Assisted Dying & the Parliamentary Process

Would an impact assessment help?

In case you missed them, there were two important interviews on the Today Programme on 26 November.  Although they were interesting in themselves, the justification for recording them in this newsletter is that they shed light on both the parliamentary legislative process and on the role of (regulatory) impact assessments.  

The background was an interview a few days ago in which Nicki Da Costa had complained that MPs were not being given sufficient time to debate the Assisted Dying Bill. 

The (excellent) interviewer this morning was Justin Webb. Here are lightly edited transcripts:

“Q.  Let's talk to David Natzler who is former Chief Clerk to the Commons and is on the line now.   ... Is Nicci Da Costa right, do you think?

A.  She is obviously right on matters of fact.  I have great respect for her but I'm afraid, in terms of interpretation, no!

There are two very simple points.  One is that the Public Bill Committee can sit for as long as it likes.  If one compares that with a government Bill - the  sort of bills for which Nikki was responsible - the amount of time they can sit is dictated by a programme motion agreed by the House and that gives them a date by which they have to finish.   So, for example, the Tobacco and Vapes Bill which they're discussing today in the Commons, they will then agree a programme motion where their committee will be told they have to report by the 30th of January (today being in late November) so that will be less time - a considerably less time - than the Public Bill Committee ... will have to discuss the Terminally Ill Adults Bill.

[Then there is] Report, which is the stage where the Bill has come back to the Commons and where everyone can participate; she is absolutely right. The four to five hours is as long as the standard day for Report but that is almost exactly the same as what a government Bill would get ... and if anything slightly more because the government Bill has to be brought to an end one hour before the end of the day so as to leave time for Third Reading debate [and for] votes on various amendments.

Q.  I suppose that one of the questions is whether the ground could have been laid, before all of this, for a more detailed consideration by MPs in the light of what various people were saying - but also in the light of the various factual things that need to be decided.   In other words, should there have been an impact assessment?

A.  Well an impact assessment is not carried out by MPs, as you will know.

Q.  Yes but it's something they then have access to.   That's the point.

A.  Yes they do but they have access to the Bill and, with great respect, it's not terribly difficult to see what the Bill is doing.  They've had 18 days in which to read it.

Earlier this year there was in fact [a report] by MPs on the Select Committee on Health and Social Care that took substantial evidence from all the main parties involved, if I can put it that way, or the expert bodies.   And if they find the Bill difficult to read there are full explanatory notes on the Bill, the same as if it was a government Bill.   There's also a 125 page House of Commons Library full briefing on the Bill which you may say doesn't take the place of a full government impact assessment.   

So again, taking if I may the parallel of Tobacco and Vapes which I was looking at now, the impact assessment is almost 300 pages full of fascinating economic calculations about the cost to tobacconists and so on - but I don't really think that it will be read through by that many Members of Parliament or indeed anybody else!  

So the fact is the Bill has been there for 18 days, it's entirely clear what it's doing.   It's obviously a difficult decision as to which way you're going to vote but I can't see that giving it much more time or having had yet more people looking at it in advance, and during, is going to be that helpful.”

Mr Webb then interviewed Lord Thomas, a former Lord Chief Justice

“Q.  Just to make it plain, right at the beginning, do you have a strong view on whether the Bill should or should not pass?

A.  I have no view. I see the arguments both ways and have no settled view.

Q.  Right.   When it comes to the role of judges what is your understanding of what the Bill suggests should happen.

A.  It is, I think, clear from the way the Bill is framed that the judge is to make a determination - so he is satisfied over the conditions set out.  It's not and cannot be a rubber stamping process.

Q.  So in that case we're talking, are we, about a process, a court process [Correct!] and that process would be in public presumably? [N.B. Maybe not; see further below] How do you see, from what you understand of the Bill, that process proceeding?

A. Well I think it's easiest to look at the three critical questions for the judge.  Many of the others are formalities.

The first is does the person have capacity?  I don't think that should generally prove to be a difficulty because the doctors will certify that.

But the two difficult questions are whether the person has a clear, settled and informed wish to end their own life and secondly whether the person who is making the declaration is doing this voluntarily and hasn't been coerced.

It's interesting that the certificates to the Bill specify that the two doctors have to certify that to the best of their knowledge - whereas of course the judge is required to be satisfied.  And from reading the Bill it's clear that there must be evidence before the judge.  The difficulty with the Bill is that it doesn't grapple with the question of how the evidence is to be put before the judge.

Q.  So you're saying it has to be more than a rubber stamp.  The judge has to see evidence and then, in a sense I suppose, has to be able to interrogate that evidence and that potentially is where the difficulty would be.  

A.  Yes, In this country the judge is not like the continental examining magistrate.  A judge has the evidence put before him.  Some years ago, I did an old DTI inquiry where you were inquisitor but you had a body of people who helped you get the evidence.   And it seems to me that the one really difficult question that hasn't been addressed in this is how is the judge to proceed.   It cannot possibly be a rubber stamping exercise.  There has to be a process by which the evidence is put before the judge and the judge will need help.  They will need either the official solicitor or some other body that can bring the evidence before him by making the relevant inquiries.

Q.   Which is a big workload not only on judges but on the whole system?

A.  Well ... I don't know.  I'm not going to say this is all impossible but what is not possible is to assess from the Bill the impact this has.  Normally in a Bill you have an impact assessment working out how all this is to be done and this is a private members bill and so there isn't one of those.  But I don't see how we can go forward on this because judicial approval is an integral part of the process.   

A lot of questions were discussed in a judgement of the Divisional Court and Court of Appeal and a case that came before the courts called Conway which raised some of these questions.   But as far as I can see no-one has grappled with the detail and of course, as it's an integral part of the Bill, you can't say "well, this is to be sorted out later".   It seems to me it needs to be grappled with now.

You also raised the question about is this to be done in in in public. Normally justice is done in public but there are exceptions and the really important point is that everyone's experience is that in families you get problems and supposing some parts of the family want the person to go ahead and others don't, or the person concerned is under a lot of pressure, you need to know and be satisfied that none of those conditions exist before you agree as a judge to this procedure going forward.

Q.  Can these things in your view be sorted out during the course of the passage of the Bill?

A.  Well it depends what the first vote is about.  If it's a vote in principle that we go ahead, as it is said that this is a vital part of the Bill then I think it should really be made clear now.   I mean normally you would know the process at the outset in much more detail than we have now and you would have some idea who's going to pay for this.   I see also that this is possibly a secondary consideration but the process and the impact on the court system is really something about which there should be information before we decide in principle to proceed . 

Whether the decision in principle is made on the Second Reading or at a subsequent stage, that's a matter for the House of Commons and I wouldn't wish to comment but all I’m saying is  - before right decision is really made to go ahead - an integral part of the process and its impact on the rest of the judicial system needs to be sorted out.”

Comment

I think that David Natzler is right when he argues that an impact assessment would not help.  These assessments focus on the potential cost of regulation to  businesses and civil society.  They don't address the concerns summarised by Lord Thomas.

But his Lordship's concerns sound real enough and will, I trust, be addressed as the Bill proceeds through both Houses.

Martin Stanley