Terminally Ill Adults (End of Life) Bill (Tenth sitting)

Sarah Sackman Excerpts

Committee stage
Wednesday 12th February 2025 Public Bill Committees

[Rebecca Paul]

I absolutely agree that such clarity would be very useful. The hon. Member and I both want to ensure that undue influence is captured somewhere; I am less picky about where. As long as it gets covered somewhere in the Bill, that would be an improvement to the Bill, and I hope that everyone would really welcome that. I think everyone recognises the issue. I am not hearing that people are opposed to this; they recognise that there can be more subtle forms of coercion. If we can work together to find the best place for that to go in the Bill, I am very open to that.

[The Minister of State, Ministry of Justice (Sarah Sackman)]

It might help if I offer—with the usual caveat that of course the Government are neutral—the Government’s position with respect to what the hon. Lady has been discussing. It is important to point out that the terms “coercion” and “coercive behaviour” and “pressure” that are used on the face of the Bill appear in existing legislation without statutory definition. In other words, they are given their ordinary meaning and they operate effectively in that manner in the criminal law. The hon. Lady is absolutely right that clause 26, which we shall come to in due course, is a separate matter, but of course it will be important to review the Bill as a whole and to understand the interaction between the different provisions in clause 1, as we trace it through to the criminal offences.

It is the Government’s view that manipulative behaviour or undue influence—the terms that the hon. Lady is using—would come within the normal meaning as understood in case law by the judiciary of the terms “pressure” and “coercion”. In terms of the integrity of the statute book, there is a concern that by adding additional terms, we run the risk of creating confusion, because when it comes to the interpretation of those provisions, judges will be looking to understand and ascertain what Parliament meant by “undue influence” that was not currently covered by coercion. Given that those terms are commonly broadly interpreted, it is the Government’s view that the sorts of behaviours that the hon. Lady is describing—“undue influence”—would be covered by the terms used on the face of the Bill. For simplicity, given that our existing body of law interprets those provisions widely, and to ensure consistent application of the law in this context and other contexts where coercion arises, it is important from the Government’s point of view to retain the Bill’s current wording.

Terminally Ill Adults (End of Life) Bill (Eleventh sitting)

Sarah Sackman Excerpts

Committee stage
Wednesday 12th February 2025 Public Bill Committees

[The Chair]

Before I call Minister Sackman, I remind Members that “you” refers to me, not the person they are speaking to. Can we be very careful with the use of “you”?

[The Minister of State, Ministry of Justice (Sarah Sackman)]

I know that Members will be eager to engage, and have already engaged, in a robust discussion about the issue of safeguarding, and how best to protect and prevent individuals from being forced or coerced into seeking assistance to end their life. As my hon. Friend the Member for Aberafan Maesteg has said throughout the debate, I will not be offering a Government view on the merits of any proposed amendments tabled by Members. Instead, I will offer some observations on the legal and practical effects of the amendments, to assist Members in undertaking line-by-line scrutiny.

As a starting point, we have heard a series of concepts discussed in this debate, including manipulation, pressure, coercion, undue pressure and encouragement with coercive ends. There is a range of terms that some Members have used interchangeably, and fairly so. It is important to say that there is a consensus that all those things are unacceptable; the point, and the Government’s view, is that the current provision in clause 1(2)(b) would cover that behaviour with the currently used terminology “coerced or pressured”.

Amendments 23 to 33 set out to include consideration of whether a person has been unduly influenced, in addition to having been coerced or pressured by another person, in the determination of whether that person is accessing assisted dying voluntarily. As I have already indicated, the Government’s view is that the terms “coerced” and “pressured” would cover the term “unduly influenced” as it is understood. If the Bill is voted into law, the guidance and training for the healthcare professionals who would apply the tests would need to be developed to cover that sort of behaviour in this specific context.

Similarly, amendments 82 to 92 and new clause 5 seek to introduce an additional safeguarding requirement that a person has not been encouraged into undergoing the assisted dying process. It is important to contextualise the amendments, which would introduce this new safeguarding requirement into all the relevant clauses of the Bill where a doctor—or a court or panel, if that is what transpires—must already make an assessment as to whether the person has the relevant capacity, has a clear and settled wish, is making the declaration voluntarily and has not been coerced or pressured by any other person into making it.

I have listened to the debates about what encouragement may or may not mean in this context. As I understand it, new clause 5 states that the definition of encouragement is that which would constitute an offence under section 2 of the Suicide Act 1961. In reality, that Act does not specifically define encouragement in legislative terms, so there is a risk that the definition becomes somewhat circular. As I will come to in a moment, as with the terms “coercion” and “pressure”, the meaning given to “encouragement” by the courts, where it is not defined by Parliament, is its natural meaning.

