Assisted Dying Bill [HL]

Baroness Campbell of Surbiton Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Baroness Campbell of Surbiton (CB) [V]]

My Lords, I have been told many times that this Bill is about choice and autonomy. What right have I to deny some the choice of ending their life if they are suffering, when they do not tell me how to live my life? If only the issue were that simple—but it is not. It distorts the meaning of choice.

A person will choose assisted suicide only if they feel they have no other choice and it is better to die than carry on living. But this Bill does not give them a real choice; it does not guarantee universal palliative care, offer adequate support to those with progressive conditions, or remove the fear of being a burden. All are essential to support a pain-free and dignified end of life, but we all know that they are in very short supply. Rather, the Bill confirms their disempowered status and lack of choice. No one should feel that they would be better off dead. No one should have to witness a loved one in intolerable distress or pain, as so many of us have experienced—and I count myself among that number. It does not have to be like that. We must ensure that everyone at the end of life has a true choice before they consider the ultimate step of assisted suicide. Until that happens, I oppose this Bill.

I am not immune to dark thoughts when my health deteriorates and social care fails, or when I am told that I am at end of life and I am in pain—but my experience has taught me that universal patient-centred care is and has to be the first priority. One disabled woman sums it up very well. She wrote to me last week, “I am against this Bill. I have got a terminal illness, but when I am left to spend a painful night in my wheelchair because nobody turned up to put me to bed, I am going to think that assisted suicide might not be so bad after all. Why can’t people support us to live first, so that we wouldn’t get suicidal?” Is this Bill the best we can offer her?

The Bill would alter society’s view of those in vulnerable circumstances by signalling to the sick that an assisted suicide is something that they might or ought to consider. It will result in unintended, dangerous consequences, and we all know, from other jurisdictions where similar legislation exists, that it is simply not true to say that this does not happen. I know—I have been studying this for 20 years and this is the eighth time I have spoken on this matter in the House. Disabled people with terminal conditions, or progressive conditions such as mine, are alarmed by the misleading narrative of autonomy and choice. We must not abandon those who could benefit from high-quality health and social care to the desperate temptation of assisted suicide in the guise of a compassionate choice. This is a popular Bill, there is no doubt about it—but it is not the right Bill and I will not support it.

Domestic Abuse Bill

Baroness Campbell of Surbiton Excerpts

Wednesday 21st April 2021 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the House will recall that these amendments sought to bring all carers within the definition of domestic abuse that applies for the purposes of the Bill. This would include carers who are unpaid, such as neighbours and friends, as well as paid-for carers and people in a position of trust who care for disabled people. The noble Baronesses, Lady Campbell of Surbiton and Lady Grey-Thompson, and others were right to bring the issue of carer abuse to the attention of the House, and I was most grateful to have a discussion with both of them this morning. I just hope that, this afternoon, the tech of the noble Baroness, Lady Campbell, works so that we all have the benefit of her quite considerable expertise.

I fully accept that disabled people who are abused by a paid or volunteer carer are just as in need of effective protection and support as someone who is abused by an intimate partner or family member. We remain firmly of the view that the focus of the Bill should continue to be on domestic abuse as the term is internationally recognised in the Istanbul convention and elsewhere. The elected House has agreed that we need to maintain this focus and disagreed with Amendment 1 by a substantial majority of 139.

None the less, the Government have reflected carefully on the earlier debates in this House, and we want to ensure that the justice system and social care sector deal with carer abuse effectively, while preserving the definition of domestic abuse in the Bill as originally introduced. The Government are therefore committing to a review of the protections and support available to victims of carer abuse. The review will access existing criminal laws, safeguarding legislation, regulation by the Care Quality Commission, the protections available for non-regulated care and the support available for victims of carer abuse, including local authority and voluntary sector support. We would aim to complete the review within 12 months.

Of course, there will be an opportunity—we discussed this this morning—for organisations representing disabled people and others to engage in the review, and naturally we will want to discuss the details of the review with the noble Baroness, Lady Campbell. I will confirm something that I said this morning: we will not just do a series of round tables. I agree with her that data is absolutely key to underpinning some of the work that might need to go forward. The review’s intention is to address the concerns raised regarding the adequacy or otherwise of the current protections and the support for victims of carer abuse. I hope that, with the discussion that we had this morning and the undertakings this afternoon, the noble Baroness and indeed the House will be content to support the Motion and not insist on the amendments.

[Baroness Campbell of Surbiton (CB) [V]]

My Lords, I will speak to Lords Amendments 1, 2 and 3 and Motion A, moved by the Minister. As I have stated, I will not oppose the Motion.

First, I thank the Minister for our helpful meeting today; despite the technological challenges, we had a very good exchange. At that meeting, I explained why I have decided not to pursue further attempts to incorporate carer abuse of disabled people in the Bill. Although I think we all agree that the abuse of disabled people frequently takes place within a domestic setting, it has become clear that the Bill is confined to abuse by an intimate partner or family member. There is no appetite to widen its scope at this stage.

In addition, this long-awaited Bill, with its multi- functional role, will demand a great deal of resources to change the domestic abuse culture. I would not wish to hold up the task of addressing the horrendous domestic abuse experienced by thousands of adults and children every day—no way.

I am currently confident—especially after our conversation this morning—that the Government have taken on board the deep concerns expressed across this House at the exclusion of disabled people from the Bill. I believe that they are committed to finding alternative means to address carer abuse, as the current protections are clearly inadequate.

I was therefore very pleased that, in the consideration of Lords Amendments in another place, the Minister, Victoria Atkins, announced in response to my amendments that

“the Government abhor all abuse, and we have every sympathy for the spirit of these amendments”

in the name of the noble Baroness, Lady Campbell.

“Abuse of disabled people by their carers must be called out and acted upon ... we have listened carefully to the experiences and concerns raised in this House and the other place ... That is why the Government intend to carry out a review of the protections for people at risk of carer abuse. We will engage with ... the disabled sector on the scope of the review, but it would broadly seek to examine the protections offered against carer abuse and the support available to victims. We have listened and we will act.”—[Official Report, Commons, 15/4/21; col. 519.]


I should be grateful if all sides of the House would strongly support and engage with this review. I hope it will not keep anything off the table, including further legislative protections if necessary. I hope that the review will commence as soon as possible. Of course, I shall be chasing it and look forward to working with the Government and especially with disabled people’s organisations.

Carer abuse—as evidenced throughout the pandemic and during earlier debates and pre-legislative scrutiny—must not continue unchecked. Disabled people deserve to have equivalent protection—no less.

Domestic Abuse Bill

Baroness Campbell of Surbiton Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

Moved by

[Baroness Campbell of Surbiton]

46: Before Clause 65, in subsection (4), after inserted subsection (6)(g), insert—
“(h) A is a carer for B who is a disabled person.”Member’s explanatory statement
This amendment and the other in the name of Baroness Campbell of Surbiton to Amendment 45 would amend the new Clause in the name of Baroness Lister of Burtersett to ensure that the definition of “personally connected” in section 76 of the Serious Crime Act 2015 includes the relationship between a disabled person and their carer in line with the amendments to the definition in Clause 2 of this Bill in the name of Baroness Campbell of Surbiton.

[Baroness Campbell of Surbiton (CB) [V]]

My Lords, in moving Amendment 46, I will speak also to my Amendment 47 and to Amendment 45 in the name of the noble Baroness, Lady Lister, to which my amendments are attached and which I strongly support.

My amendments bring controlling or coercive behaviour within the scope of Section 76 of the Serious Crime Act 2015. Amendment 46 mirrors Amendment 4, which was considered and overwhelmingly agreed to by the House on Monday.

I had intended to divide the House on Amendment 46 if the Minister could not accept it. I will not do so for one reason, and one reason alone. Just this morning, I learned that it could jeopardise Amendment 45, which is supported by the Government. I have no wish to risk another important amendment and potentially lose both it and my amendment. I have great admiration for the noble Baroness, Lady Lister, and support her amendment overwhelmingly. Noble Lords will undoubtedly understand my reasons. I had not expected that kind of unwelcome surprise today.

