity. While those decisions can be taken by a majority vote, in respect of certification and granting a certificate of eligibility, I refer my hon. Friend to paragraph 5(3), which states:
“The panel is to be treated as having decided to refuse to grant a certificate of eligibility if any member votes against a decision to grant such a certificate.”
That is a slightly mealy-mouthed way of saying that if any member of the panel resists the grant of the certificate, no certificate can be issued.
Danny Kruger
I just want to support the hon. Member for Bradford West. She is absolutely right. It is clearly intended that there should be a unanimous decision but, in fact, as the hon. Lady pointed out, if one of the members decides effectively to abstain, the procedure does go ahead. It is not that they all have to actively support the decision; only two of them have to do that. One of them could have their doubts and sit on their hands, and it would still go ahead.
Sarah Sackman
That might be something that other hon. Members wish to take away with them, whatever the policy intent may have been. In fairness, I do not think that the question of whether there is a requirement to give a positive indication of a decision either way is on the face of the Bill. However, I think that clearly the intention behind paragraph 5(3) of new schedule 2 is that there is unanimity in relation to the grant of an eligibility certificate.
Daniel Francis
I was once on a planning committee in which one member of the committee voted in favour and all the other members abstained, so the recommendation went through one to zero. Technically, given the way in which new schedule 2 reads to me, that could happen, because one member could vote in favour and two could abstain, and that would therefore be considered unanimous. Will the Minister comment on that?
Sarah Sackman
We are discussing how to construe the provision in paragraph 5 of new schedule 2. I should reiterate that, obviously, it is the promoter’s intent to have—hon. Members may call it what they will—the safeguard of unanimity behind that provision. If there is any feeling that the drafting does not fully reflect that intent, it can be tightened up. However, under of the Bill, there is clearly an intent to have unanimity in respect of the final decision about certification.
Kim Leadbeater
It absolutely is the policy intent that there should be a unanimous decision of the panel. If there is any lack of clarity, I am very happy to look into working with official draftspeople to tighten that up.
Sarah Sackman
I thank hon. Members for their interventions.
In respect of the standard that would be applied in order for the panel to be satisfied, in practice, as I was saying, the panel would establish a case on the balance of probability in those circumstances only on the basis of strong evidence. In other words, the more serious the issue to be determined, the closer the scrutiny and the stronger the evidence required.
Introducing a requirement for the panel to be satisfied beyond all reasonable doubt at this stage would create a difference to, or a divergence from, the standard applied by professionals earlier in the process, such as by the doctors in the first and second assessments, and—I think the hon. Member for Reigate acknowledged this in her speech—to ascertain whether, among other things, the person has capacity to make the decision to end their own life, whether they have a clear, settled and informed wish to do so, and that they have not been pressured or coerced. Such a requirement would create the problem of making the application of the Bill incoherent because, of course, if a civil standard has been applied earlier in the process, the higher, criminal bar could never be satisfied at the panel stage. The principal decision is what standard should be applied and, as I have said, the civil standard is used in other end-of-life decisions, but there is also a question of the internal coherence of the Bill.
Rebecca Paul
I thank the Minister for the very clear way in which she is explaining everything. I completely acknowledge what she has just said. As she rightly said, I alluded to the fact that I tried to make the change at an earlier stage, but was unsuccessful, and I am now trying to put it through here. Can the Minister comment on the meaning of “satisfied”? If we are not going to have “beyond reasonable doubt”, can she expand a little on the meaning of “satisfied” and whether she is comfortable that that is clear enough for these purposes?
Sarah Sackman
The answer is yes. I, on behalf of the Government, am satisfied that that would be commonly and well understood by those applying it, and any court construing it, that the standard to be applied is the civil standard. That would be understood by not just the commissioner in terms of laying down the rules for the panels, but the panels themselves. It is important to recall that as Lord Bingham, one of the most distinguished judges that this country has ever produced, once said,
“The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved”,
and there is no doubt, based on what Parliament has debated, about the utmost seriousness of these issues. To answer the hon. Member’s question, the answer is yes, I think it is clear. That is the Government’s position.
Amendment (b) to new clause 21 would give the panel discretion to refuse to grant a certificate of eligibility where the requirements stated in the Bill are met if it believes there are
“particular circumstances which make it inappropriate for the person”
to be provided with assistance. The Government’s view is that this could risk unpredictability and inconsistency in the panel’s decision making and reduce legal certainty for the person seeking assistance, as well as for the panel.
Amendment (c) to new clause 21 concerns three specific requirements under subsection (2):
“(c) that the person has capacity…(h) that the person has a clear, settled and informed wish to end their own life”
and
“(i) that the person made the first declaration voluntarily and was not coerced or pressured by any other person”.
The amendment would mean that despite finding that those criteria had been met on the balance of probabilities, the panel could stay proceedings when it believed there was a real risk that they have not been satisfied. As with amendment (b) to new clause 21, this could result in uncertainty for the applicant and in terms of what is required of the panel in its decision making.
As I referred to earlier, in a lot of these decisions, the question of whether somebody has capacity or is being coerced is ultimately a binary decision for each panel member. The person has capacity or they do not. In applying the civil standard with the rigour that Lord Bingham spoke about in the most serious cases in circumstances when the panel or its members identify that there is a real risk, one would expect them to exercise their discretionary powers to seek more evidence to remove that risk and doubt, and if that persists, to refuse and make the binary choice that the person does not have capacity or is being coerced, or vice versa.
Amendment (d) to new clause 21 would require the panel to hear from and question both assessing doctors, as opposed to the requirement that the person must hear from, and may question, one of the doctors, and may hear from and question both. The amendment would also require the panel to hear from and question the person seeking assistance and the person’s proxy when clause 15 applies. Under new clause 21, the panel must hear from and may question the person seeking assistance and would have the ability to hear from and question their proxy.
The amendment would also make it explicit that the panel must consider hearing from and questioning parties interested in the welfare of the person and those involved in the person’s care. Under new clause 21, the panel would have the ability to hear from any other person, which could include family members, caregivers and whomever else it deems appropriate.
Sarah Sackman
My hon. Friend is absolutely right. Under the Bill as drafted, a panel and the commission are not invested with powers of summons, and the evidence that is heard and requested is not conveyed under oath. It is not a court or a tribunal. Those provisions do not apply, so she is absolutely right. They can make the request, but they cannot compel someone to attend.
Amendment (e) to new clause 21 would make it explicit that, when considered appropriate for medical reasons, the panel would be able to use pre-recorded audio or video material when considering evidence for the purposes of determining a person’s eligibility for assistance. Panel procedure would be set out in guidance issued by the commissioner, which would detail the processes governing the panel process in general, but also for the use of that form of evidence.
New schedule 2, which was tabled by my hon. Friend the. Member for Spen Valley, builds on the new clause 21. The new schedule further details the composition and the intended proceedings of the assisted dying review panels. As we have heard, panels would be formed of three members, including a legal member sitting as chair, a psychiatrist and a social worker.
Thanks to the hon. Member for Richmond Park, we have dealt with the provision on decisions to grant the certificate of eligibility and how they will be determined by members of the panel. We heard from the promoter herself, my hon. Friend the Member for Spen Valley, that the intention is that such decisions are unanimous.
The commissioner would be responsible for making appointments to a list of persons eligible to sit as members of the multidisciplinary panels, and for establishing those panels. Under the schedule, the legal member as chair of the panel must hold or have held high judicial office, be one of His Majesty’s counsel—that is a KC—or have been authorised as a temporary judge in the High Court. The psychiatrist member must be a registered medical practitioner and a practising registered psychiatrist, and the social worker member must appear on the register maintained by Social Work England or Social Work Wales.
Sarah Sackman
I think the hon. Lady is right that that is not specified as a requirement. All three panel members would be drawn from the relevant professions and would therefore be subject to the standards pertaining to those professions. In the legal profession, they will be practitioners who are experienced in analysis and reaching decisions based on facts and law. The professional standards for all three regulated professions place a high value not just on integrity, but on impartiality. For the commissioner and for any judges on the panel, the “Guide to Judicial Conduct” makes the principles explicit.
Naz Shah
The Minister mentions impartiality. As things stand, the doctors who take part in the process will have made the choice to do so. Would the same yardstick be applied to the panel, or would its members just be appointed? Could they choose not to participate in the process?
Sarah Sackman
I anticipate that members of the professions will apply to be members of the panel. There will have to be a recruitment process, which is something that the commissioner, who is appointed by the Prime Minister, will undertake. I emphasise the point that all the professions, in their different ways—I am obviously most familiar with the legal profession, particularly the Bar—are governed by professional standards that specify the need for and place a high value on not just integrity, but impartiality.
Sarah Sackman
There is no doubt that, as we will see later, the panel would be subject in all its decisions to public law principles, including procedural propriety. The absence of any suggestion of bias—even of the appearance of bias—is an important public law principle. In any event, given the recruitment process, the interviews that would be undertaken and the professional standards to which all these people would be held, I think that they would apply their independent and impartial skills and judgment to the decision making and the assessment of eligibility in a manner appropriate to the task set out in the Bill.
One would expect professionals on the panel to adhere to their professional standards and act with impartiality in ascertaining whether the eligibility criteria have been met. Speaking as the Minister—indeed, even speaking for myself—I have no reason to doubt the independence, impartiality and professionalism of the panel or see any suggestion of bias.