I now turn to amendments 113 to 115 and 118 to 122. Let me deal first with amendments 113 to 115. As the Bill is currently drafted, registered practitioners who act as co-ordinating and independent doctors are required to establish that the person seeking assistance has not been coerced or pressured. People seeking assistance to end their own life are also required to confirm in the first and second declarations that they have not been coerced or pressured. The amendments seek to add an additional requirement to establish that the person seeking assistance to end their own life has not been manipulated by any other person into making the decision.

--- Later in debate ---

[Naz Shah]

Many of us on the Committee are first-timers. My understanding is that in a normal Government process we would have gone out to consultation. We are talking about coercion and undue influence, and undue influence in particular is not something that does not appear on the statute books in other legislation, as the Minister may recall I said earlier. We would normally go out and consult and speak to charities, particularly domestic violence charities.

As many Members have said throughout the last few days and this morning, we know that terminology changes. We did not previously have the vocabulary of coercion and the words that we have today. When was the last time, for any Bill—apart from in respect of Domestic Violence Act 2021 under the previous Government—that we actually went out to consult people? Given that there is no impact assessment, which we are so desperately missing and which is a huge chunk of this issue, I want to understand how we can be sure, and how the Government can come here and be absolutely sure, that this will work, given that this is a whole new concept.

This is not domestic violence, with which we have some familiarity. We had one Select Committee inquiry in 2015, and my understanding is that it did not produce anything conclusive either to support or not to support the concept of assisted dying. We have not had the debates to tease this out. Other Members may be much more familiar with these concepts, but will the Minister comment on that?

[Sarah Sackman]

To bring it back to the specific debate about the amendments, the terms “coercive” or “coerce” and “pressure” appear in the criminal law and have broad definitions. That is how they have been interpreted by the courts. Others have referred to section 76 of the Serious Crime Act 2015, which created an offence of controlling or coercive behaviour. In that context and the relevant Bill, Parliament chose not to make a specific legislative definition, but the way in which it has been interpreted, in accordance with its natural meaning, has vindicated the proposition that a broad meaning is given to those terms. For example, that offence could include coercive behaviour such as repeatedly putting somebody down, telling them they are worthless, seeking to control their daily routines or isolating them from friends and family to put pressure on them. As my hon. Friend says, we understand those sorts of behaviours in a much broader way in a changing society.

[Danny Kruger]

Will the Minister give way?

[Sarah Sackman]

I am going to make a little more progress; we will come back to that in a moment. It is really important that we have these concepts in other parts of criminal law and other parts of our legislation. I come back to the point that we run a risk, which runs counter to the intent that lies behind the amendments, if we add additional language into the Bill. I will develop that point and then take further interventions.

As we have seen, clause 1 includes the terms “pressured” and “coerced”. The ordinary meaning of the word “pressure” is the use of persuasion or intimidation to make someone do something. There are broad types of behaviour, many of which have been eloquently brought into this debate, that would come within that. The ordinary meaning of the word “coerce” is to persuade someone to do something against their best interests by using force or threats. That could be subtle or it could be very blatant, but the word “coerce” is understood in that way by our courts and in other areas of our legislation. One can readily see how an act of manipulation such as in the examples used earlier, or the exertion of undue influence—I think the term “unduly pressured” was used—would all fall within the terms “coerced” and “pressured”. That is the settled view of the Government.

There is a consensus that none of these things, including applying undue pressure, are desirable or acceptable in this or any other context, but there is a risk that adding terminology does not do what hon. Members intend, which is to create more safeguards. The risk is that by adding new words, those tasked with applying and interpreting legislation, if it comes to court, will assume there must be some specific reason for their inclusion. They will assume that the words must have some meaning distinct from the other words in the list—coercion and pressure—notwithstanding the fact that, on their natural meaning, the terms overlap and, in the Government’s view, are inclusive of those sorts of behaviours. That risks the effect of narrowing the interpretation of the words used rather than inviting our courts to give them their usual expansive meaning.

In turn, that risks casting doubt on the current interpretation of those words in existing statutes such as the Serious Crime Act, which created an offence for coercive and controlling behaviour, and limits any read-across on interpretations from previous decisions into the application that we are debating. In short, it may actually serve to limit, not to add, to the safeguards in the process. It may risk adding confusion and uncertainty where what is already provided for in clause 1, with the words “coercion” and “pressure”, are simple, readily understood, expansive definitions that would cover precisely the behaviours that I think the hon. Members who tabled the amendments are concerned about.