Controlling or coercive behaviour, which is part of the definition of domestic abuse under Clause 1 of the Bill, is an offence under Section 76 of the Serious Crime Act. Such behaviour is unfortunately a common form of abuse by carers. Amendment 45 amends the definition of “personally connected” in Section 76 to align it with Clause 2. The importance of including disabled people applies equally to the offence under Section 76. I set this out extensively on Monday and will not rehearse those arguments. It is worth noting that the draft guidance on Clause 2 relies on the guidance on Section 76 to explain controlling or coercive behaviour. They are complementary.

The two sets of provisions are totally interrelated. These amendments would ensure they remain consistent and ensure the coherence of the statutory abuse regime. It is very disappointing to not be able to follow that through for the protection and safety of disabled people if these amendments do not go through today. I await the response of the Minister in the sincere hope that she will accept these amendments. I beg to move.

[Baroness Grey-Thompson (CB) [V]]

My Lords, I speak to Amendments 46 and 47, which are in the name of my noble friend Lady Campbell of Surbiton and to which my name is also added. Because Amendments 46 and 47 are an amendment to 45—and I do not wish to quote sections of the Companion to the Standing Orders to your Lordships’ House—I would like to make clear that those listed as signatories have been put in the unenviable position of making the heartbreaking decision of whether to divide the House and risk preventing the valuable amendment put by the noble Baroness, Lady Lister, from being passed.

In speaking after my noble friend, I do not wish to reiterate what has already been well articulated. I would like to thank the staff of your Lordships’ House, the disabled peoples’ organisations and many disabled women for the considerable amount of work they have put into this Bill. If there is one thing I ask of the Minister and the Bill team, it is that, when legislation that has such an impact on disabled people is being considered, disabled peoples’ organisations are expressly and extensively consulted. The added issues disabled people face should always be included.

On Monday it felt that, while we might not have convinced Her Majesty’s Government of the need to include disabled people in this Bill, the Chamber strongly supported my noble friend’s amendments. I would like to thank the 318 Peers who voted to support and include disabled people this week. I am expecting that there will be much support as we debate this group, but there will be push-back from Her Majesty’s Government.

Having re-read Hansard several times this week, I fear that we still have to convince Her Majesty’s Government of the need to protect disabled people. It is important and welcome that controlling or coercive behaviour is more widely understood across society, but that same protection does not appear to be afforded to disabled people. For that, I am extremely disappointed.

I wholly, but with a sad heart, support my noble friend’s decision tonight. As I mentioned at the beginning of my speech, my noble friend has been put in the unenviable position of having to explain to disabled people who experience abuse in a domestic setting—whom she has spent a considerable part of her working life supporting and protecting—that the politics and procedures we are operating under have excluded their place in the Bill.

I know from extensive discussions with those involved in these amendments that, in accepting and supporting the amendment of the noble Baroness, Lady Lister, which I absolutely do, if the House were divided we might put Amendment 45 at risk. There is always a price to pay by some in bringing legislation. Tonight, and in this instance, the price is being heavily paid by disabled people.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, as noble Lords have pointed out, Amendment 45 removes the cohabitation requirement contained within the controlling or coercive behaviour offence in Section 76 of the Serious Crime Act 2015. This would extend the reach of the offence, meaning that it may apply to post-separation abuse, or to any family member regardless of whether they lived with the victim.

As noble Lords will be aware, the current offence applies only to those who are “personally connected” as defined in Section 76 of the 2015 Act. This definition applies to those in an intimate personal relationship—whether or not they live together—or to those who live together and have either been in an intimate relationship or are members of the same family. The definition in the 2015 Act is therefore out of sync with the definition in Clause 2 of this Bill.

The Government have listened carefully to the debate in Committee, where the noble Baroness, Lady Lister of Burtersett, the noble Lord, Lord Hunt of Kings Heath, and many others argued for the controlling or coercive behaviour offence to be extended to cover post-separation abuse between intimate partners and interfamilial abuse regardless of whether the family members were living together. In Committee, I asked noble Lords to await the outcome of the review into the controlling or coercive behaviour offence—I really meant it—and I am pleased to say that this review has now been published.

The review found that police-recorded controlling or coercive behaviour offences, as well as prosecutions, have increased year on year since the introduction of the offence. However, the review also found there is still room for improvement in responding to this abhorrent crime. The review considered views from a number of stakeholders, who expressed concern that the cohabitation requirement in the offence is preventing some victims of this abuse from seeking justice, and that it poses challenges for police and prosecutors in evidencing and charging abusive behaviours under other applicable legislation.

Calls from domestic abuse services echo concerns around the cohabitation requirement of the offence, given that we know that victims who leave their perpetrators are often subjected to sustained or increased coercive or controlling behaviour after separation, and are statistically at the highest risk of homicide within the period immediately after they have left.

Controlling or coercive behaviour is an insidious form of domestic abuse and this Government are committed to ensuring that all victims are protected. We have heard the experts and considered the evidence on this issue and I am very pleased to support the amendments brought forward by the noble Baroness, Lady Lister. She has campaigned on it. She owns it. I am very happy that she is the sponsor. I commend the resolute campaigning on this issue by Surviving Economic Abuse and other organisations. I acknowledge the points made by the noble Baroness, Lady Warwick, and I will draw her comments to the attention of my colleagues in the MoJ.

Amendment 45 will bring the definition of “personally connected” as used in the controlling or coercive behaviour offence into line with that in Clause 2 of the Bill and send a clear message to both victims and perpetrators that controlling or coercive behaviours, irrespective of the living arrangements, are forms of domestic abuse.

This Government are committed to doing all we can support victims and to tackle offenders. I am delighted that, in removing the cohabitation requirement in the controlling or coercive behaviour offence, we can take another step towards ensuring that every victim has access to the protection they need.

Amendments 46 and 47 seek to expand the definition of “personally connected” within the revised offence of controlling or coercive behaviour to include both paid and unpaid carers. I made it very clear during the debate on Monday on earlier amendments tabled by the noble Baroness, Lady Campbell, that the Government absolutely recognise that abuse can be perpetrated by carers. The other point that I made on Monday was that many carers will be captured by the “personally connected” definition, being family members or partners. However, I reiterate that extending that definition in the context of what is a domestic abuse offence would have detrimental effects on the overall understanding of domestic abuse and the complexities of the familial and intimate partner relationships that domestic abuse is understood to encompass, where the affectionate emotional bond between the victim and the perpetrator plays an important role in the power dynamics. By extending the definition to include carers we would be broadening the definition of “personally connected” to include a much wider range of connections within health and social care settings, which are of course covered by other legislation, and would confuse the meaning of “domestic abuse”.

The noble Baronesses, Lady Lister and Lady Burt, talked about the important issue of ongoing training. I acknowledge that there is more to do to ensure that the offence is understood, and we will update the statutory guidance, in consultation with police and others.

In answer to the question from the noble Baroness, Lady Lister, about what next, we will be strengthening the legislation around controlling or coercive behaviour to ensure that all victims of domestic abuse are able to receive protection, regardless of their living arrangements with their abusers. This summer we will be publishing a domestic abuse strategy, which will build on the work to date to help to transform the response to domestic abuse and to tackle perpetrators. We will consider the wider policy and data recommendations made in the review throughout the development and implementation of the strategy, and we will of course continue to engage with domestic abuse organisations throughout the process.

The noble Baroness mentioned monitoring. At the moment, all legislation is subject to ongoing review and monitoring, and we have the very important benefit of the domestic abuse commissioner, who I know will be keeping a very careful eye on how the legislation is working in practice.

I will not repeat the other points that I made on Monday, but I hope that, in the light of the debate then and my response today, the noble Baroness, Lady Campbell, will be content not to move her amendment. To be clear, the Government’s position on Amendment 45, should Amendments 46 and 47 be moved, is that we will not support Amendments 46 and 47. There is cross-party support for Amendment 45 as currently drafted, and I urge the House not to detract from that should it come to a vote on Amendment 46. The House must of course first reach a decision on that amendment.

[Baroness Campbell of Surbiton (CB) [V]]

My Lords, I thank all noble Lords who have supported my amendments. I am grateful for the very kind words about my own personal commitment to these issues and that of my noble friend Lady Grey-Thompson, who has wheeled with me through this amendment rollercoaster today. Disabled people, who face so many barriers in their fight for equal dignity and safety from those who may abuse their vulnerability, need this support; it gives them all strength to carry on.

I am of course deeply saddened by the Minister’s response. As I said earlier, I am not able now to divide the House; my hands are tied. I have no alternative than, very sadly, to withdraw my amendment.

