Two crucial decisions were taken in the House of Commons a week ago. First, MPs voted by 330 to 275 to allow Kim Leadbeater’s Terminally Ill Adults (End of Life) Bill a second reading. Immediately afterwards, the public bill committee that will examine it next year was granted the power to ‘send for persons, papers and records’.
According to the Institute for Government, it is the first time a committee considering a private member’s bill has been given this power. It means MPs can take oral evidence from witnesses to help them refine the assisted dying bill’s detailed provisions.
Committee members will want to hear from medical practitioners. But they are also bound to call in Sir Andrew McFarlane, president of the High Court family division, to seek his views on the legal safeguards that the legislation seeks to introduce.
What can he say? Although the latest guidance to judges on appearances before select committees is available only to the judiciary, a version published in 2012 makes it clear that judges should not generally comment on bills before parliament.
‘Judges should be aware that comment on the merits of policy or bill provisions may be taken to represent the views of the judiciary as a whole,’ it says. ‘A perception of bias may thereby taint more than the individual judge.’
But exceptions apply when a bill directly affects the operation of the courts or the administration of justice. In those circumstances, judges may comment on the merits of a bill that affects the independence of the judiciary. They may also comment on the practical operation or technical aspects of the bill.
‘This exception reflects the judiciary’s interest in the effective administration of justice and the judiciary’s jointly held responsibility for the operation of the courts,’ the guidance says. So McFarlane can presumably tell MPs how to make the bill work properly without saying whether he thinks it should become law.
The committee will want to ask him about clause 12 of the bill, which requires the High Court to make a declaration if it is satisfied that other requirements in the legislation have been met. As the bill is currently drafted, court procedure is left for the judges to decide.
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So far, serving judges have avoided comment on Leadbeater’s scheme. But in a paper published on 14 November, McFarlane’s predecessor Sir James Munby observed that a similar proposal had been put to the High Court in 2017 by Noel Conway, a terminally ill man who died in 2021.
Assisted dying was not something they could authorise, the judges said. But both the High Court and the Court of Appeal raised concerns. In particular, they thought a judge would find it difficult to assess whether a person seeking assistance had been subjected to coercion.
‘The court would have to proceed on the evidence placed before it,’ said Lord Justice Sales. ‘External pressures might be very subtle and not visible to the court.’
Conway’s counsel tried to persuade the Court of Appeal that the evidence could be tested, perhaps by the appointment of an advocate to the court. But that would not be enough, the judges thought. Munby said there would need to be an independent agency ‘to carry out the kind of rigorous independent investigation traditionally carried out by the Official Solicitor’.
Leadbeater’s bill would certainly allow the High Court to see reports and question witnesses before deciding whether there had been pressure or coercion. But would that be a requirement?
Lord Thomas of Cwmgiedd, the former lord chief justice, observed recently that our judges do not act as inquisitors. But unless court rules require an independent investigation in every case – which seems unlikely – the court would need some way of discovering whether coercion was suspected. Perhaps relatives or friends would know. But there is no requirement in the bill to notify them or anyone else of an application to the court, an omission Munby regarded as ‘astonishing’. And there can be no appeal if the court grants a declaration, which Munby thought was ‘extraordinary’.
Many other questions are left unanswered by the bill. Would an oral hearing be required? If so, will it be in public or private? Will the person seeking assistance have the right to anonymity? How senior will the judge be? Will judges with conscientious objections be allowed to opt out?
It is no answer to say that these questions will be resolved by rules of court or decided by the judges as they arise. Parliament needs to know how the bill is meant to work before deciding whether to pass it.
But if McFarlane raises too many concerns when he is questioned by MPs, some on the committee may accuse him, unjustifiably, of trying to block the bill. And that is the one thing he must avoid.
joshua@rozenberg.net
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