[Danny Kruger]

I think the Minister just suggested that if we were to amend the Bill, there would be some kind of unfortunate knock-on effect with other legislation, which would thereby be weakened. I hope the argument being made is not that we should leave this Bill weaker in order to protect other legislation. We need to get this right.

I have another suggestion, which I would be grateful if the Minister could elucidate a little more. The fact is that no official definitions of coercion or pressure that exist in statute either. The definition of coercion that she used—what case law has taught us coercion means—and the examples she gave of people essentially exerting coercive pressure on partners would, of course, be captured by the Bill currently but, as we have heard, there are circumstances that would not meet that threshold but that we all agree would be unacceptable. The only way to capture properly those examples of people being encouraged and unduly influenced into an assisted death is by making it clear that that is what doctors are required to look for.

I revert to the point I have made a number of times; I would be grateful for the Minister’s response to it. The Suicide Act, which the Bill amends, explicitly uses the term “encouragement” for what people should not be subject to, and pressure is a subset of encouragement. It is not the other way around. Encouragement is not captured in pressure; pressure is captured in encouragement. Why do we not acknowledge that encouragement is the correct catch-all term for all the sorts of undue influence we are trying to protect against?

[Sarah Sackman]

On the hon. Gentleman’s first point, there is no suggestion that we should somehow accept any weaker form of provision in this Bill to protect other parts of the law. Having said that, he would well expect me, as a Government Minister, to be concerned with the integrity of our statute book as a whole.

It is because the Government take a holistic view of how the criminal law and other areas of our law operate and define these concepts, and how they are read across the piece, that we make our contention in respect of these particular provisions, because the terms “coercion” and “pressure” are given their natural meaning and are expansive. In the Government’s settled view, they would be inclusive of the types of behaviour that are described in the amendments before us—namely manipulation, undue pressure and the sort of encouragement that I think, when he keeps coming back to it, the hon. Gentleman is referring to, which is not encouragement in a benign way as might exist between two perfectly supportive family members in a normal conversation, but the sort of encouragement that is intended to lead to coercive ends.

The hon. Gentleman says that pressure is a subset of encouragement; the Government’s view is that coercion and pressure would cover off the other behaviours that are described in the amendments. It is not necessary to include those additional concepts, because it risks sowing confusion that somehow they are not included in the concepts of coercion and pressure.

[Naz Shah]

I want to understand the Minister’s point about multiple words. We have the Digital Markets, Competition and Consumers Act 2024, referring to both coercion and pressure, and undue influence is also included. Those three terms are used in the same Act. Undue influence is also included in multiple additional statutes—over 10, including the Anatomy Act 1984, which is about people leaving their body to medicine for the purposes of tests and so on. Is the Minister saying that those are bad Acts, because they could confuse people? That is the test we are applying.

[Sarah Sackman]

I am certainly not saying that those are bad Acts, and I do not want anyone to quote me as saying that. We could in theory sit here and come up with a whole set of terms that would be descriptive of types of pressure and coercion. We have come up with a number of those, including “undue influence”, “manipulation” and “unduly pressured”. There are other types of behaviour that we might seek to describe. Indeed, if one refers to the Crown Prosecution Service’s guidance in respect of the offence in section 76 of the Serious Crime Act 2015, there are a whole load of descriptors of different types of behaviour. We could name and enumerate all those different types of behaviours, but, in the Government’s view, that is not the best way to create legislation that is workable.

It is the Government’s settled view that the words “coercion” and “pressure” cover off the types of behaviour that Members suggesting these amendments would wish to include. The risk is that such amendments create more confusion and shed more heat than light, if you like. Indeed, there is then the risk that the definition of coercion is narrower than it in fact is under our law as it is understood in our courts and in the body of common law and case law, which has been developed in construing those sorts of terms.

We are still on clause 1, and we have spoken a little about the interplay between clause 1 and later clauses, particularly clause 26, which engages the criminal offence as drafted in the Bill. I want to stress that while the procedural clauses 1, 7, 8 and 12 may use the same language as the criminal offences in clause 26, they are conceptually distinct, as others have noted. Although it is right that a court could be expected to construe legislation as a whole, case law in relation to one provision will not necessarily flow through directly to a later provision.

It may be helpful to illustrate that with the word “encouragement”, which has been raised. As we know, it is an offence to encourage or assist a person to commit suicide. As the hon. Member for Reigate pointed out earlier, it will continue to be so if the Bill is passed, outside of the specific exemption in the Bill. It is generally also an offence to encourage or assist a person to commit any other offence under the Serious Crime Act 2007. Specifically, it is an offence to do an act capable of encouraging or assisting suicide or another offence. The term “encouraged” is not defined in either statute. While it is true to say that section 2A(3) of the Suicide Act—which was added in 2009—clarified that doing an act that is capable of encouraging suicide includes a reference to a person doing so

“by threatening another person or otherwise putting pressure on another person”,

that was intended to be illustrative of the meaning of “encouraged” in that context; it does not serve as a general definition.