Amendment 46 (to Amendment 45) withdrawn.

Assisted Dying Bill [HL]

Baroness Campbell of Surbiton Excerpts

Friday 16th January 2015 Lords Chamber

[Lord Ashton of Hyde (Con)]

My Lords, the noble Baroness, Lady Campbell of Surbiton, has been trying to get in for some time. I think the Committee would like to hear from her.

[Baroness Campbell of Surbiton (CB)]

My Lords, I thank the Minister. I am sorry I have not got a loud voice. I may be a little slow. This is not because I want to hold up the Bill, I just have things to say.

We have been told time and again that disabled people with life-limiting conditions—and I use that term advisedly because we do not recognise the terms “terminal illness” and “months” or “weeks to live”; but more about that later, under a suitable amendment—have nothing to fear from the Bill. We are told that it is necessary only to help a few desperate individuals to end their lives when they have weeks or months to live, and that, if enacted, it will not touch anyone who does not want it. I do not believe that and, it seems, neither do the authors of the Bill. Why else would they elect to name it the Assisted Dying Bill instead of the assisted suicide Bill? If it is truly concerned only with personal autonomy and choice, surely that should be celebrated and clear.

By avoiding the term “assisted suicide”, the Bill circumvents the framework of measures in place to review, monitor and prevent other forms of suicide. It seeks to exclude deaths under the Bill from the general requirement for a coroner’s inquest to be conducted where suicide is considered a possible cause of death. It contains a provision for publication of annual statistics of “assisted deaths” separate from the established arrangements for collecting and publishing statistics on deaths by suicide. It provides for a death under the Bill to be recorded by the registrar as an “assisted death”.

I have a question for the Minister. This Government, like their predecessors, have a major cross-departmental suicide prevention strategy. It seeks,

“a reduction in the suicide rate in the general population in England”,

and defines suicide as,

“a deliberate act that intentionally ends one’s life”.

In the light of this definition, will the Minister inform us whether, if the Bill were to become law, he anticipates a rise in the suicide rate, and would he expect the suicide prevention strategy to contain measures to reduce the numbers in this group intentionally ending their own lives?

We all, in this House and outside, understand the word “suicide”. It centres on the individual. The act of suicide is the responsibility of the person who commits it, and no other. It is impossible to commit suicide without first consenting to do so. The same does not apply to the word “dying”.

Assisted dying is practised in Belgium, the Netherlands and elsewhere. Whatever the initial intentions were, decisions to end life in those places are now not taken only by the individual. It is not an autonomous act. The slippery slope is oiled by the vague euphemism of “assisted dying”. Disabled and terminally people are rightly frightened that the Bill, as currently named, puts them at risk. The purpose of the amendment is to provide some safeguards through the use of plain language. “Assisted suicide” makes it clear that only the individual may instigate and control the process leading to an early, state-sanctioned death. I urge noble Lords to support this argument.

[Lord Deben (Con)]

My Lords, there is a deep reason why so serious a Bill should be particularly careful about the language it uses. One of the problems we have today is that people use language in order to establish not the truth but a slight version of the truth that they wish to pass off. I hope the House will excuse me if I use what may appear to be a flippant example but I think it sums it up.

In the register of interests, I declare that I am the chairman of the Association of Professional Financial Advisers. The Financial Services Authority decided to call the changes that it wanted in the industry, “treating customers fairly”. This was done to suggest that anybody who did not agree with every fact in the policy would be treating customers unfairly. It was designed to have a particular effect.

--- Later in debate ---

[Noble Lords]

Hear, hear.

[Baroness Campbell of Surbiton]

I thank the Minister. My Lords, there are many reasons why I strongly oppose the Bill and why I have spoken against it in the past. But one of the most important reasons why I oppose the Bill is the definition of terminal illness and how many months, weeks or years we have to live. The definition in the Bill gives rise to uncertainty and is therefore terribly open to misinterpretation and abuse. Proponents of the Bill claim that “disabled” and “terminally ill” are distinct from one another. We are told that disabled people can be assured that the Bill is not intended to apply to them. I am not reassured, and I beg the patience of the House while I explain my reasons.

I have personally worked for more than 20 years with very severely disabled people with life-threatening conditions, great numbers of them with the definition of terminal illness. I know about terminal illness—believe me, I know. I know personally and professionally. That is why I wanted to give noble Lords my reasons today, and to take my time to do this, because I feel that it is one of the most important parts of the Bill that we must make safe. I know that the noble and learned Lord, Lord Falconer, would agree with me that we must make this safe for people who may die, who may not otherwise, because of this definition and because of the number of weeks that we are supposed to live or die. That is why I support the noble Baroness, Lady Finlay, and the noble Lord, Lord Carlile, on a reduction of the time limits.

I am fearful of the Bill not least because terminal illness is defined as an

“inevitably progressive condition which cannot be reversed by treatment”.

That definition could equally apply to many disabilities, my own included. It reinforces confusion between terminal illness and disability. The fear is that disabled people with progressive conditions will fall within the scope of the Bill. The clause on terminal illness does nothing to dispel that fear.

I remind your Lordships that not a single organisation of disabled or terminally ill people is actively campaigning for this legislation. We need to ask ourselves why. Why will they not campaign for a Bill that gives them autonomy to choose the time when they are to die? On the contrary, growing numbers of national charities are coming out to campaign against it. For example, Scope and Disability Rights UK, which have thousands of members who have progressive conditions, are also joining grass-roots networks of disabled people such as Not Dead Yet UK and the Disabled People’s Network. They all agree that it is impossible to create clear blue water between disability and terminal illness and as regards how many months until one might die. However, the Bill is before us now, and I have to accept that I need to do what I can to limit the harm that it would cause to terminally ill and disabled people were it to be enacted. That is why I support the amendment moved by the noble Baroness, Lady Finlay, and any other amendment that would introduce a shorter time limit as a safeguard to the central part of the Bill.

The definition of terminal illness in the Bill starts from:

“an inevitably progressive condition which cannot be reversed by treatment (a ‘terminal illness’)”,

from which the person,

“is reasonably expected to die within six months”.

The Bill adds the caveat:

“Treatment which only relieves the symptoms of an inevitably progressive condition temporarily is not to be regarded as treatment which can reverse that condition”.

I therefore looked at who the Bill might encompass. The brain, eyes, lungs, kidneys, pancreas, joints and nerves can all be subject to “inevitably progressive” conditions deteriorating at widely differing rates. Various forms of cancer, heart disease and neurological conditions can fit the criteria for “inevitably progressive” at some stages.

Children and young people are born and are surviving with a variety of life-limiting conditions for which the prognosis is very uncertain. Overall, significant numbers of children and adults fall within categories to which the definition,

“an inevitably progressive condition which cannot be reversed by treatment”,

is applicable. I found that it is only the fact that most are not,

“reasonably expected to die within six months”,

that keeps them outside the scope of the Bill. That is no protection at all, and I will explain why.

It would take only a chest infection or a small change in my muscle capacity for me to be put at risk. Throughout these debates we have heard from the noble Baroness, Lady Finlay, and from other noble Lords in the medical profession who are far more qualified than I, how prognosis is unreliable and that individual life expectancy is virtually impossible to predict with any accuracy. The catch-all of six months sends the invidious message that once you are down, you are on your way out, that once death is on the agenda of life, it outweighs every other consideration. For any newly diagnosed individual, it allows the early seeds of fear and doubt to be sown, perhaps by the individual, perhaps by family and friends, or perhaps by both. Words of hope and encouragement will have to compete against advice and expectation to shop around for a doctor willing to give a prognosis of six months or less. It invites everyone involved in the care and support of the individual to do less than their best. It is hard to believe in the value of life for a person who has been deprived of that belief themselves.

--- Later in debate ---

[Lord Low of Dalston]

My Lords, I wish to make three brief points. The noble Baroness, Lady Campbell, has told us that disabled people are worried that disability will be equated with terminal illness and that they will be made the subject of “do not resuscitate” notices—indeed, that this happens or, at least, has happened in particular cases. Like all of us, I hugely respect the sincerity of the noble Baroness and appreciate the strength and eloquence of her advocacy, but I genuinely believe that the fears that she has expressed, that this Bill will make the situation worse for disabled people, are misplaced.