Danny Kruger
I appreciate that an impact assessment is due to come later, after we have debated whether we should have this system or not. Nevertheless, will the Minister tell the Committee whether officials in her Department or in the Department of Health and Social Care have informed the hon. Member for Spen Valley whether the workforce will have sufficient capacity to provide the professionals required? Has any estimate been made of the number of people who will be required to step forward to take part in these panels?
I note the point that the reason why the proposed High Court stage was dropped was not that Ministry of Justice officials had informed the hon. Member for Spen Valley that the family court system would be overwhelmed. Can the Minister confirm that there was no communication to the hon. Member that the courts would not be able to cope with the demand? That was clearly reported in the media at the time, but can she confirm that it was not the case?
Sarah Sackman
The hon. Gentleman’s first point is a matter for the impact assessment itself. Clearly both Departments have data on the state of the professions, on how many KCs there are in the country and on how many people will be needed to provide the service. As I say, if Parliament wishes it and legislates for it, the state will work to deliver it, but the detail will come in the impact assessment.
On the hon. Gentleman’s second question, as I made clear earlier, the effective shift away from the High Court model in clause 12 to the model in the new clauses has been driven by the policy intent of my hon. Friend the Member for Spen Valley. I will not get into the precise chronology of when the matter was raised, but it came from my hon. Friend.
Yesterday, I hotfooted it from the Committee to Justice questions, where I was delighted to see the hon. Member for Reigate. We discussed capacity issues in our Crown courts and civil courts. Those issues are well reported in the media, but there is no connection between them and the policy shift here. If this is what Parliament chooses to legislate, the state will work to deliver it.
Kim Leadbeater
It is important to acknowledge that it will be a number of years before this law will be implemented. Hopefully, the Government will continue the fantastic job that they are doing to improve capacity in our courts, so that even if capacity is an issue now, a few years down the line it will not be.
Sarah Sackman
I thank my hon. Friend for that encouragement. The Government’s position throughout the entire process, in so far as we have worked with her on these amendments and others to give effect to her intent, is to ensure that they are workable and operable. If this were not workable, we would not be here discussing it.
There are several examples across Government of judges or senior lawyers and KCs sitting on decision-making panels or in organisations or bodies that sit outside the framework of His Majesty’s Courts and Tribunals Service. We have discussed some examples, such as public inquiries. I say this as the Minister for courts: it speaks to the trust and public confidence in both judges and KCs that when there is a public policy challenge to which many of us as politicians struggle to find a resolution, we so often turn to judge-led and KC-led inquiries to establish either what has happened or how systems can be improved. That is partly because of the impartiality and integrity that they bring to that work. I offer the example of the judicial commissioners who operate on behalf of the Investigatory Powers Commissioner and who provide independent authorisation of application for the use of the most intrusive investigatory powers.
We have mentioned inquiries; I have also mentioned Parole Board panels as an example of inquisitorial rather than adversarial panels. They are often multidisciplinary, and many of their members are current or retired judges. They sit and hear issues of the most complex nature, assessing the risk that prisoners may present to the public on release.
Danny Kruger
I appreciate the Minister’s point about the Parole Board. Does she acknowledge that in the Parole Board example there is the essence of an adversarial system, because the victim is invited to give a statement? The board therefore hears opinions from, as it were, both sides of the case. Who will fulfil that second role in the proposals before the Committee?
Sarah Sackman
I drew the comparison for the purpose of showing where judges and legal experts are deployed in a multidisciplinary forum that is not a court or tribunal. I was not suggesting that there is a straight-line analogy. After all, a Parole Board panel is performing a different function to make a global assessment of risk. That is what it is ultimately doing; it is not strictly speaking an adversarial process in that sense.
The situation that the Bill addresses is that of an individual seeking to establish their eligibility for a right that—if the Act is passed—Parliament will have conferred on those who meet the criteria. It is not an adjudication. It is the panel’s function to assess, through the various conversations and provisions and by interrogating the information that has been provided, whether it is properly satisfied that the eligibility of the person’s election to avail themselves of that right is sound.
Sarah Olney
I am trying to clarify this for my own benefit, because I am not familiar with some of these procedures. Is there a difference between a High Court judge leading an inquiry or sitting on a panel, using their legal experience to provide advice or recommendations or give an opinion, and having a judge sitting in the High Court, who, under the original wording of clause 12, would be giving a direction? If there is a difference, have we not crossed from one role to the other by introducing a panel rather than a High Court direction? Does that matter for the purposes of the legislation?
Sarah Sackman
To be absolutely clear, what we are discussing reflects the intent of my hon. Friend the Member for Spen Valley. It is important to break it down. We have a judge in the role of the commissioner, and the commissioner will set up the framework and guidance for how the panels will operate and will lend their expertise. Our judges often sit on the Civil Procedure Rule Committee, developing the appropriate practice to govern the process in question. In this case, it would be the process of providing the third layer and the assessment whether the eligibility criteria have been met.
The commissioner would also—and this is where the role is distinct from that of a court or tribunal—provide a monitoring and reporting function to Parliament on the operation of the Act. That is a fundamental distinction from the model that we will have if we pursue clause 12, because in that case each application for an assisted death would go to whichever High Court judge happened to be sitting on that day. There would be no requirement for particular expertise on the part of the High Court judge, and that judge would not have to report on the operation of the Act. It is a different model that my hon. Friend has elected.
Liz Saville Roberts
The situation exists already in Wales. For example, people are prepared to travel in order to facilitate Welsh-medium coroner inquests. There are local authorities such as my own, Gwynedd, that have a requirement that all social workers be able to work in the medium of Welsh. The requirement will already be there, but this is a process of acknowledging those psychiatrists who are able to meet it. It is critical for the Bill, if we are to put the person and their needs first.
I urge the Minister to consider the amendment. We are already familiar with this matter in relation to digital technology and the operations that we already need to put in place to allow people to use their language in Wales. The amendment recognises the dire situation. It recognises the absolute urgency of people who are at the most stressful time in their life being able to use the language that they prefer.
Sarah Sackman
I want to reassure the right hon. Lady about the provisions that will apply even if her amendment is not accepted. The Welsh Language Act 1993 requires public bodies that are either named in the Act or named by Welsh Ministers, and which provide services to the public in Wales, to prepare a Welsh language scheme setting out the steps that the body will take in relation to the use of the Welsh language while providing those services. As I understand it, this approach is used all the time in legal proceedings in Wales.
In an instance in which a party wishes to speak in Welsh at the proceedings, section 22 of the 1993 Act will apply. Any party to the legal proceedings can express themselves in Welsh, at which point a Welsh interpreter would be commissioned to facilitate the discussion. That will happen. That will be the status quo—the backstop, if you like—without the amendment. Requiring all members of the panel to speak fluent Welsh would, in the Government’s view, be a significant operational challenge that could lead to undue delay at the end of life.
Tom Gordon
I speak only one language and it is definitely not Welsh, even though I did have a stint working in Wales. With any language, things can be lost in translation. When we are talking about something like assisted dying, does the Minister acknowledge that even with very skilled interpreters, there would have to be a suitable level of training to make sure that everything was fully thought through and there were no cracks—that nothing would slip through the net. That is not covered under the Welsh Language Act currently, and that is why the amendment has been tabled. Does she appreciate the severity of that?
Sarah Sackman
]The right hon. Member for Dwyfor Meirionnydd and the hon. Members for Chesham and Amersham and for Harrogate and Knaresborough have all put their case incredibly powerfully. In emphasising the operational difficulties that the Government have identified, I will make this point. The approach under section 22 of the Welsh Language Act is that the ability to speak in Welsh and have interpretation services is adopted in very serious legal proceedings indeed. The hon. Gentleman is right: we are talking about nuances that can determine civil or criminal liability; those are very serious issues indeed. I am not saying that that is quite as serious as matters of life or death, but getting right the sorts of things that interpreters need to ensure they are getting right, as well as vindicating the person’s ability to express themselves in their mother tongue or their preferred tongue, is something that happens already and would happen under the operation of this legislation.
Liz Saville Roberts
I wonder whether the Minister appreciates that when it comes to Welsh speakers using their language in the face of the majority language, English, with its status, what we are doing here is putting another barrier in their way: “I am making a nuisance of myself; I have to ask a favour and get interpreters.” That is not what we should be doing with this legislation. We should be putting those people first and making sure that they can express themselves at this most emotional time as effectively as possible. Interpreters should not be in the room with the assisted dying panels. That is fundamentally against the nature of the Bill.
Sarah Sackman
I appreciate the passion and force with which the right hon. Lady makes that point. I have set out the Government’s concerns about deliverability—the operational challenges around delivering what has been suggested. This is a case of applying section 22 of the Welsh Language Act to the commissioner, who under the promoter’s new schedule 2 would be able to give guidance to panels on how exactly they should facilitate exactly what the right hon. Lady is seeking—the ability of the dying person who is seeking an assisted death to express themselves through the Welsh language within those most sensitive of proceedings. There could be facilitation by the commissioner in order to commission an interpreter and assist the person to speak in Welsh.
I appreciate that the right hon. Lady feels that that would create a barrier that is not appropriate to this context, but I think it is a reflection of the fact that certainly the Government are not seeking to stand in the way of people expressing themselves in Welsh. We want to vindicate that. It is in line with our wider commitment to devolution and to working with the devolved Governments in the context of the Bill. The right hon. Lady has made her point forcefully, and no doubt the Committee will come to vote on this amendment, but I have to, on behalf of the Government, acting responsibly, lay out some of the challenges that it would mean to the operability and deliverability of the Bill.
