Coroners and Justice Bill

I start with something that has not been said as yet. As someone who is opposed to the noble and learned Lord’s amendment I thank him for the measured way in which he spoke to it, as this can be a highly emotionally charged argument. However, I reject utterly two of his arguments. First, I suggest with great respect that the noble and learned Lord is deceiving himself if he believes that this is not part of a slippery slope situation. It is, and he must recognise that; the reasons were given eloquently by the noble Lord, Lord Elystan-Morgan, and I can certainly do no better than he. If the amendment is passed it will be seen as an approbation of Dignitas in Switzerland. I reject that point out of hand. I want to talk more substantially about the noble and learned Lord’s assertion, and the assertion of others, including the noble Lord, Lord Warner, that the present law lacks clarity. I suggest that the present law could not be clearer than it is. Our clear understanding for decades now—unless there is to be a decision in future to the contrary—has been that it is an offence to assist someone to travel to Switzerland or anywhere else to commit suicide. That is clearly understood. It is also clearly understood that, if you do that, you may be prosecuted. It is clearly understood—because the Crown Prosecution Service code test is there for every citizen of this country to see—that you may be prosecuted if, first, there is enough evidence to sustain a prosecution and, secondly, that it is in the public interest for a prosecution to occur. What could be clearer law than that? The only area of uncertainty is in the consequences of the exercise of personal responsibility. My view, as a Member of this House and a former Member of another place, is that the exercise of personal responsibility is actually rather important, and that we should leave an element of personal responsibility to be exercised by the citizen and not try as a state to legislate for it. I offer your Lordships an entirely non-religious but, I hope, ethical judgment, that it is better to leave a decision of this kind in the sphere of personal responsibility than in an opaque—and, I have to say to the noble and learned Lord, and I shall return to it—pragmatic and poorly drafted criminal defence. In so saying, I offer this: we underestimate in this country, and sometimes we underestimate at our peril, that in our unwritten constitution, one of the greatest protections against arbitrariness and oppression is the discretion of the Attorney-General and the Director of Public Prosecutions to prosecute, or not to prosecute, on the application of the CPS code test, including the question whether it is in the public interest. It has proved to be sound under the stewardship of a number of noble Lords in this House over a very long period, and I prefer it to the amendment on offer today. I say with respect to the noble Lord, Lord Low, that for me a place of greater safety is with the law that we have and the protection that I have described, rather than relying on this drafting or opinion polls, which by and large have been taken after a number of highly publicised cases. I say, too, that this is not any passing amendment; it has been prepared in a blaze of publicity. Everybody who knows anything about this issue, which is practically everybody in your Lordships' House—I hope everybody knows—knows that there has been assistance on offer, drafting on offer and, believe it or not, even free lawyers on offer to enable a good amendment to be brought before this House. The noble and learned Lord is a former Lord Chancellor; we are entitled to expect in this House that when a former Lord Chancellor places before the House an amendment on a matter of this importance, it will be well considered, well honed and usable. I am sure that the noble and learned Lord would not have presented it if he did not think that. We heard from the noble Lord, Lord Low, that noble Lords who put their names to this amendment would be willing to amend it, if it was thought that it could be made more practicable and useful. I am sure that that is the case—and I take that in the honourable spirit in which it was said. But the starting point is very important, given what we are dealing with. I shall not go through the amendment sentence by sentence, but I want to pick out for your Lordships a number of items from the drafting that frankly make me, as a lawyer, a parliamentarian and someone who has spent his life involved in public policy, shudder. First, the amendment contains a reference to approbation being given by two medical practitioners. From 1989 to 1999, I was a lay member of the General Medical Council. I sat on its conduct committee and its health committee. We heard processions of medical practitioners before those committees who had done outrageous things. We heard of private clinics, some of them in highly regarded streets of London, Manchester and Liverpool, that set themselves up to provide bogus cosmetic surgery, for example, from which to make money. I see absolutely nothing in this amendment that begins to approach the protection that the public need in this life or death situation. We have heard mention of Dr Shipman, but—and I am sorry to say this to the noble Lords who are doctors in this House, who are all extremely distinguished—there are many, many rogues in the medical profession. I had better say that I am sure that there are in the legal profession too. Then we have the phrase "independent of each other". What on earth does that mean? Where did it come from? Does it mean that they work from different premises, or does it mean that two members of the Royal College of Physicians would not be allowed to give opinions in the same case? It is so broad as to flash up the twos and blues of danger in its drafting. I am astonished that the proposed new clause has reached this point without that kind of problem being addressed. Then there is the phrase, "in good faith", used about the doctors. That really gives the game away, does it not? I do not know why it is there, as it is one of the most tautologous phrases that I have ever seen in a piece of statutory drafting, unless its purpose is to confirm in our minds that, among two entirely independent practitioners there will be some of bad faith. Well, amen to that—I am afraid that I agree. Then there is the question of the independent witness, chosen by the person who wishes to die. People in that position can be so easily persuaded that a person who is not really independent is to be seen as independent. Subsection (3) of the proposed new clause says: ""Independent witness" means a person who is not … likely to obtain any benefit from the death of T"." That does not mean that they can obtain no benefit, which raises the prospect that independent witnesses may indeed turn out to be beneficiaries from the death of the person concerned. Excluded from independent witnesses are a "close relative or friend" of the person concerned, but that does not exclude the partners of the close relative or friend. I give those as examples of a clause that really does not bear serious legal or ethical examination. My final conclusion is, as was said by the noble Baroness, Lady Emerton, that if we are to address this issue in a serious way, it has to be as a piece of whole legislation. Furthermore, it has to be considered as a piece of whole legislation, starting its life in the elected House of this Parliament and going through the democratic procedure provided by this Parliament. The role of your Lordships' House—and it is something that we do very well—is simply to look at the legislation and make it more workable. I believe that it is contrary to our democratic principle that so significant a change in our law should be slipped in as an amendment in a Bill of this kind. I urge your Lordships to go with me into the Lobby opposing this proposed new clause.