I say this for two reasons. First, it is very important that we should be clear that the disabled person has to ask before they can be offered the facilities of this Bill to end their life. Secondly, they need to make an act of conscious choice before they avail themselves of these facilities. With all the safeguards in the Bill, it will actually make the situation of disabled people better.

Thirdly, it is further argued that, in consequence of these fears, disabled people are strongly opposed to this legislation. However, in actual fact, a recent YouGov poll found that 79% of registered disabled people—that is nearly four-fifths, very much in line with the rest of the population—support assisted dying for adults of sound mind with a terminal illness. So, for all these reasons, with the greatest respect, I believe that the arguments that have been advanced on behalf of disabled people are misconceived.

[Baroness Campbell of Surbiton]

My Lords, I feel urged to come in here after the noble Lord, Lord Low, with whom I have worked and whom I have known for many years. We have discussed this subject on numerous occasions, and noble Lords will imagine that we have had some quite heated discussions. I shall add a little bit of information to add clarification. The disability community is made up of people with terminal illnesses. Outside the House today, as noble Lords will know if they have gone out to talk to them, are people sitting in their wheelchairs with terminal conditions saying, “No, this is not about choice—this is not about me asking”. They have often been in situations when they have felt so low that they felt that they had no options; their social care and healthcare was bad and they wanted to die. They could have taken advantage of the Bill proposed by the noble and learned Lord, Lord Falconer, because they have a terminal illness. There are at least six people outside these walls today in the freezing cold who have a terminal illness.

There are many people with terminal illnesses in the disability community, and those people have come together to demand that on this Bill we should slow down and think again. They have campaigned for choice and autonomy all their lives, and now they are saying, no, this is not about choice—and we have to listen to them. So please do not tell me that this is not about disabled people. It is very much about us because we are the people with experience of these issues. With the greatest respect, many people who are campaigning for this measure have not experienced these issues. They are people in control of their lives. They are people who fear becoming what they see us as. So I ask, please, that disabled people should be very much a central part of this debate. We have to listen to what they say, even if we do not like what they have to say.

I wish also to make a point of clarification. There seems to be a misunderstanding among noble Lords that I think that terminal illness is about having a chest infection. If I thought that, I would think that I was dying at least three times a year. I am not talking about that. I am talking about life-threatening terminal situations, such as muscle deterioration in the throat, whereby you can no longer eat or drink. That is what I have. Part of the GMC’s guidance on terminal illness concerns that process. I refer also to muscle deterioration within the lungs so that you can no longer breathe. That is terminal. Muscle deterioration around the heart is terminal. COPD is terminal. People with these conditions are part of the disabled community. They are out there—go and talk to them. Answer the letters from disabled people who say that this is not about choice. Ask them why they are saying this. Do not make assumptions about them. This is why I felt that I had to intervene at this point.

[Lord Low of Dalston]

If people with terminal illnesses do not wish to take advantage of the provisions of this legislation, what is there about it that forces or requires them to do so?

[Baroness Campbell of Surbiton]

My Lords, the answer to the noble Lord’s question is that they fear that they will take advantage of this legislation when they are at their lowest with no choice. The noble Lord, Lord Low, will understand as much as I do about terminal situations where you do not have choices. These people have said that they do not want this Bill because they know that they might take advantage of it.

[Lord Alton of Liverpool]

Before my noble friend completes her remarks, has she had a chance to read the briefing that was sent to Members of your Lordships’ House only yesterday by the disabled people’s charity Scope, which says—this reinforces the point she has just made—that in the US state of Washington, where assisted dying is legal,

“61% of those requesting to end their lives did so because they felt a burden on friends, family or care-givers”?

Scope says in its briefing to your Lordships in support of the amendments we are considering:

“The definition in the Bill of ‘reasonably expected to die within six months’ would capture many disabled people”.

[Baroness Campbell of Surbiton]

I think that was a question to me from the noble Lord, Lord Alton. The answer is, yes, I did know about Scope’s role. In fact, Scope approached me to ask me to emphasise issues around prognosis in the debate today.

[Lord McColl of Dulwich (Con)]

My Lords—

Criminal Justice and Courts Bill

Baroness Campbell of Surbiton Excerpts

Tuesday 9th December 2014 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I support Motion B1 in the name of my noble friend Lord Pannick. Noble Lords will know that I have expressed serious concerns about Part 4 at every stage of the Bill, and I remain deeply troubled. I know only too well how much vulnerable people, especially those who are disabled, rely on state services and how catastrophic it is when things go horribly wrong. I feel that in the other place the Lord Chancellor is still peddling the line that judicial review has been hijacked by pressure groups for political campaigning, citing again and again the example of Richard III. If political campaigning includes campaigning for justice and people’s access to justice, then I am very happy to plead guilty; I am one of those campaigners.

The Lord Chancellor also said in the other place that tough times mean tough decisions and tough love. I agree with that, but judicial review is even more critical in times of stress—in tough times—to ensure that the Government do not ride roughshod over their citizens. These reforms must be seen in the context of cuts to legal aid which already hinder access to justice for those at the margins of society, especially disabled people. This is not an issue about lawyers protecting their status or income. I am sorry, but it just is not. Where is the evidence? It is truly about weakening the ability of ordinary vulnerable people to hold public bodies to account and increasing the power of the state.

Clause 64, if not amended, would require judges to refuse judicial review if the outcome would be highly likely to be no different. It would remove their discretion. We need their discretion. The Government want to exclude judicial review for what they call “minor technicalities” —for example, the need for a bit more consultation. So much for due process. Removing judges’ current discretion would allow unlawful or dishonest decisions to go unchecked and public bodies to be let off the hook. It would also dramatically change the role of judges in second guessing what might have been. I cannot understand it. It cannot be right. The amendments made by this House to restore judicial discretion were rejected in the other place. I thank my noble friend Lord Pannick for his Motion and entirely support it. I seriously urge all Members of your Lordships’ House to think beyond the campaigning and those odd cases where it may have been quite ridiculous and to think about the hundreds of very vulnerable people who will need this over the coming years as, I have to tell the House, things are getting really tough for us.

[Lord Woolf (CB)]

My Lords, it is always important to listen to what is said by the noble Baroness, Lady Campbell of Surbiton. She has an insight into these matters that Members of the House who come from a legal background, as I obviously do, do not have personal experience of. It is very apposite that she should have said what she just said. I hope that the House will heed her plea.

Knowing that the noble Lord, Lord Pannick, would have to go to Moscow, I am bound to say that I had prepared for him not to be here, and therefore had prepared a much longer speech than I am going to give. But I would like to add just one or two things. As I am sure your Lordships understand, this is a very important issue. If noble and learned Lords have any ability to assist and advise the House, then it was clear in the earlier stages of the Bill that this was something they thought was wrong. They gave their reasons, and I played a leading part in that. The reason we did so was that we thought it was going to be bad for justice, for the citizens of this country and for the reputation of this country as a leading adherent of the rule of law. Judicial review is all about the rule of law. Every application that has any prospect of succeeding initially has to prove that something happened which the Lord Chancellor and the judges would regard as being unlawful. So if you are refusing relief in this situation, you are doing it with regard to something which has been illegal, or is in a position where there could be illegality.

The second thing to remember is that the procedure for judicial review is an exceptional procedure, designed initially by the judges, but then enacted in what was the Supreme Court Act and is now the Senior Courts Act 1981, in Section 31, which sets out the position as to the jurisdiction of the courts. That section makes it clear that heavy responsibilities are placed upon the judiciary with regard to its operation. The safeguards are there, because they have a very heavy responsibility of holding the balance. The amendment we are now considering is a small one. It is in relation to the first amendment, which I am addressing. As required by the Government, the judge—the word in question is— “must”. As required by the amendment, the word is “may”. The difference between us is “must” and “may”. As you have already heard, in the House of Commons—and I am going to come back to this—the Lord Chancellor misled the House. I have to say that. I am sure the Minister will accept it. He said to it that each of the amendments—

Criminal Justice and Courts Bill

Baroness Campbell of Surbiton Excerpts

Monday 27th October 2014 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I, too, wish to add my support to these amendments for the reasons so clearly explained by my noble friend Lord Pannick and others. As noble Lords are aware, I have contributed to the debate on this part of the Bill throughout its passage through the House. Let me explain why. I have supported the amendments because I want to show how these government reforms will affect disadvantaged citizens, especially the 10 million disabled people in this country who seek legal justice. Sometimes I think that we forget about the disadvantaged, the poor and the disabled who have no means or recourse to abuse. They simply want access to justice.