Sarah Green (Chesham and Amersham) (LD)
I accept that the Minister is in a difficult position, because she is presenting the case for the Government’s position and cannot take a position herself. I will just gently ask whether she accepts the weariness of Welsh language speakers and campaigners over generations, who have been faced time and again with the same argument—of operational challenges, whatever that issue may be. I suggest to her that perhaps it is time that the Government stopped using that excuse.
Sarah Sackman
I thank the hon. Lady for that intervention. She has heard the Government’s position on the operation of the Bill. As I said, it is important that, in the event that this amendment is not taken forward, the points and the force with which they are made are fed into the commissioner’s modus operandi in order, as far as possible and within what resources allow, to allow people to express themselves in the Welsh language. As I said, I want to put on record our continued commitment to devolution in that context, and to working with the Welsh Government to resolve in a thoughtful and constructive way any of the outstanding legal, technical and constitutional issues that may arise.
Liz Saville Roberts
Surely many of the constitutional issues that we are discussing should be decided by the Senedd and the Welsh Government. It is a matter of urgency now that we discuss the “appropriate authority”, which is a term used in other legislation. I believe that in the Crime and Policing Bill, “appropriate authority” is used in relation to England and Scotland. We need to have clarity on these decisions as we move ahead.
Sarah Sackman
The right hon. Lady is absolutely right that we do need clarity. As my hon. Friend the Member for Spen Valley has made clear, the intention is for the legislation to apply across both England and Wales, and the model being proposed under these provisions is a single commission. We need to ensure close working to resolve those technical and legal issues.
Amendment (b) to new schedule 2 deals with the issue of the Official Solicitor. It seeks to establish a process through which a person nominated by the Official Solicitor acts as an advocate to the panel. It is important to remind ourselves of the role that the Official Solicitor typically plays. They act as a litigation friend, and where they do act as an advocate to the court, the purpose of that function is to assist courts on a difficult or novel point of law. The focus of the Official Solicitor is in representing adults who lack mental capacity, and children. Both groups are plainly out of the scope of the Bill. The Bill applies to someone who has capacity and who is applying for an assisted death.
The amendment would require a significant and radical change in the function and focus of the Official Solicitor. Under new schedule 2, assisted dying review panels would have their own powers to determine whether the requirements of the Bill had been met, including the ability to hear from and question any other person.
Naz Shah
The Minister is being very generous in giving way. I want to understand something. She says that the Official Solicitor is there to help with adults who lack capacity, but in the cases before the Court of Protection of the girls who had anorexia, the judges took a decision that they should not continue to be force-fed. The judges concluded in nine of 10 cases that they lacked capacity, and yet accepted that these girls were inevitably going to die. In that case, would the role of the Official Solicitor not be helpful as a further safeguard?
Sarah Sackman
It is important to look at this issue in the context of what my hon. Friend the Member for Spen Valley is setting out to do through the legislation, and what the panel’s function is, which is the function that was discussed in the debate. This is not a trial or an inquiry. That is not what is being undertaken by the panel. The panel’s purpose is to ensure that the eligibility criteria process has been followed in a correct, lawful and safe way. As others have pointed out, it is not adversarial, and will not be described as such in the Bill.
All that I am saying on behalf of the Government is that the Official Solicitor’s role is most frequently to assist in court with a difficult or novel point of law when the person cannot do it themselves. Well, we do not have that here. We are not determining points of law; we are determining whether this person has met the eligibility criteria. Secondly, the Official Solicitor’s role is for when individuals lack capacity. In the Bill, by definition, the person who is applying has already satisfied two doctors that they have capacity. Of course, the question of capacity may be something that the panel wishes to explore further—it has the three panel members and the ability to draw on its powers to seek further information to test that—but it is not clear, without altering the current role that the Official Solicitor plays within our legal system, what role they would be serving.
Naz Shah
I appreciate the Minister’s position and am grateful for her explanation, but it does not address the central point, which is that nine girls were deemed not to have capacity. Despite all the amendments that have been tabled and the letter from all the charities about anorexia, that has not been addressed. In absence of any impact assessment on one of the issues that most frustrates me, how do the Government conclude that the workability of the Bill is sufficient? Will it work, given that we do not have the protection for those girls who may have anorexia? There is precedent for such girls who did not have capacity. How will the Government safeguard those girls in particular?
Sarah Sackman
I thank my hon. Friend for her intervention. She has brought up that case a number of times in various debates on the Bill. In this context, part of the provision—in terms of the design and operation of the commissioner and the panels to which the various cases are referred—is the development of guidance. If the commissioner deems specific processes appropriate to the consideration of applications for assisted death where anorexia is an issue, that guidance can be developed. Again, that is a matter for the promoter of the Bill, but one might have thought that having a dedicated body in relation to assisted death—which also has the monitoring function that we will come to in clause 34—means the development of expertise in dealing with cases, in particular those especially difficult cases of the nature my hon. Friend the Member for Bradford West raises. From a Government point of view, that would not necessarily flow—it is hard to see why it would at all—from the High Court, if we revert to that. That is a distinction between the two models that the Bill’s promoter has explored.
Kim Leadbeater
That is another important argument for having the panel. Where a terminally ill person with an eating disorder has been deemed to have capacity by two doctors and—I surmise, as we now have the compulsory referral—a psychiatrist, we will have on the panel another psychiatrist and a social worker. The panel does help to address concerns about capacity. Does the Minister agree?
Sarah Sackman
My hon. Friend has developed her thinking, and the Government have worked with her to reflect that policy intent. I think she is right that the panel is capable of doing just that and it could operate in that way.
Amendment (c) to new schedule 2 relates to the issue of domestic abuse training. It would make the voluntary assisted dying commissioner responsible for ensuring that all panel members had received training on domestic abuse, including coercive control and financial abuse. Persons appointed to the list of eligible panel members would already be qualified in the field of law, psychiatry or social work, and would have done all the training that pertains to receiving a professional qualification in those fields.
In addition, under new schedule 2 tabled by my hon. Friend the Member for Spen Valley, the commissioner would be able to give guidance to the panels, which could include training requirements, and the panels must have regard to that guidance in the exercise of their functions. That is all I propose to say about that. It might be seen as an example of something that would typically—I am not saying it has to—be left to regulation or the guidance, rather than being in primary legislation.
Amendment (d) to new schedule 2 relates to the panel sitting in private or in public. It seeks to ensure that panels sit in private by default.
Kit Malthouse
I am not sure that my amendment (d) was selected—unfortunately, I missed the deadline—so the Minister does not need to cover it.
The Chair
I did not wish to say that, but the Minister did. We will come back at 5.10 pm.
Oral Answers to Questions
Sarah Sackman Excerpts(1 year, 7 months ago)
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Liz Jarvis (Eastleigh) (LD)
The Minister of State, Ministry of Justice (Sarah Sackman)
The Government recognise just how important accessing transcripts can be for certain victims. That is why transcripts of sentencing remarks are available free of charge to the families of victims of fatal road offences, murder and manslaughter. It is also why this Government are running a one-year pilot that offers free sentencing remarks to victims of rape and sexual offences. That is due to conclude in May. We are also looking in the round at how we lower the cost of obtaining a court transcript through increased use of technology.
Liz Jarvis
The previous Government launched a pilot scheme to provide free sentencing remarks to victims of sexual violence. However, thousands of eligible survivors only found out about it months after it started. Poor communication meant that victims missed out on the opportunity for some closure. Will the Justice Secretary confirm whether the pilot has been properly evaluated, whether its findings will be made public, and what steps will be taken to improve awareness and accessibility for those who need to use the scheme?
Sarah Sackman
The hon. Member is absolutely right that initially there was not enough uptake. The Government acted to drum up awareness of the scheme precisely because we want to test its effectiveness for victims of rape and serious sexual offences. I reassure her that application numbers are up. We are conducting the evaluation, and once we have the results, we will be able to test whether we can implement the scheme in the future.
Richard Baker (Glenrothes and Mid Fife) (Lab)
Mr Lee Dillon (Newbury) (LD)
The Minister of State, Ministry of Justice (Sarah Sackman)
The last Government left a mess in every single corner of our justice system—our criminal courts and our civil courts. In the process, they let down not just victims of crime but businesses, employees, employers and children in care; every part of our system was left in a complete mess. That is what we are sorting out, with record Crown court sitting days—a commitment of 110,000 sitting days—and running almost to a maximum across all jurisdictions to bring down the backlog. We are sorting out the mess that we were left with.
Mr Dillon
I agree with the Minister’s assessment of the previous Conservative Government. However, with more than 382,000 cases still in the backlog for magistrates, have the Government done an assessment of whether that will increase, given the doubled sentencing powers that have been passed down to those courts?
Sarah Sackman
The magistrates court is being run in a sustainable way. We extended the sentencing powers in order to free up capacity in the Crown court, and that has been sustainable, and we are increasing capacity in our magistracy by recruiting an additional 2,000 magistrates from diverse backgrounds every year. But that is why we are looking at system reform, whether in the magistrates court or the Crown courts. We are going to need once-in-a-generation reform, and when Sir Brian Leveson reports back, that is what we will get.
Baggy Shanker (Derby South) (Lab/Co-op)
Shockingly, just 4% of rape and sexual offences reported to Derbyshire police in the last year resulted in a charge. When offenders are not prosecuted, victims understandably lose faith in our justice system. What steps has the Minister taken to reduce backlogs in Derbyshire courts so that justice can be served for these despicable crimes?
Sarah Sackman
I am sorry to hear how long victims in my hon. Friend’s constituency are waiting. That is why we are taking urgent action to bear down on the Crown court backlog, not only by increasing sitting days this year, but by committing to record numbers of sitting days next year. Of course that will not be sufficient to bring down the backlog and deliver swifter justice for victims, and that is why we need to hear from Sir Brian Leveson and implement reform in due course.
Mrs Sarah Russell (Congleton) (Lab)
Darren Paffey (Southampton Itchen) (Lab)
The Minister of State, Ministry of Justice (Sarah Sackman)
I am sorry to hear about that tragic case in my hon. Friend’s constituency. Encouraging or assisting suicide is an offence under the Suicide Act 1961, and sending communications that encourage or assist serious self-harm is an offence under the Online Safety Act 2023, but we are going to tighten up the law to address the situation that my hon. Friend has described. Of course, this is about not just the law, but the enforcement of the law as well.
Sarah Bool (South Northamptonshire) (Con)
Sarah Sackman
As the Lord Chancellor has said, our priority is delivering swifter justice for victims and bearing down on the Crown court backlog. That is why we have asked Sir Brian Leveson to consider all options, which have to include reclassification of offences and the intermediate court. We have to have a whole-system reform, but I fear that if we were to exclude those options, we would not be gripping the problem.
Paula Barker (Liverpool Wavertree) (Lab)
Mr Paul Foster (South Ribble) (Lab)
On several occasions I have met my constituent Beverley, whose son suffered a horrific murder. He was stabbed more than 140 times. She has been desperately attempting to get hold of the court transcripts, but to no avail. Will Ministers please meet me to help this still grieving mum?
Sarah Sackman
I am really horrified to hear of that case. Of course, as I mentioned earlier, the transcript of sentencing remarks should have been made available free of charge, but I am happy to meet my hon. Friend to discuss how transcripts of trials more broadly can be made available.
Siân Berry (Brighton Pavilion) (Green)
On Radio 4’s “Today” programme last week, Matthew Ryder KC, who sits as a judge, praised the extreme helpfulness of pre-sentencing reports for passing effective sentences. Will the Secretary of State do as he asks and endorse the importance, value and independence of the Sentencing Council?
Blake Stephenson (Mid Bedfordshire) (Con)
What are this Government doing to crack down on unqualified people representing themselves as solicitors?
Sarah Sackman
As the hon. Member well knows, the solicitors profession is highly regulated. We have the Solicitors Regulation Authority, which itself is regulated by the Legal Services Board. All our professionals, whether they are practising in criminal or civil law, are highly respected and highly regulated, and we are indebted to them.
Jonathan Hinder (Pendle and Clitheroe) (Lab)
I was shocked to read the Sentencing Council’s response to the Secretary of State last night, with its arrogant tone. As she has said, this Parliament is sovereign, and the fact is that we have given too much power away to these unelected bodies in recent years. Can I reassure her of my support, and can she reassure me that she will not rest until we retain equality before the law?
Ministry of Justice Contingency Fund Advance: 2024-25
Sarah Sackman Excerpts(1 year, 7 months ago)
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The Minister of State, Ministry of Justice (Sarah Sackman)
The Ministry of Justice requires an advance to discharge its commitments which are set out in its supplementary estimate 2024-25, published on 11 February 2025 as “HC 655 (Central Government Supply Estimates 2024-25, Supplementary Estimates)”.
This is a temporary cash advance due to the timing of Royal Assent for the Supply and Appropriation (Anticipation and Adjustments) Bill (“the Supply Bill”), and does not reflect an overspend.
Once the Supply Bill achieves Royal Assent the advance will be repaid in full.
Parliamentary approval for additional resources of £300,000,000 will be sought in a supplementary estimate for the Ministry of Justice. Pending that approval, urgent expenditure estimated at £300,000,000 will be met by repayable cash advances from the Contingencies Fund.
[HCWS491]
Terminally Ill Adults (End of Life) Bill (Tenth sitting)
Sarah Sackman ExcerptsWednesday 12th February 2025
(1 year, 8 months ago)
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Rebecca Paul
I absolutely agree that such clarity would be very useful. The hon. Member and I both want to ensure that undue influence is captured somewhere; I am less picky about where. As long as it gets covered somewhere in the Bill, that would be an improvement to the Bill, and I hope that everyone would really welcome that. I think everyone recognises the issue. I am not hearing that people are opposed to this; they recognise that there can be more subtle forms of coercion. If we can work together to find the best place for that to go in the Bill, I am very open to that.
The Minister of State, Ministry of Justice (Sarah Sackman)
It might help if I offer—with the usual caveat that of course the Government are neutral—the Government’s position with respect to what the hon. Lady has been discussing. It is important to point out that the terms “coercion” and “coercive behaviour” and “pressure” that are used on the face of the Bill appear in existing legislation without statutory definition. In other words, they are given their ordinary meaning and they operate effectively in that manner in the criminal law. The hon. Lady is absolutely right that clause 26, which we shall come to in due course, is a separate matter, but of course it will be important to review the Bill as a whole and to understand the interaction between the different provisions in clause 1, as we trace it through to the criminal offences.
It is the Government’s view that manipulative behaviour or undue influence—the terms that the hon. Lady is using—would come within the normal meaning as understood in case law by the judiciary of the terms “pressure” and “coercion”. In terms of the integrity of the statute book, there is a concern that by adding additional terms, we run the risk of creating confusion, because when it comes to the interpretation of those provisions, judges will be looking to understand and ascertain what Parliament meant by “undue influence” that was not currently covered by coercion. Given that those terms are commonly broadly interpreted, it is the Government’s view that the sorts of behaviours that the hon. Lady is describing—“undue influence”—would be covered by the terms used on the face of the Bill. For simplicity, given that our existing body of law interprets those provisions widely, and to ensure consistent application of the law in this context and other contexts where coercion arises, it is important from the Government’s point of view to retain the Bill’s current wording.
Terminally Ill Adults (End of Life) Bill (Eleventh sitting)
Sarah Sackman ExcerptsWednesday 12th February 2025
(1 year, 8 months ago)
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The Chair
Before I call Minister Sackman, I remind Members that “you” refers to me, not the person they are speaking to. Can we be very careful with the use of “you”?
The Minister of State, Ministry of Justice (Sarah Sackman)
I know that Members will be eager to engage, and have already engaged, in a robust discussion about the issue of safeguarding, and how best to protect and prevent individuals from being forced or coerced into seeking assistance to end their life. As my hon. Friend the Member for Aberafan Maesteg has said throughout the debate, I will not be offering a Government view on the merits of any proposed amendments tabled by Members. Instead, I will offer some observations on the legal and practical effects of the amendments, to assist Members in undertaking line-by-line scrutiny.
As a starting point, we have heard a series of concepts discussed in this debate, including manipulation, pressure, coercion, undue pressure and encouragement with coercive ends. There is a range of terms that some Members have used interchangeably, and fairly so. It is important to say that there is a consensus that all those things are unacceptable; the point, and the Government’s view, is that the current provision in clause 1(2)(b) would cover that behaviour with the currently used terminology “coerced or pressured”.
Amendments 23 to 33 set out to include consideration of whether a person has been unduly influenced, in addition to having been coerced or pressured by another person, in the determination of whether that person is accessing assisted dying voluntarily. As I have already indicated, the Government’s view is that the terms “coerced” and “pressured” would cover the term “unduly influenced” as it is understood. If the Bill is voted into law, the guidance and training for the healthcare professionals who would apply the tests would need to be developed to cover that sort of behaviour in this specific context.
Similarly, amendments 82 to 92 and new clause 5 seek to introduce an additional safeguarding requirement that a person has not been encouraged into undergoing the assisted dying process. It is important to contextualise the amendments, which would introduce this new safeguarding requirement into all the relevant clauses of the Bill where a doctor—or a court or panel, if that is what transpires—must already make an assessment as to whether the person has the relevant capacity, has a clear and settled wish, is making the declaration voluntarily and has not been coerced or pressured by any other person into making it.
I have listened to the debates about what encouragement may or may not mean in this context. As I understand it, new clause 5 states that the definition of encouragement is that which would constitute an offence under section 2 of the Suicide Act 1961. In reality, that Act does not specifically define encouragement in legislative terms, so there is a risk that the definition becomes somewhat circular. As I will come to in a moment, as with the terms “coercion” and “pressure”, the meaning given to “encouragement” by the courts, where it is not defined by Parliament, is its natural meaning.
I now turn to amendments 113 to 115 and 118 to 122. Let me deal first with amendments 113 to 115. As the Bill is currently drafted, registered practitioners who act as co-ordinating and independent doctors are required to establish that the person seeking assistance has not been coerced or pressured. People seeking assistance to end their own life are also required to confirm in the first and second declarations that they have not been coerced or pressured. The amendments seek to add an additional requirement to establish that the person seeking assistance to end their own life has not been manipulated by any other person into making the decision.
Naz Shah
Many of us on the Committee are first-timers. My understanding is that in a normal Government process we would have gone out to consultation. We are talking about coercion and undue influence, and undue influence in particular is not something that does not appear on the statute books in other legislation, as the Minister may recall I said earlier. We would normally go out and consult and speak to charities, particularly domestic violence charities.