I know—I really know—what disabled people experience on a daily basis. I do not need to remind the House that when public authorities get it wrong, my God, they get it wrong and it has devastating effects on the individual. It hits disabled people particularly hard because they are the most in need of taking public authorities to court to get justice for their services—the services that they rely on to survive and live. They are absolutely, disproportionately dependent on public services and judicial review. As I said before, I have never known judicial review to be abused by disabled people or the charities that support them.

Claude 70 will effectively allow public authorities to ignore due process. That cuts across the public sector equality duty, which is so crucial in holding public authorities to account. Coupled with the cuts to legal aid, Clause 70 will effectively deny access to justice to those who most need it—not the big companies or multinationals, but just the people who need it, those at the margins of society. That is not the kind of justice we want in our democracy for vulnerable citizens. This clause has absolutely no place on the statute book in these terms.

[Lord Carlile of Berriew (LD)]

My Lords, my name is added to a number of these amendments, and I will not repeat everything that has already been said, most especially by the noble Lord, Lord Pannick, the noble and learned Lord, Lord Woolf, and my noble friend Lord Marks. However, I cannot let this debate pass without making three comments about the unusual speech made by my noble friend Lord Horam.

First, his speech was inaccurate. He blamed judicial review for delays in infrastructure development and for making infrastructure development more expensive. Had my noble friend taken the trouble to read the successful judicial reviews of infrastructure development, he would have found that in 95% of the cases—and I may be underestimating that—the judicial review was granted because of the incompetence and sloppiness of officialdom ranging from government departments through to local authorities and other statutory organisations. The answer to that is for those public authorities to prepare their cases properly, to make their planning applications in due form and for Ministers, in appropriate cases, to call in major planning issues so that they can be decided more quickly.

Secondly, my noble friend’s speech was unusually statist. In his career he has, in a very distinguished way, exercised his principles repeatedly, having been a member of three political parties. As I understand it, he left his first party—the old Labour Party—because he regarded it as too statist, yet nothing could sound more statist than what he said just a few minutes ago. I am personally in favour of HS2, fracking and the Severn barrage.

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[Lord Lester of Herne Hill]

My Lords, I wish to make a couple of points in addition in support of the amendment. My personal experience in cases has been that third-party interveners in judicial review proceedings perform a vital task in enabling the judicial review court, if it so wishes, to open its windows on to a wider range of considerations. We are not dealing with a dispute between two civil parties. We are dealing, as has been said, with judicial review designed in the public interest to resolve questions of public law. One such case has been implicitly referred to by the noble Lord, Lord Pannick—the case in which the High Commissioner for Refugees intervened in a difficult point about the proper construction of the refugee convention read with our other provisions. The court found it extremely valuable and it enabled the court, led by Lord Bingham, to give an authoritative ruling on what were novel issues about the refugee convention.

Another case was from Northern Ireland. One of the strange things about the Bill, which I hope the Minister will deal with in his reply, is that this provision does not apply to Northern Ireland or Scotland. The Northern Ireland Human Rights Commission had to struggle for some years to have a right of audience at all and to be able to make third-party interventions. Members of the House will remember that a couple of years ago, the Attorney-General for Northern Ireland wanted to commit Peter Hain for scandalising the judiciary by daring in his memoirs to criticise the Northern Ireland High Court judge. The Attorney-General applied to commit for contempt. I was instructed by the Northern Ireland Human Rights Commission to make a third-party intervention. I like to think that the result of that written submission is what caused the Attorney-General to drop the whole idea, as he did.

Unless I am completely wrong, we are now in the curious position that the Northern Ireland Human Rights Commission will be able, with its very limited budget, to be a third-party intervener without this costs effect, whereas the Equality and Human Rights Commission, for example, with its limited budget, will not be in the same position. That seems arbitrary and it will make it harder for our senior judiciary to be helped by third parties, which is the whole object of the third-party intervention.

Another example from the distant past concerned privacy in relation to the disclosure of patients’ medical information in the Court of Appeal. I seem to remember that a third-party intervention in that case was absolutely crucial. It is vital that small NGOs and ordinary citizens who have something to contribute, if the court decides that it wants to hear from them or read their written submissions, should be able to do so without the threat of costs orders being made against them.

[Baroness Campbell of Surbiton (CB)]

My Lords, I wish to add my support for the amendments proposed by my noble friend Lord Pannick. This provision will, indeed, deter interventions from organisations with limited resources—organisations, as my noble friend Lord Low suggested, that are likely to have the best and most pertinent expertise about the more vulnerable sectors of our society: children, disabled people, elderly people. Judges have publicly recognised the value of specialist knowledge in helping them to make informed decisions, as demonstrated by my examples in Committee. I had the privilege to be involved in interventions in two landmark cases where my organisation and individual knowledge could contribute to the outcome, which everybody heralded as a great success. I know that the Government’s reforms would have deterred me and my organisation from intervening. I believe that cases will be very poor for that.

It is critical that intervention remains readily available and that we do not deter weak charities and individuals who are quite sceptical about getting involved at all. Let us face it, intervening in a High Court case is a scary prospect. I know because I remember I was terrified. Therefore, I believe that these provisions will have a devastating effect, particularly on the community that I know best, disabled people—the very people who need the most support, protection and expert advice, coming from maybe some of the people who know them best and who have themselves experienced what they might have been going through or might go through. Clause 73 cannot be allowed to stand because there will be no interventions of such knowledge and value—interventions that have literally changed the lives of some disabled individuals and interventions that will change the lives of those who come before the courts in the future.

[Lord Faulks]

My Lords, I am grateful to all noble Lords who have taken part in the debate on interveners. The position is that any person may apply to the court to give evidence or make representations in judicial review proceedings. However, we think it is right that people who intervene in judicial reviews should have a fairer financial stake in the case and do so in a way that does not cause the true parties to the judicial review additional costs.

Clause 73 aims to strengthen the costs rules in relation to third parties who voluntarily apply to join in judicial review cases as interveners. It does this by establishing two presumptions: first, that the court will order an intervener to pay their own costs—that is normally the position now; secondly, that it will order an intervener to pay the reasonable costs that they cause a party to the judicial review to incur by their intervention. However, neither would apply where, in the view of the court, there are exceptional circumstances making it appropriate for that presumption to be rebutted. Neither presumption will apply when the court invites an intervention—and courts do quite often invite interventions. The clause will not affect the judge’s ability to invite whichever interventions, from whichever interveners, he or she sees fit.

The clause has been subject to significant debate and, as I said at Second Reading and in Committee in this place, and as my honourable friend Shailesh Vara said in the other place, the Government wanted to look again at how best to ensure that interveners consider carefully the costs implications of intervening, while not deterring appropriate interventions in appropriate cases, and, as a result, whether any changes to the clause were required. We have taken into account the views expressed in this House and the other place. The Government have listened to the concerns raised in Parliament and by stakeholders but consider that the current clause is right and are not persuaded that amendment is needed. The Government have considered and discussed the clause in some detail. I know that my ministerial colleagues have also discussed it with fellow Peers. I regret to say that we have been unable to agree an alternative formulation. The Government recognise that interveners can add value to a case and we do not want to stop that. However, interventions should be made in the right cases after careful consideration beforehand. That means that interveners should have a fair financial stake in the case.

Criminal Justice and Courts Bill

Baroness Campbell of Surbiton Excerpts

Monday 27th October 2014 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I strongly support the two amendments in this group. My noble friend Lord Pannick has explained their crucial importance, as has the noble Lord, Lord Beecham. I wish to highlight only one point, which is why I am here at this hour—very usual for me.

It is crucial because if there is one element in the Government’s so-called “reforms” that causes me the most anguish, it is restrictions on legal aid. For many, many disadvantaged people, legal aid is the only way they can pursue their legitimate rights. When it is denied, justice is denied. This is particularly true of judicial review proceedings. I want us to leave here tonight contemplating the fact that, in the landmark decision this summer, the residence test was found unlawful. The court reviewed real-life examples of people who would be ineligible for legal aid in future. The one that struck me the most was the example cited of “P”, a severely learning-disabled adult who had been forced to live in a dog kennel outside the house, had been beaten regularly by his brother and mother, and starved over an extensive period of time. For me, this story encapsulates why we must support these amendments in some way. If we do not vote tonight, we must truly think about how we are going to address this situation. The Government’s residence test for legal aid has no basis in law and, I am afraid, will without doubt deny justice to those who need it most—perhaps the man in the dog kennel.