As many Members have said throughout the last few days and this morning, we know that terminology changes. We did not previously have the vocabulary of coercion and the words that we have today. When was the last time, for any Bill—apart from in respect of Domestic Violence Act 2021 under the previous Government—that we actually went out to consult people? Given that there is no impact assessment, which we are so desperately missing and which is a huge chunk of this issue, I want to understand how we can be sure, and how the Government can come here and be absolutely sure, that this will work, given that this is a whole new concept.
This is not domestic violence, with which we have some familiarity. We had one Select Committee inquiry in 2015, and my understanding is that it did not produce anything conclusive either to support or not to support the concept of assisted dying. We have not had the debates to tease this out. Other Members may be much more familiar with these concepts, but will the Minister comment on that?
Sarah Sackman
To bring it back to the specific debate about the amendments, the terms “coercive” or “coerce” and “pressure” appear in the criminal law and have broad definitions. That is how they have been interpreted by the courts. Others have referred to section 76 of the Serious Crime Act 2015, which created an offence of controlling or coercive behaviour. In that context and the relevant Bill, Parliament chose not to make a specific legislative definition, but the way in which it has been interpreted, in accordance with its natural meaning, has vindicated the proposition that a broad meaning is given to those terms. For example, that offence could include coercive behaviour such as repeatedly putting somebody down, telling them they are worthless, seeking to control their daily routines or isolating them from friends and family to put pressure on them. As my hon. Friend says, we understand those sorts of behaviours in a much broader way in a changing society.
Sarah Sackman
I am going to make a little more progress; we will come back to that in a moment. It is really important that we have these concepts in other parts of criminal law and other parts of our legislation. I come back to the point that we run a risk, which runs counter to the intent that lies behind the amendments, if we add additional language into the Bill. I will develop that point and then take further interventions.
As we have seen, clause 1 includes the terms “pressured” and “coerced”. The ordinary meaning of the word “pressure” is the use of persuasion or intimidation to make someone do something. There are broad types of behaviour, many of which have been eloquently brought into this debate, that would come within that. The ordinary meaning of the word “coerce” is to persuade someone to do something against their best interests by using force or threats. That could be subtle or it could be very blatant, but the word “coerce” is understood in that way by our courts and in other areas of our legislation. One can readily see how an act of manipulation such as in the examples used earlier, or the exertion of undue influence—I think the term “unduly pressured” was used—would all fall within the terms “coerced” and “pressured”. That is the settled view of the Government.
There is a consensus that none of these things, including applying undue pressure, are desirable or acceptable in this or any other context, but there is a risk that adding terminology does not do what hon. Members intend, which is to create more safeguards. The risk is that by adding new words, those tasked with applying and interpreting legislation, if it comes to court, will assume there must be some specific reason for their inclusion. They will assume that the words must have some meaning distinct from the other words in the list—coercion and pressure—notwithstanding the fact that, on their natural meaning, the terms overlap and, in the Government’s view, are inclusive of those sorts of behaviours. That risks the effect of narrowing the interpretation of the words used rather than inviting our courts to give them their usual expansive meaning.
In turn, that risks casting doubt on the current interpretation of those words in existing statutes such as the Serious Crime Act, which created an offence for coercive and controlling behaviour, and limits any read-across on interpretations from previous decisions into the application that we are debating. In short, it may actually serve to limit, not to add, to the safeguards in the process. It may risk adding confusion and uncertainty where what is already provided for in clause 1, with the words “coercion” and “pressure”, are simple, readily understood, expansive definitions that would cover precisely the behaviours that I think the hon. Members who tabled the amendments are concerned about.
Danny Kruger
I think the Minister just suggested that if we were to amend the Bill, there would be some kind of unfortunate knock-on effect with other legislation, which would thereby be weakened. I hope the argument being made is not that we should leave this Bill weaker in order to protect other legislation. We need to get this right.
I have another suggestion, which I would be grateful if the Minister could elucidate a little more. The fact is that no official definitions of coercion or pressure that exist in statute either. The definition of coercion that she used—what case law has taught us coercion means—and the examples she gave of people essentially exerting coercive pressure on partners would, of course, be captured by the Bill currently but, as we have heard, there are circumstances that would not meet that threshold but that we all agree would be unacceptable. The only way to capture properly those examples of people being encouraged and unduly influenced into an assisted death is by making it clear that that is what doctors are required to look for.
I revert to the point I have made a number of times; I would be grateful for the Minister’s response to it. The Suicide Act, which the Bill amends, explicitly uses the term “encouragement” for what people should not be subject to, and pressure is a subset of encouragement. It is not the other way around. Encouragement is not captured in pressure; pressure is captured in encouragement. Why do we not acknowledge that encouragement is the correct catch-all term for all the sorts of undue influence we are trying to protect against?
Sarah Sackman
On the hon. Gentleman’s first point, there is no suggestion that we should somehow accept any weaker form of provision in this Bill to protect other parts of the law. Having said that, he would well expect me, as a Government Minister, to be concerned with the integrity of our statute book as a whole.
It is because the Government take a holistic view of how the criminal law and other areas of our law operate and define these concepts, and how they are read across the piece, that we make our contention in respect of these particular provisions, because the terms “coercion” and “pressure” are given their natural meaning and are expansive. In the Government’s settled view, they would be inclusive of the types of behaviour that are described in the amendments before us—namely manipulation, undue pressure and the sort of encouragement that I think, when he keeps coming back to it, the hon. Gentleman is referring to, which is not encouragement in a benign way as might exist between two perfectly supportive family members in a normal conversation, but the sort of encouragement that is intended to lead to coercive ends.
The hon. Gentleman says that pressure is a subset of encouragement; the Government’s view is that coercion and pressure would cover off the other behaviours that are described in the amendments. It is not necessary to include those additional concepts, because it risks sowing confusion that somehow they are not included in the concepts of coercion and pressure.
Naz Shah
I want to understand the Minister’s point about multiple words. We have the Digital Markets, Competition and Consumers Act 2024, referring to both coercion and pressure, and undue influence is also included. Those three terms are used in the same Act. Undue influence is also included in multiple additional statutes—over 10, including the Anatomy Act 1984, which is about people leaving their body to medicine for the purposes of tests and so on. Is the Minister saying that those are bad Acts, because they could confuse people? That is the test we are applying.
Sarah Sackman
I am certainly not saying that those are bad Acts, and I do not want anyone to quote me as saying that. We could in theory sit here and come up with a whole set of terms that would be descriptive of types of pressure and coercion. We have come up with a number of those, including “undue influence”, “manipulation” and “unduly pressured”. There are other types of behaviour that we might seek to describe. Indeed, if one refers to the Crown Prosecution Service’s guidance in respect of the offence in section 76 of the Serious Crime Act 2015, there are a whole load of descriptors of different types of behaviour. We could name and enumerate all those different types of behaviours, but, in the Government’s view, that is not the best way to create legislation that is workable.
It is the Government’s settled view that the words “coercion” and “pressure” cover off the types of behaviour that Members suggesting these amendments would wish to include. The risk is that such amendments create more confusion and shed more heat than light, if you like. Indeed, there is then the risk that the definition of coercion is narrower than it in fact is under our law as it is understood in our courts and in the body of common law and case law, which has been developed in construing those sorts of terms.
We are still on clause 1, and we have spoken a little about the interplay between clause 1 and later clauses, particularly clause 26, which engages the criminal offence as drafted in the Bill. I want to stress that while the procedural clauses 1, 7, 8 and 12 may use the same language as the criminal offences in clause 26, they are conceptually distinct, as others have noted. Although it is right that a court could be expected to construe legislation as a whole, case law in relation to one provision will not necessarily flow through directly to a later provision.
It may be helpful to illustrate that with the word “encouragement”, which has been raised. As we know, it is an offence to encourage or assist a person to commit suicide. As the hon. Member for Reigate pointed out earlier, it will continue to be so if the Bill is passed, outside of the specific exemption in the Bill. It is generally also an offence to encourage or assist a person to commit any other offence under the Serious Crime Act 2007. Specifically, it is an offence to do an act capable of encouraging or assisting suicide or another offence. The term “encouraged” is not defined in either statute. While it is true to say that section 2A(3) of the Suicide Act—which was added in 2009—clarified that doing an act that is capable of encouraging suicide includes a reference to a person doing so
“by threatening another person or otherwise putting pressure on another person”,
that was intended to be illustrative of the meaning of “encouraged” in that context; it does not serve as a general definition.
Within the Bill, it is important to keep in mind the difference between the procedural requirements—which is what we are discussing in this group—and the criminal offence requirements. Adding words to one provision because they are found in a criminal offence elsewhere risks, in the Government’s view, unintended consequences. Adding “encouragement” to the procedural clauses is perhaps an example of this.
Bereaved Parents: Birth Certificates
Sarah Sackman Excerpts(1 year, 8 months ago)
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The Minister of State, Ministry of Justice (Sarah Sackman)
I thank the hon. Member for South Devon (Caroline Voaden) for securing this debate on an important and emotive subject. I start by saying how sorry I am for the loss that she and her family suffered, and how much I admire her resilience in coming to this House to share her story. That takes a huge amount of courage.
The circumstances in which the hon. Lady and others have lost co-parents are heartbreaking indeed. The Government are determined to ensure that the justice system is better able to support children and families, and particularly mothers who have lost the father of their child.
The hon. Lady helpfully outlined the current process for registering a parent’s name on a birth certificate when that parent has passed away, but it is important to set out precisely how this works. Under section 55A of the Family Law Act 1986, in situations where a child is born to unmarried parents and the father is deceased prior to birth, a declaration of parentage must be issued by the court for paternity to be established. It is right that a fee is attached to this application, but it is important to say that there are mechanisms in place to support those who cannot afford the fee.
The help with fees scheme considers a range of factors, including an applicant’s income, their savings and whether they receive any benefits, so that the fee can be waived in certain circumstances. Once a declaration is issued, the birth can then be re-registered to include the father’s details or, to put it another way and as we have heard, to fill in that blank space.
To recognise the challenges that mothers face when seeking a declaration of parentage, a key intention of the provisions in family proceedings is to make the process as simple as possible in the most difficult of circumstances, while at the same time ensuring that the court has the means to establish parentage if one parent is deceased and is not, of course, able to convey their views themselves.
That process, while we have to emphasise simplicity and ease for those going through the toughest of circumstances, is an important one. It is important because in some cases the process can bear on significant financial implications for others, such as children from previous relationships, and can bear on issues such as nationality and others that touch on the best interests of the child. While ensuring the process is clear and simple to support bereaved parents, the courts must therefore have a process that instils confidence in the important details that a birth certificate contains.
Jen Craft (Thurrock) (Lab)
I want to add my congratulations to the hon. Member for South Devon (Caroline Voaden) on securing this incredibly important debate.
The Minister has spoken well on the process involved. If a couple are married when the father dies while the woman is pregnant, it is a relatively simple process to register that person as the father of the child. It is a much more complicated matter for people where the couple are not married. I suggest, and I hope my hon. Friend agrees, that legislation might not have kept pace with societal change and with the reality of how couples now choose to live when they plan families.
Sarah Sackman
My hon. Friend is right to reflect on the growing number of couples in this country who cohabit and for whom marriage is not something they have chosen. It is right, too, that in general the law keeps up, to reflect that sort of societal change. I will come in due course to discuss more widely what the Government are doing in that space. I return, however, to the essential point that while clarity, simplicity and affordability are important in the registration process, particularly to support bereaved parents, we must have a process that instils confidence in what the birth certificate contains.
I thank the hon. Member for South Devon for drawing attention to Widowed and Young’s campaign. As she rightly points out, it does some absolutely amazing work, particularly for those younger people who have tragically lost a spouse or life partner. I can reassure the hon. Member now that the Government take the matter incredibly seriously and we are working hard to improve the family justice system for children and families.
Widowed and Young advocates for a simplified court process. We know that delays in the court process add to the distress when someone is going through bereavement. That can have a significant impact on children and families. We are committed to improving timeliness and reducing the outstanding caseload in the family court. That is why we have set ambitious targets for reducing delays in 2024-25 and have focused on closing the longest-running cases, not least so that can free up court time to deal with precisely the sorts of processes to which the hon. Member draws attention.
To further support those who use the family court, we are committed to improving digital solutions to support families with exploring various options for resolving child arrangement disputes early and away from court whenever possible. That is an area where digital solutions can be brought to bear on the sorts of issues that have been raised today. The Ministry of Justice is working on testing and developing various digital innovations that aim to support users in the private family justice system to help those families find the right information at the right time for them to reach agreements where that is appropriate, and particularly in the sorts of processes and proceedings under focus, which in the vast majority of cases are entirely non-contentious.
Let me turn to the wider issue of cohabitation reform. The subject that the hon. Member for South Devon raises and that others have raised today speak to the broader issues for cohabiting couples in our society who, under existing law, have only limited financial protections compared with those who are married or in a civil partnership. I know that a number of colleagues across the House have written to my Department about this, and my noble friend Lord Ponsonby was pleased to attend a parliamentary roundtable to discuss it last November.
We know that the limited rights and protections available to cohabitants can affect the most vulnerable in our society who are often affected at the most difficult stages in life, such as when a partner dies, or at the point of separation. We know, too, that those limited rights and protections disproportionately affect women, including victims of domestic and economic abuse, as well as their children. With the number of cohabiting couples in the UK having more than doubled over the past 30 years, it is important, as others have said, that law reflects the society in which we now live. That indeed is why the Government set out in our manifesto a commitment to strengthen the rights and protections available to women in cohabiting couples. We will be setting out the next steps on this manifesto commitment—how we intend to implement it—as soon as possible.
The issue raised by the hon. Member for South Devon speaks directly to those challenges that sometimes face parents who are unmarried. I would like to thank her once again for securing this important debate and pay tribute to her bravery in coming forward to talk about it. I hope that this is the start of a conversation. I hope that she and I can discuss in more depth very soon the sorts of changes that might be necessary to better protect people in law, and I look forward to working with her to that end.
While I am on my feet, let me also pay tribute to my hon. Friend the Member for Birmingham Northfield (Laurence Turner) for the related issue that he raises and let me extend my personal condolences to the family involved. They have been through one of the worst things imaginable in my view. Certainly, processes of administration—of registration—should not be designed to exacerbate that. If he will write to me with that particular case, I would be happy to take a look at it, and I look forward to working with him on how we can address and mitigate the distress of parents of children who die in childbirth.
Once again, let me thank the hon. Member for South Devon for securing this important debate. I look forward to working with her on how we can ameliorate the situation for those for whom she is campaigning.
Question put and agreed to.
Terminally Ill Adults (End of Life) Bill (Seventh sitting)
Sarah Sackman ExcerptsThursday 30th January 2025
(1 year, 8 months ago)
Public Bill CommitteesRead Full debate Terminally Ill Adults (End of Life) Bill 2024-26 View all Terminally Ill Adults (End of Life) Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 30 January 2025 - (30 Jan 2025)
Sarah Green
Q
Professor Lewis: A motion was put forward by Julie Morgan that was supported by three or four Members of the Senedd, which was broadly in support not of this specific Bill, but of the purpose of this Bill, and it was defeated, as you say, after a full debate on the Floor of the Senedd. Formally, legally and constitutionally, that is of no consequence, because it was not a legislative consent motion, and of course, as I said earlier, this Parliament is able to do what it likes. It could totally disregard that. Whether that would be a prudent or an appropriate thing to do, or even what one might describe as a constitutionally appropriate thing to do, is another matter.
I think it reinforces the point that there is a significance in making sure that scrutiny of the Bill has a Welsh focus. You might consider, for example, making different provision in Wales. How do you respect what was a democratic vote in the Senedd in Cardiff? Well, you might consider having different commencement provisions—I am not advocating this, it is just an example of what you might do. Commencement of the Bill in Wales might happen in a different way, on the assumption it was passed. You might put that in the hands of Welsh Ministers and the Senedd, just as an example.
The Minister of State, Ministry of Justice (Sarah Sackman)
Q
You have highlighted in particular the distinctions between health law, which is a devolved matter, and the law on suicide, which currently is not devolved. On the first page of your written evidence, you draw out clauses 32, 31, 33 and 34 in particular as issues that we should focus on in ironing out those legalities. Is there anything else you want to add to that that you think that we as a Government should focus on in our work consulting with the Senedd?
Professor Lewis: I think it is important that both Governments understand how the implementation of what will be a pretty radical change in the law will happen on the ground within the health service and among those who are responsible for delivering social services. I am thinking of issues such as adult safeguarding, which in Wales has its own specific law and is slightly different from the arrangements in England. There are those kinds of nuances between the two territories, and I think it would be prudent to focus on them.
I also think it is wise to bear in mind that Wales has certain statutory bodies whose interests might extend to the Bill. For example, there is the Older People’s Commissioner for Wales, in particular; there is the Future Generations Commissioner for Wales as well. I think it is important that there is some forum, some scope, for those people also to be involved in how this is shaped.
Sarah Olney
Q
“is not sufficient for the purposes of this Bill.”
Could you expand a little on that and, if you feel able, make some recommendations as to what you think could be sufficient?
Dr Price: Thank you. In answering this, I will also refer back to Professor Gareth Owen’s oral submission, thinking about the purpose that the Mental Capacity Act was drawn up for and the fact that decisions about the ending of life were not one of the originally designed functions of it. We would need to think carefully about how that would then translate into a decision that was specifically about the capacity to end one’s life.
We also need to think about how that would work in practice. When we are thinking about capacity assessments, it is usually related to a treatment or a choice about a treatment or about somebody’s life—for example, changing residence. Psychiatrists and doctors and actually lots of professionals are very used to those sorts of decisions and have gathered a lot of knowledge, expertise and experience around it. This particular decision is something that in this country we do not have knowledge, expertise and experience in, and we therefore need to think about how that would look in practice.
As for advice to the Committee about what that might look like, I think that we need to gather what evidence we have—it is actually very thin—from other jurisdictions that think about capacity as part of this process. I am thinking about my PhD: I visited Oregon and talked to practitioners who were directly involved in these sorts of assessments. They described the process, but they are not using the Mental Capacity Act as their framework. They described a very interpersonal process, which relied on a relationship with the patient, and the better a patient was known, the more a gut feeling-type assessment was used. We need to think here about whether that would be a sufficient conversation to have.
One of the things that I have thought quite a lot about is how we can really understand the workings of a mental capacity assessment, and one of the best ways we can do that is to see who is not permitted to access assisted suicide because of a lack of capacity and what that assessment showed. We do not have data because the assessments for people who were not permitted to do it are not published; we cannot read them, so if this becomes legislation, one of the suggestions that I would have—it is supported by the Royal College of Psychiatrists—is to, with patients’ consent, record capacity assessments to see whether they meet the standard that is necessary. I think it is important to set out the standard necessary and the components needed to be confident about a mental capacity assessment. That will help with standards, but will also help with training, because this is new territory for psychiatry, for medicine, and to be able to think about consistency and reliability, training needs to actually see a transparency in capacity assessments.