[Lord Deben (Con)]

My Lords, many cases have been put before us in these debates in which we have argued the facts. We have disagreed about whether particular measures will have this or that effect. This is not the same kind of discussion. I can see that we could have quite a lengthy discussion about the access to our courts of foreign nationals and the cost to the nation of that.

However, that is not what I want to argue here. I want to argue something that is more serious because it is not a matter of opinion but of behaviour. If a responsible Minister has made an undertaking about a law and that has been accepted by the House, if that undertaking is to be changed, it must be changed in front of the House in circumstances in which the House can make a decision. I am a bit tired of the constant statement by Ministers that there is the affirmative resolution procedure, as if that made any real difference. We all know perfectly well that the system that we have means that there is very little effective parliamentary control over legislation that is passed by those techniques.

If Parliament has been assured by a Secretary of State that a particular situation pertains, it is morally unacceptable that some other Secretary of State can reverse that without Parliament being able to argue the case. I say that as somebody who may not have gone all the way along with some of the arguments about access to justice for people wherever they come from and the rest. I certainly have some concerns—I think many Members of the House have concerns—about the way that our system has been used in the past. I certainly have a real concern about the exclusion of children; I agree with the noble Lord opposite on that. However, that is not the issue for the House today. That is why I am very sorry that we are debating it so late, at a point when the Opposition have decided that it is perfectly possible to send all their people home. Some people might ask why people thought that they would have an early night when matters of real importance—this amendment and the previous one—were being discussed. I think that many will ask that question.

The Government and the Minister need to stand up and explain to the House how it is possible, in a democratic society, for a Secretary of State to give an undertaking to the House as to what a Bill means and for that then to be changed without an opportunity for debate in the House. That is a really serious issue and not one of an ordinary kind. Although we will not vote on this, because one can see the nature of it, I hope that the Minister will take back to his colleagues that this is not a debate of the same kind that we have had up to now. It is a serious issue because people must trust the words of Ministers when they speak officially. I was a Minister for 16 years and I do not think that I can remember a moment when I would have reversed the public statement of a predecessor without giving an opportunity for that debate to take place publicly and clearly. On this occasion, the House has every reason to say that this is not good enough.

Criminal Justice and Courts Bill

Baroness Campbell of Surbiton Excerpts

Wednesday 30th July 2014 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support the amendment. I notice that the Minister has invoked the senior judiciary in other aspects of the Bill. I remind the Committee that there is considerable judicial support for interventions—and not just in the Supreme Court. Judges have a very wide discretion in allowing such interventions. Only last October the noble and learned Baroness, Lady Hale—who is a Supreme Court judge, but she was speaking generally—spoke about how the more difficult a matter is on an important subject in the courts, the more help we need to try to get the right answer.

Interventions are enormously helpful. That is the view of the judges dealing with these kinds of cases. They have discretion as to whether to allow the intervention. Interventions come from organisations that do not have great resources. More often than not, the lawyers are in fact acting pro bono for NGOs and bodies such as Justice, of which I am chair of the council. The idea that this will now involve the real risk of incurring costs will have a very detrimental effect on something that is of enormous benefit in reaching a just resolution to many issues. I strongly support the amendment. I hope there will be second thoughts as to whether the change should be introduced.

[Baroness Campbell of Surbiton (CB)]

My Lords, I wish to speak in support of all the amendments in this group and, in particular, Amendment 74, in the name of my noble friend Lord Pannick, and to oppose the Question that Clause 67 stand part of the Bill.

There is a very strong presumption that interveners will be liable for the other party’s costs arising from an intervention, as well as their own, unless there are exceptional circumstances. This, as I understand it, is regardless of the outcome of the case and of whether the intervention helped, so potentially they could be liable for the legal costs of the party who loses the case. As a lay person, I do not see the justice in that. At present, the court decides who pays the costs and, for me, this works perfectly well.

This provision appears to the lay person to be designed for one purpose only—to deter interventions from organisations with limited resources. Unlike government departments, they could not contemplate such a risk. That applies to many charities; I spoke about this at Second Reading. Many of them have very small budgets and are run by volunteers, who are only too aware—perhaps they are overcautious—of their responsibility to avoid any financial risks.

Judges have consistently acknowledged the value of interventions in helping them to come to the right decision. It is in the public interest that they hear relevant evidence on important issues. If fewer interventions are made, they will lose vital sources of expertise, especially in relation to those most in need of protecting. The intervention of the Equality and Human Rights Commission in the case of R (B) v DPP in 2009 is a really good example of this. In this case the Crown Prosecution Service stopped a prosecution because the victim had a mental illness. This led to valuable new guidance on dealing with vulnerable witnesses and defendants in the criminal justice system.

During my time at the Disability Rights Commission —I was on the legal committee at that time—the DRC’s intervention in Burke, a case concerning the GMC’s guidance on the withdrawal of food, hydration and treatment, was, unusually, singled out for praise by Mr Justice Munby. He referred to,

“a particular and highly relevant informed expertise which none of the other parties could bring to the task in hand”'.

I have to declare an interest here as I was closely involved as part of the intervention body. This landmark case has had a profoundly positive effect on the patient/doctor relationship in this country when it comes to planning end-of-life treatment.

Interventions have a long and distinguished history and we cannot allow that to be weakened for the sake of the one or two examples of the bad apple. Where would we be today without the Leslie Burke case?

[Lord Carlile of Berriew (LD)]

My Lords, I rise with an appeal to my noble friend the Minister, whom I know to be a very good lawyer and a very sensible person, to accept the view being expressed around this Committee that this clause should not appear in the Bill.

I added my name to those intending to oppose the clause because I believe that, if there is one clause in the Bill that does grievous bodily harm to judicial review in this country, it is this one. Judicial review, as the noble Lord, Lord Pannick, said eloquently in his introduction—and as the noble Baroness, Lady Kennedy, illustrated, too—has over the years benefited from numerous interventions, sometimes from surprising sources. We are familiar with interventions by Liberty. When I was the independent reviewer of terrorism legislation, I disagreed strongly with some of those interventions, but I valued every single one because they enabled the issues of national security that were before the courts to be tested at all levels of judicial review and not merely in the House of Lords or the Supreme Court.

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[Lord Marks of Henley-on-Thames]

On Clause 68, there is only one amendment in my name, Amendment 75F, which removes subsections (6) to (11). The reason for that is we firmly believe that the making of costs capping orders should be left to the discretion of the court in appropriate circumstances. Of course, those depend on the financial circumstances of the parties, which are mentioned in subsection (5), so they should stay in Clause 68. However, the factors that are set out in subsections (6), (7) and (8) relate to public interest proceedings and might legitimately influence the decision of the court in an appropriate case.

By Amendment 80A in relation to Clause 69—I am proceeding on the basis of a suggestion that Clauses 68 and 69 should be debated together—which is in my name and that of my noble friends Lord Lester of Herne Hill and Lord Carlile of Berriew, further factors are listed as factors that the court should take into account.

In relation to the explanation that the Minister has just given of the origin of the costs capping jurisdiction, I fully accept that the Corner House principles limit the jurisdiction to public interest proceedings. I am not sure that that limitation is legitimate or necessary, although it is plainly relevant. The reason I suggest that it is not necessary to limit it in that way is that there may be unusual cases where an individual is so justifiably aggrieved by an unlawful decision of a public body in a case which does not have universal or public importance that a costs capping order or a protected costs order might be appropriate, even though there is no wider public interest.

I fully support Amendments 75 and 75A in respect of Clause 68, which would remove the bar on making a costs capping order until after the permission stage. For my part, I can see no reason for such a bar, unless it were to choke off applications for leave to apply for judicial review for fear of an uncapped costs order. That, I suggest, is an unacceptable reason for stifling proceedings at that stage.