Daniel Francis
On a point of order, Mrs Harris. Yesterday, we heard evidence about the impact of the Bill on different groups with protected characteristics, including age, disability, race and sexual orientation. We heard from the EHRC, an arm’s length body of the Government, that it strongly recommends that a full impact assessment, a human rights assessment and a delegated powers memorandum be undertaken before the Committee begins line-by-line scrutiny.
We have also heard from witnesses about the impact that the Bill will have on disabled people, from Disability Rights UK and others, on black and minority ethnic people, from Dr Jamilla Hussain, from LGBT people, from Baroness Falkner, and on those from a low-income background, from Sam Royston of Marie Curie. We heard from Dr Sarah Cox and Dr Jamilla Hussain that evidence from their work shows that this Bill has a higher probability of pushing minority groups further away from seeking healthcare, while inequality pre-exists. As observed through the pandemic and from available data, minority groups do not always trust that their interests will be best represented in institutions that would enable the facilitation of someone’s death, should this Bill become law.
I therefore believe that on the basis of that advice, so as not to inadvertently widen health inequalities through Bill, it is essential to have health impact assessments. I appreciate that an equality impact assessment will be produced for Report stage, it will not be available for detailed line-by-line scrutiny. When we agreed the timetable for line-by-line scrutiny last Tuesday, we were not aware that this assessment would be produced, given it was first reported to the House during the money resolution last Wednesday. There is a risk that there will be a bigger impact on people with protected characteristics, and this will not be understood fully until the Government have produced the equality impact assessment. As things stand, that means that we will move into line-by-line scrutiny of the Bill on 11 February without a full understanding from the assessment of the impact of the Bill.
I am therefore minded to request a short Adjournment of the Committee so that, as advised, we can receive the assessments before we progress to line-by-line scrutiny. Please will you advise me, Mrs Harris, how I could secure such a motion to adjourn the Committee until we are in receipt of the evidence, as advised by the witnesses yesterday?
Sarah Sackman
Further to that point of order, Mrs Harris. I want to clarify the Government’s position. As the Committee knows, the Government are neutral on the Bill, but once the Committee has concluded its work and prior to Report, we are committed to publishing the ECHR memorandum, a delegated powers memorandum, the economic impact assessment that was committed to during the money resolution debate, and an assessment of the equalities impact of the Bill. In terms of the timing, it is necessary that the impacts that are assessed be of the Bill as it is brought forward. If the Bill is liable to change via amendments proposed by members of this Committee, it is important that we know what it is that we are assessing the impact of. That is why the proposed timing is to publish the impact assessment at that stage. The point is that before Members of the House come to a vote on Report and Third Reading, they will all have before them the impact assessment in respect of equalities and all those other aspects of the Bill.
Terminally Ill Adults (End of Life) Bill (Seventh sitting)
Sarah Sackman Excerpts(1 year, 8 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Sarah Green
Q
Professor Lewis: A motion was put forward by Julie Morgan that was supported by three or four Members of the Senedd, which was broadly in support not of this specific Bill, but of the purpose of this Bill, and it was defeated, as you say, after a full debate on the Floor of the Senedd. Formally, legally and constitutionally, that is of no consequence, because it was not a legislative consent motion, and of course, as I said earlier, this Parliament is able to do what it likes. It could totally disregard that. Whether that would be a prudent or an appropriate thing to do, or even what one might describe as a constitutionally appropriate thing to do, is another matter.
I think it reinforces the point that there is a significance in making sure that scrutiny of the Bill has a Welsh focus. You might consider, for example, making different provision in Wales. How do you respect what was a democratic vote in the Senedd in Cardiff? Well, you might consider having different commencement provisions—I am not advocating this, it is just an example of what you might do. Commencement of the Bill in Wales might happen in a different way, on the assumption it was passed. You might put that in the hands of Welsh Ministers and the Senedd, just as an example.
The Minister of State, Ministry of Justice (Sarah Sackman)
Q
You have highlighted in particular the distinctions between health law, which is a devolved matter, and the law on suicide, which currently is not devolved. On the first page of your written evidence, you draw out clauses 32, 31, 33 and 34 in particular as issues that we should focus on in ironing out those legalities. Is there anything else you want to add to that that you think that we as a Government should focus on in our work consulting with the Senedd?
Professor Lewis: I think it is important that both Governments understand how the implementation of what will be a pretty radical change in the law will happen on the ground within the health service and among those who are responsible for delivering social services. I am thinking of issues such as adult safeguarding, which in Wales has its own specific law and is slightly different from the arrangements in England. There are those kinds of nuances between the two territories, and I think it would be prudent to focus on them.
I also think it is wise to bear in mind that Wales has certain statutory bodies whose interests might extend to the Bill. For example, there is the Older People’s Commissioner for Wales, in particular; there is the Future Generations Commissioner for Wales as well. I think it is important that there is some forum, some scope, for those people also to be involved in how this is shaped.
Sarah Olney
Q
“is not sufficient for the purposes of this Bill.”
Could you expand a little on that and, if you feel able, make some recommendations as to what you think could be sufficient?
Dr Price: Thank you. In answering this, I will also refer back to Professor Gareth Owen’s oral submission, thinking about the purpose that the Mental Capacity Act was drawn up for and the fact that decisions about the ending of life were not one of the originally designed functions of it. We would need to think carefully about how that would then translate into a decision that was specifically about the capacity to end one’s life.
We also need to think about how that would work in practice. When we are thinking about capacity assessments, it is usually related to a treatment or a choice about a treatment or about somebody’s life—for example, changing residence. Psychiatrists and doctors and actually lots of professionals are very used to those sorts of decisions and have gathered a lot of knowledge, expertise and experience around it. This particular decision is something that in this country we do not have knowledge, expertise and experience in, and we therefore need to think about how that would look in practice.
As for advice to the Committee about what that might look like, I think that we need to gather what evidence we have—it is actually very thin—from other jurisdictions that think about capacity as part of this process. I am thinking about my PhD: I visited Oregon and talked to practitioners who were directly involved in these sorts of assessments. They described the process, but they are not using the Mental Capacity Act as their framework. They described a very interpersonal process, which relied on a relationship with the patient, and the better a patient was known, the more a gut feeling-type assessment was used. We need to think here about whether that would be a sufficient conversation to have.
One of the things that I have thought quite a lot about is how we can really understand the workings of a mental capacity assessment, and one of the best ways we can do that is to see who is not permitted to access assisted suicide because of a lack of capacity and what that assessment showed. We do not have data because the assessments for people who were not permitted to do it are not published; we cannot read them, so if this becomes legislation, one of the suggestions that I would have—it is supported by the Royal College of Psychiatrists—is to, with patients’ consent, record capacity assessments to see whether they meet the standard that is necessary. I think it is important to set out the standard necessary and the components needed to be confident about a mental capacity assessment. That will help with standards, but will also help with training, because this is new territory for psychiatry, for medicine, and to be able to think about consistency and reliability, training needs to actually see a transparency in capacity assessments.
Daniel Francis
On a point of order, Mrs Harris. Yesterday, we heard evidence about the impact of the Bill on different groups with protected characteristics, including age, disability, race and sexual orientation. We heard from the EHRC, an arm’s length body of the Government, that it strongly recommends that a full impact assessment, a human rights assessment and a delegated powers memorandum be undertaken before the Committee begins line-by-line scrutiny.
We have also heard from witnesses about the impact that the Bill will have on disabled people, from Disability Rights UK and others, on black and minority ethnic people, from Dr Jamilla Hussain, from LGBT people, from Baroness Falkner, and on those from a low-income background, from Sam Royston of Marie Curie. We heard from Dr Sarah Cox and Dr Jamilla Hussain that evidence from their work shows that this Bill has a higher probability of pushing minority groups further away from seeking healthcare, while inequality pre-exists. As observed through the pandemic and from available data, minority groups do not always trust that their interests will be best represented in institutions that would enable the facilitation of someone’s death, should this Bill become law.
I therefore believe that on the basis of that advice, so as not to inadvertently widen health inequalities through Bill, it is essential to have health impact assessments. I appreciate that an equality impact assessment will be produced for Report stage, it will not be available for detailed line-by-line scrutiny. When we agreed the timetable for line-by-line scrutiny last Tuesday, we were not aware that this assessment would be produced, given it was first reported to the House during the money resolution last Wednesday. There is a risk that there will be a bigger impact on people with protected characteristics, and this will not be understood fully until the Government have produced the equality impact assessment. As things stand, that means that we will move into line-by-line scrutiny of the Bill on 11 February without a full understanding from the assessment of the impact of the Bill.
I am therefore minded to request a short Adjournment of the Committee so that, as advised, we can receive the assessments before we progress to line-by-line scrutiny. Please will you advise me, Mrs Harris, how I could secure such a motion to adjourn the Committee until we are in receipt of the evidence, as advised by the witnesses yesterday?
Sarah Sackman
Further to that point of order, Mrs Harris. I want to clarify the Government’s position. As the Committee knows, the Government are neutral on the Bill, but once the Committee has concluded its work and prior to Report, we are committed to publishing the ECHR memorandum, a delegated powers memorandum, the economic impact assessment that was committed to during the money resolution debate, and an assessment of the equalities impact of the Bill. In terms of the timing, it is necessary that the impacts that are assessed be of the Bill as it is brought forward. If the Bill is liable to change via amendments proposed by members of this Committee, it is important that we know what it is that we are assessing the impact of. That is why the proposed timing is to publish the impact assessment at that stage. The point is that before Members of the House come to a vote on Report and Third Reading, they will all have before them the impact assessment in respect of equalities and all those other aspects of the Bill.
Terminally Ill Adults (End of Life) Bill (Fifth sitting)
Sarah Sackman ExcerptsWednesday 29th January 2025
(1 year, 8 months ago)
Public Bill CommitteesRead Full debate Terminally Ill Adults (End of Life) Bill 2024-26 View all Terminally Ill Adults (End of Life) Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 29 January 2025 - (29 Jan 2025)
Kit Malthouse
Q
Lord Sumption: I am aware of them. Basically, they fall into two categories. There are those, like Spain, that have a process whereby a tribunal deals with the matter in advance—and, in fact, in the case of Spain in arrears as well—and there are those like the Netherlands, where it is a retrospective process. I have heard it said that a retrospective process is of no use. I am not sure I agree with that. I think there is a case for having a retrospective process to ensure that the practitioners are doing what they are supposed to be doing and that any objectionable tendencies are stamped out at an early stage.
It seems to me that if you are going to have the opinion of two doctors, which is almost universal as a requirement in these cases, I do not think that it is necessary to have a third layer, and in some respects it is undesirable. I appreciate that the House must have concluded that it was in favour of it, but my own view is that I am not.
The Minister of State, Ministry of Justice (Sarah Sackman)
Q
Lord Sumption: That is really the critical question when you ask yourself how useful this process is. Obviously, they will have the opinions of the two referee doctors—they will have their rather pro forma statements, and possibly statements they will make by way of expansion of those—but if they are going to add something of value in the way of safeguards, it seems to me that they have got to carry out an independent investigation of those same matters. That would involve getting, presumably, a third expert adviser and proactively seeking evidence about, for example, the patient’s state of mind. It seems to me that that is duplicative.
Obviously, there is no system that you cannot have a greater degree of assurance about, but I am struck by the fact that no other jurisdiction has felt it necessary to have a process as elaborate as this for the purpose of duplicating the expert views already required.
Sarah Sackman
Q
Dr Graham: My only contribution here can be that similar offences in other jurisdictions have been held to be perfectly compatible with European human rights law.
Lord Sumption: I have no problem about the criminal-isation of people who abuse or distort the system, which is what those two clauses envisage.
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
Q
Dr Graham: There are two main challenges to this legislation, and to legislation like it, in relation to the European convention. As you say, one relates to article 2 and one relates to article 14. The article 2 challenge can be dismissed fairly quickly, because we have authority from the European Court saying that
“the right to life enshrined under Article 2 could not be interpreted as per se prohibiting the conditional decriminalisation of euthanasia.”
As a matter of precedent, that is fairly clear.
The trickier argument comes with article 14, which is the anti-discrimination right. There is an argument that goes something like this—I hope that those who hold this view think I am giving it a good airing. By allowing some groups to access assisted suicide, but not other groups—in this Bill, allowing terminally ill adults who meet the criteria in the Bill but not non-terminally ill adults who do not meet those criteria—you are treating two different groups in different ways, and that is discriminatory. There is an argument that, because of that, the courts would find that the Bill is unlawful and needs to be expanded—that groups outside of the terminally ill that meet the criteria of the Bill need to be given access to assisted suicide. I think that argument does not work for a few reasons, chief among which is that in our jurisdiction treating different groups differently is not unlawful. Treating different groups differently without good justification is unlawful.
The question of justification, while it is for judges and the courts, is a question on which judges have deferred heavily to Parliament, especially in areas that involve difficult social, ethical or moral issues. If I may be forgiven for reading from a court’s judgment one more time, in the case of SC the Supreme Court said:
“The ordinary approach…gives appropriate weight to…the primary decision-maker”—
the primary decision maker being Parliament—
“a degree of weight which will normally be substantial in…matters raising sensitive moral or ethical issues.”
We can all agree that this Bill involves sensitive moral or ethical issues.
My point is that when it comes to justification, courts are very deferential to Parliament. Courts think that Parliament should be deciding whether treating two groups in different ways is justified or not. That is why, in my view, there is no real truck to the argument that article 14—the anti-discrimination right—will be operative and cause the Bill to be declared incompatible with the convention in any way. I hope that is an adequate summary of my view.
The Minister for Care (Stephen Kinnock)
Q
I will also add as a point of clarification that both myself and my ministerial colleague are working with the sponsor of the Bill to provide assistance and advice, purely on the workability and operational aspects of the Bill, and impacts of the Bill, should it gain Royal Assent. It is important for the purposes of this discussion that everybody is on the same page on that point. The Government are absolutely remaining neutral on the principle of the Bill, but it is our job to ensure that any Bill that passes through Parliament is workable and implementable as and when it gains Royal Assent.
Baroness Falkner: Will there be a human rights compatibility assessment as well as a delegated powers memorandum? Those are the other things that Government-sponsored legislation would have contained.
Daniel Francis
Q
Baroness Falkner: My answer will be very brief. Every additional piece of analysis is helpful, because there are gaps in the analysis. The problem is that because we have not had a consultation, and because the process of deliberation was not transparent—it never will be with a private Member’s Bill—there is a sense of not knowing quite enough as to the reasoning behind—
Terminally Ill Adults (End of Life) Bill (Third sitting)
Sarah Sackman ExcerptsTuesday 28th January 2025
(1 year, 8 months ago)
Public Bill CommitteesRead Full debate Terminally Ill Adults (End of Life) Bill 2024-26 View all Terminally Ill Adults (End of Life) Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 January 2025 - (28 Jan 2025)
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Q
Alex Ruck Keene: We have capacity, but we also have to make sure that it is settled, informed and voluntary, and that we do not have things like pressure or influence going on. It is important to make it clear that we are not just saying that this is about all the weight going on capacity. For instance, if you have social workers involved—if you have, say, palliative care social workers involved, assuming it is a palliative care situation—they are going to be far better informed about what options might be out there than a doctor, potentially, depending on the doctor. Social workers more generally might well have more expertise in picking up signs of coercion or influence than a doctor, but I do not necessarily want to get into, “Some disciplines are good at X” and “Some disciplines are good at Y”—I have come across brilliant examples and bad examples in both zones.
It is partly about multidisciplinariness and also about the fact that you have more than one person trying to talk it through. When I train, I always try to tell people that 85% of capacity assessments are not all that difficult —they are just made difficult because you do not have time or you are not listening—but 15% are more difficult. I think a lot of these will be in the 15% zone, and in that zone, the more people you can have thinking about it, so long as they have an agreed framework within which to think, the more reliable, transparent and accountable the outcome is going to be.
The Minister of State, Ministry of Justice (Sarah Sackman)
Q
Sir Nicholas Mostyn: The former.
Sarah Sackman
Q
Sir Nicholas Mostyn: It will have the statements in schedules 1 to 4, signed by both doctors twice. This is where it gets slightly tricky. Is the panel expected to be a ferret and say, “This does not quite chime for me”? The Committee will have to consider how investigative the panel will be, or whether it will purely sit back, be passive and work on the material it has. Of course, under clause 12, it has to hear orally. That might get the alarm bells going, but I believe that the panel should be entitled to call for further evidence if it has concerns. As I say, I have been trying to find out why 10% of cases were rejected by the panel in Spain. There must have been some kind of procurement of further evidence by the panel in order to do that.
Sarah Sackman
Q
Sir Nicholas Mostyn: Article 10 of the Spanish law gives an appeal on a point of law to their high court, so I would have the same, with an appeal on a point of law to the High Court, but only on a point of law.
Alex Ruck Keene: Either way—it would have to be either way. It could not just be against a decision not to approve, logically, because the current model is very odd in saying that you can only appeal one way to the High Court.
Sir Nicholas Mostyn: Yes. Spain gives either side the right to appeal, so I agree with that, but it is confined to a point of law.
Sir Max Hill: I would only add that I wonder whether that is the only route through, namely leaving open a judicial review appellate process, or whether, for example, as we imagine with a number of commissioner-led processes already in this jurisdiction, the panel—or frankly, I suspect, panels, which might sit regionally, chaired perhaps by the retired judiciary—would have an appellate route to a national body, which you could call a national commission, instead of a judicial-review route to the Court.
There are a large number of commissioners, some sitting under the Home Office and some sitting under the Ministry of Justice—in a sense, I was a commissioner when I was the independent reviewer of terrorism legislation—with closely defined powers. There are many others who sit in an enhanced regulatory position—highly qualified individuals. You could describe them as national commissioners, if that is an appropriate term, and they would have superintendence over regional panels, and the power to appoint retired judiciary, perhaps with the assistance of the Official Solicitor, to sit on those regional panels, and then to have an internal appellate mechanism.
Sir Nicholas Mostyn: You have to have an appeals process of some type, because otherwise there will be judicial review. If there is no appeal, there is judicial review—so you have to have an appeal of some type or there will be judicial review.
Sir Max Hill: Yes, I agree.
The Chair
We have some Members who want to ask more questions; we have about six minutes or so. Jake Richards, you did have a possible question earlier on.