Our Amendments 77A, 80A and 80C to Clause 69 would restore the position that costs capping orders in judicial review proceedings are discretionary. Amendment 77A would require the court, when considering making such an order and then in considering the terms of any such order, to have regard to all the circumstances of the case. There would then follow a list of circumstances to which the court should have regard. This is a common enough formulation: in the provision of a non-exhaustive list, Parliament gives an indication to the courts as to the factors that should be considered. However, in its acknowledgement of the fallibility of lawmakers, and of the range of possibly unforeseeable circumstances, as mentioned by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the requirement that the court should have regard to all the circumstances of the case is, I suggest, a just and sensible one, which would allow judges to make the right decision in the particular cases that come before them.

As I have said, Amendment 80A would add to the list of factors that the courts should take into account all the factors drawn from the present proposals in Clause 68. These factors would not—and, I suggest, should not—be ranked in any particular order of importance. The court would be entitled to have regard to them as it thought appropriate. As I have also said, this does not require public interest considerations to be a precondition for a costs capping order.

Amendment 80C would remove the requirement that a costs capping order in favour of an applicant would necessarily import a requirement that the court make a costs capping order in favour of the defendant at the same time. It would make the imposition of such an order discretionary in any given case. This was the present position, as outlined by the noble Lord, Lord Pannick, in answer to the question posed by my noble and learned friend Lord Mackay of Clashfern. It does not seem to me that there is anything sensible or justifiable in an automatic rule that what is sauce for the goose is sauce for the gander. It may sometimes be appropriate to make a costs capping order in relation to a defendant’s costs—more rarely, I suggest, because of the nature of the parties, than it is to make such an order in respect of an applicant’s costs. But again, I see no reason for interfering with the discretion of a court to make whatever orders appear to it to be just.

[Baroness Campbell of Surbiton]

My Lords, I also wish to speak—[Interruption.]. Sorry, I did not intend to knock over the microphone. Let me begin again.

My Lords, I support all the amendments in this group, in particular Amendments 75 to 77 and Amendment 81, in the name of my noble friend Lord Pannick, and I oppose the Question that Clause 68 stand part of the Bill.

The proposals are yet another barrier to access to justice. While we are talking about barriers to access to justice and people’s access to advocacy, I hope that the Minister will humour me—unfortunately, I have not yet figured out a way to intervene when he is speaking, apart from waving my arms about—and allow me to come back to him on the subject of the importance of cases and of intervening in such cases. Cases are often not all about winning or losing; they are about what we all gain from the proceedings. Yes, Leslie Burke lost on appeal, but his was the first case that prompted the GMC to change the guidelines on issues of life and death, and to begin to change the nature of the involvement of patients in their treatment. So we gained from that case, even though it was lost on appeal. That shows us how important access to justice is—not necessarily just for the particular case, but for what it offers us all in society.

The Government’s proposals on costs capping are deeply worrying in two respects. As I understand it, under Clause 68 the court can make an order only if the claimant already has permission to ask for judicial review. This will have a dramatic effect on access to justice. At present, an order can be made before the claimant asks for permission, so the claimant knows from the outset how much they will be liable for. This is vital, because most of the work is done in the early stages before the permission hearing. The Government themselves have said their costs can amount to £30,000. Without the protection of an order, most charities will simply not be able to seek permission. The risk is too great.

The clause defines “public interest proceedings” and sets out the matters the court must consider in deciding that question. But the Lord Chancellor can change those matters by regulations. That cannot be right. In effect, the Lord Chancellor is surely then able to dictate to the court what is in the public interest—when it is the Government who are most likely to be the target of such proceedings.

These proposals have to be seen in the context of the whole package of increasingly worrying legal reforms. As legal aid is withdrawn in cases of significant public interest, costs capping becomes even more important. In a recent case that I know of, a disabled and destitute man from Nigeria, who had been living on the streets, was denied legal aid and was able to get his case brought before the courts only because he got a protective costs order. If costs capping is severely restricted, what chance will individuals have of holding public bodies to account? I am mystified. This is yet another barrier in the way of ordinary people getting access to justice at every level—and it is the marginalised who will be most affected.

Both the Joint Committee on Human Rights and the Constitution Committee of this House have expressed concerns about these proposals. Their effect will be to drive away all but the wealthiest of claimants. The one route available for righting wrongs will be eroded for those who most need it. I do not feel that we can allow this to happen.

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[Lord Woolf]

My Lords, I have added my name in support of the amendment that the noble Lord, Lord Pannick, has advanced so elegantly. It is perhaps appropriate that it should be considered this afternoon because it will be recalled that this morning I was gently—but I do not think appropriately—chided by the noble and learned Lord, Lord Mackay, for going too far in my comments about legal aid provision with regard to judicial review and the effect of the action being taken in that respect. I respectfully suggest that what we have just heard indicates that there is real reason to be concerned at the reduction of legal aid in respect of judicial review. The points made by the noble Lord, Lord Pannick, with regard to the shortcomings of regulations being used in respect of this area of legislation are very well founded.

[Baroness Campbell of Surbiton]

My Lords, I speak in support of all the amendments in this group, and in particular Amendments 82 and 85 in the name of my noble friend Lord Pannick. I must say that he has put down some very sensible amendments, which spoke to me—so much so that I decided to change my holiday plans and be here on the last day.

The issue of legal aid is inherently linked to the provisions in Part 4. It is part of a package of reforms that seem to have a very strong common thread—they make it so much harder to challenge public bodies when they act unlawfully. That right to challenge belongs to every citizen, whatever their background or means, but without legal advice and representation it is a truly empty right. That is particularly true of those at the margins of society who may be most affected when public authorities get it wrong—and sometimes they get it very wrong. I am particularly familiar with that territory due to my long career in social care and disability public services.

The legal aid reforms, which restrict its availability for judicial review, are one of the most damaging elements of this package. Coupled with the proposals on the costs of interventions and costs capping, they make it nigh impossible for the vulnerable to bring a claim. I supported my noble friend Lord Pannick in his Motion of Regret on the regulations that came into effect in April—not only for what they said but for the way in which they were introduced. The Joint Committee on Human Rights was highly critical of that. In their response this month, the Government say that legal aid for judicial review does not require a higher level of scrutiny. Honestly, that shows a remarkable lack of understanding of why judicial review is so important to the rule of law and why legal aid is so crucial to its effectiveness. Two weeks, ago the High Court ruled that the Government’s proposals for a residence test for legal aid were unlawful. We all remember that one. The Secretary of State had exceeded his powers and the test was discriminatory. The judgment confirms that the Government have been pushing the boundaries of what Parliament intended.

The Government’s approach to legal aid and their view of its importance to judicial review is deeply disturbing. However much the Lord Chancellor may disapprove, those who campaign for justice are entitled to legal aid to challenge the Government—or any other public body—when they get it wrong. Campaigning is in my DNA, which is why I support these amendments. I am a campaigner; not a left-wing, right-wing, or middle-wing campaigner. I am just a campaigner, who has been involved in judicial review to make society and our communities bigger, wiser and more effective. Again, that is why I support these amendments.

Criminal Justice and Courts Bill

Baroness Campbell of Surbiton Excerpts

Monday 28th July 2014 Lords Chamber

The Minister pursued this argument at Second Reading with considerable skill, courage and, perhaps I may say, stamina. All fair-minded and objective people who are concerned about the bigger picture and not just about the legal situation will see that there is a lot of sense in what he is saying.

[Baroness Campbell of Surbiton (CB)]

My Lords, I support all the amendments in this group, particularly Amendments 70, 71, 72 and 73 in the names of my noble friend Lord Pannick and my noble and learned friend Lord Woolf, and I oppose the question that Clause 64 stand part of the Bill. Like the noble Baroness, Lady Lister, I also need to lend my voice to this area of reform from the perspective of the ordinary person. I look at this through the prism of those with little power, little control and very little knowledge.

Clause 64 strikes a blow at the heart of democracy, viewed with the other provisions of Part 4 and the Government’s legal aid reforms. We all agree that British citizens, whether rich or poor, able or disabled, have a democratic right to access the justice system. As I said at Second Reading, holding public bodies to account when they get it just plain wrong is a vital part of the rule of law, and I believe that it leads to better services. I cannot understand why the Government would want to restrict it; surely it is something that we would all welcome.

The clause moves the goal posts when people seek judicial review. It lowers the test and forces judges to refuse it where currently they have discretion. In future, the courts must refuse if the outcome is “highly likely” to have been no different—a significant change from “inevitable”. This is highly likely to mean that unlawful and, I have to say, even dishonest decisions will go unchecked and public bodies will get off scot free. For some very vulnerable people in our communities, this is really serious. It flies in the face of what the Minister said at Second Reading: that Part 4 will ensure that judicial review,

“continues as a check on the Executive”.—[Official Report, 30/6/14; col. 1542.]

Well, this is a very strange check. More importantly, it could give rise to a breach of Article 6(1) of the European Convention on Human Rights in fettering access to the courts. It is also particularly relevant to the public sector equality duty, which requires that due process is followed. The Government may think that that does not matter. It does, crucially, as the Court of Appeal recognised in the Bracking case. The decision to close the Independent Living Fund was held unlawful because it was taken without due regard to the public sector equality duty.

I asked the Minister at Second Reading how judges would be able to weigh up “highly likely” without speculating. Surely, judges are supposed to decide on the facts— that is what I was always told—not second-guess what might have been. I have not heard from the Minister—he was not able to answer me at the time—and I really hope that he will tell me today.

The Minister has said that the aim of Part 4 is to limit the potential for abuse, such as delay. That puzzles me. If the court has to inquire into things that it would not otherwise consider until the judicial review itself, how will that reduce delay? It can only lengthen the case and increase the costs. I agree with the Joint Committee that Clause 64 should not stand part of the Bill but, if it remains, I will certainly support these amendments to reflect the current approach of the courts.

[Lord Davies of Stamford]

My Lords, luckily, and happily, I think there is little danger of this debate becoming a closed shop of the legal profession. It is very important that that is the case, because in my view Part 4 of the Bill, which represents an attempt by the Government to—I think one can only say—clip very severely the wings of the whole judicial review system, is something that goes to the heart of the way that we are governed, something that is of interest to every citizen as much as it is to professional lawyers. It raises questions such as: do we live in a state in which the Government are subject to the law? Is that a purely theoretical state of affairs or a practical reality? Is there some way of enforcing that principle? Is it possible for the citizen to get an authoritative view of what the law is? He or she is supposed and indeed compelled to obey it, but is it possible to get a judicial decision as to what the law is in a particular circumstance? Do the three powers of government operate as they should? Do they act as a balance on each other, or is one of those three powers oppressive to another? These are foundational questions and I think that we have been quite right to spend a bit of time this afternoon addressing some of these basic principles as well as the Bill.

However, I will now say a few words about the Bill. We heard two very distinguished speeches from the noble and learned Lord, Lord Brown, and the noble Lord, Lord Marks, setting out some of the central principles that lie behind this debate. I agree with much of what was said by both of them. On the central controversy between the two as to whether Parliament should legislate in the area of judicial review, I side entirely with the noble Lord, Lord Marks. It is, in my view, Parliament’s essential job to review and keep under review the constitution, and to make changes to it when it decides that that needs to happen. We created the Supreme Court recently, for example, to keep under review the operation of our legal system and the evolution of jurisprudence, to correct a tendency that we do not approve of by using statutory law, and so forth. These seem to be essential roles of Parliament and we should not shy away from that.

--- Later in debate ---

[Baroness Anelay of St Johns (Con)]

My Lords, I think that the noble Baroness, Lady Campbell of Surbiton, might wish to speak.

[Baroness Campbell of Surbiton]

My Lords, I wish to add my voice to that of the noble Lord, Lord Beecham. Under these provisions, judicial review claimants will have to provide information about the financing of their claim before it can proceed. The court must take that into account and, if someone has given financial support, it must consider whether to make a costs order against them.

I believe that this will hit the poorest claimants the hardest. If they cannot get legal aid, they will need third-party support to bring a claim, whether that be a family, a friend, charities or lawyers who work pro bono. But if their supporters know that they could be liable for costs, these sources will dry up. In fact, the proposals will potentially have a devastating effect on the most vulnerable members of our society, who after all, are the poorest—those who stand to lose the most if access to judicial review is severely curtailed.

I would like to bring to your Lordships’ attention two ground-breaking cases that I believe would never have taken place should this measure come into force. One is the Supreme Court’s ruling that three vulnerable individuals had been unlawfully deprived of their liberty under the Mental Capacity Act. They were poor and had little support, but there was just enough from charities, friends and families to take their case to court, and the Supreme Court ruled accordingly.

The other case was the decision that a blanket ban on manual lifting and handling deprived two severely disabled sisters of family life. This was deemed to be unlawful because of this case. I remember that case very well. I was working as chair of the Social Care Institute for Excellence. I was particularly concerned about the local authority blanket ban on lifting and handling, which potentially meant that many disabled people would have to go into residential care because carers were no longer physically able to lift and manually handle them when they were unable to use a hoist. This case not only gave the sisters the liberty to stay at home with their families but also affected thousands of other disabled people, who could potentially have been deprived of their liberty.

I know that these two cases would not have taken place without the support of charities, families and friends. If people feel that they are liable to costs in any way, even if there is a slight threat, they will not proceed, and these cases would not be heard and many of us would be deprived of the liberties that are so vital to our access to justice.

[Baroness Anelay of St Johns]

My Lords, it is unusual for the Chief Whip to intervene at this moment, just before the Minister responds to this debate. I do so with prior agreement in the usual channels that this might be a convenient point for me to move formally, in a moment, that the House resume and that we take the Question for Short Debate in the name of the noble Baroness, Lady Whitaker. The procedure will then be that, as we return at the end of the QSD, I will make a short business statement in which I will explain why the Minister will then respond to this debate and we will then be able to proceed to the advertised business of the debate in the name of the noble Baroness, Lady Boothroyd.

I beg to move that the debate on Amendment 73F be adjourned.

Assisted Dying Bill [HL]

Baroness Campbell of Surbiton Excerpts

Friday 18th July 2014 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I have fought for autonomy the whole of my life. I have fought for that for myself and for others. I do not want this Bill.

First, I must declare a very important interest. This Bill is about me. I did not ask for it and I do not want it but it is about me nevertheless. Before anyone disputes this, imagine that it is already law and that I ask for assistance to die. Do your Lordships think that I would be refused? No; you can be sure that there would be doctors and lawyers willing to support my right to die. Sadly, many would put their energies into that rather than improving my situation or helping me to change my mind. The Bill offers no comfort to me. It frightens me because, in periods of greatest difficulty, I know that I might be tempted to use it. It only adds to the burdens and challenges which life holds for me.

However, it is not just about me. My story is echoed by the majority of disabled and terminally ill people in Britain today. Many of them are outside this House, protesting against the Bill. I urge your Lordships to go and talk to them. Many more will have written to your Lordships. Supporters of the Bill argue that there is a hard and fast distinction between terminal illness and disability. I can tell you absolutely that there is not. We, the folk this Bill claims to serve, know that. The Bill purports to offer choice—the option of premature death instead of pain, suffering and disempowerment—but it is a false choice. It is that of the burglar who offers to mug you instead. That is not choice. Pain, suffering and disempowerment are treatable—I have to believe that—and they should always be treated. My long experience of progressive deterioration has taught me that there is no situation that cannot be improved.

I have spent my life developing ways to prevent people in vulnerable situations feeling powerless and burdensome. They do get cajoled and do feel a burden, especially when they are at home with no one to come and assist them to go to the toilet and to have dignity. I have seen this transformation when people have been helped. Those whom society once saw as totally dependent have become active and valued human beings. I am afraid that assisted dying will bring back outdated beliefs that devalue disabled and terminally ill people, when we have tried so hard to get away from them. Small wonder then if some succumb to those beliefs and see premature death as the only answer. Small wonder if family, friends, doctors and others see it as their duty to support that goal. It appears easier, cheaper and quicker—and it is.

The Bill is motivated by fear and pity but as the greatest French novelist, Balzac, observed,

“pity is death to us—it makes our weakness weaker still”.

Death is seen as a release from pity, for both giver and receiver, but there are far better ways of responding. We must put our energy into providing the best support, be it medical, social, practical or emotional, to disabled people and terminally ill people. We are nowhere near there yet. Helping people to live with dignity and purpose must surely be our priority. Disabled people and terminally ill people do not deserve pity. They deserve so much better. The Bill has become a runaway train, and the more frightening because of that. Please let us pause and find ways to reflect further. The Bill is not the answer.