Within the Bill, it is important to keep in mind the difference between the procedural requirements—which is what we are discussing in this group—and the criminal offence requirements. Adding words to one provision because they are found in a criminal offence elsewhere risks, in the Government’s view, unintended consequences. Adding “encouragement” to the procedural clauses is perhaps an example of this.

Bereaved Parents: Birth Certificates

Sarah Sackman Excerpts

Tuesday 4th February 2025 Commons Chamber

[The Minister of State, Ministry of Justice (Sarah Sackman)]

I thank the hon. Member for South Devon (Caroline Voaden) for securing this debate on an important and emotive subject. I start by saying how sorry I am for the loss that she and her family suffered, and how much I admire her resilience in coming to this House to share her story. That takes a huge amount of courage.

The circumstances in which the hon. Lady and others have lost co-parents are heartbreaking indeed. The Government are determined to ensure that the justice system is better able to support children and families, and particularly mothers who have lost the father of their child.

The hon. Lady helpfully outlined the current process for registering a parent’s name on a birth certificate when that parent has passed away, but it is important to set out precisely how this works. Under section 55A of the Family Law Act 1986, in situations where a child is born to unmarried parents and the father is deceased prior to birth, a declaration of parentage must be issued by the court for paternity to be established. It is right that a fee is attached to this application, but it is important to say that there are mechanisms in place to support those who cannot afford the fee.

The help with fees scheme considers a range of factors, including an applicant’s income, their savings and whether they receive any benefits, so that the fee can be waived in certain circumstances. Once a declaration is issued, the birth can then be re-registered to include the father’s details or, to put it another way and as we have heard, to fill in that blank space.

To recognise the challenges that mothers face when seeking a declaration of parentage, a key intention of the provisions in family proceedings is to make the process as simple as possible in the most difficult of circumstances, while at the same time ensuring that the court has the means to establish parentage if one parent is deceased and is not, of course, able to convey their views themselves.

That process, while we have to emphasise simplicity and ease for those going through the toughest of circumstances, is an important one. It is important because in some cases the process can bear on significant financial implications for others, such as children from previous relationships, and can bear on issues such as nationality and others that touch on the best interests of the child. While ensuring the process is clear and simple to support bereaved parents, the courts must therefore have a process that instils confidence in the important details that a birth certificate contains.

[Jen Craft (Thurrock) (Lab)]

I want to add my congratulations to the hon. Member for South Devon (Caroline Voaden) on securing this incredibly important debate.

The Minister has spoken well on the process involved. If a couple are married when the father dies while the woman is pregnant, it is a relatively simple process to register that person as the father of the child. It is a much more complicated matter for people where the couple are not married. I suggest, and I hope my hon. Friend agrees, that legislation might not have kept pace with societal change and with the reality of how couples now choose to live when they plan families.

--- Later in debate ---

[Sarah Sackman]

My hon. Friend is right to reflect on the growing number of couples in this country who cohabit and for whom marriage is not something they have chosen. It is right, too, that in general the law keeps up, to reflect that sort of societal change. I will come in due course to discuss more widely what the Government are doing in that space. I return, however, to the essential point that while clarity, simplicity and affordability are important in the registration process, particularly to support bereaved parents, we must have a process that instils confidence in what the birth certificate contains.

I thank the hon. Member for South Devon for drawing attention to Widowed and Young’s campaign. As she rightly points out, it does some absolutely amazing work, particularly for those younger people who have tragically lost a spouse or life partner. I can reassure the hon. Member now that the Government take the matter incredibly seriously and we are working hard to improve the family justice system for children and families.

Widowed and Young advocates for a simplified court process. We know that delays in the court process add to the distress when someone is going through bereavement. That can have a significant impact on children and families. We are committed to improving timeliness and reducing the outstanding caseload in the family court. That is why we have set ambitious targets for reducing delays in 2024-25 and have focused on closing the longest-running cases, not least so that can free up court time to deal with precisely the sorts of processes to which the hon. Member draws attention.

To further support those who use the family court, we are committed to improving digital solutions to support families with exploring various options for resolving child arrangement disputes early and away from court whenever possible. That is an area where digital solutions can be brought to bear on the sorts of issues that have been raised today. The Ministry of Justice is working on testing and developing various digital innovations that aim to support users in the private family justice system to help those families find the right information at the right time for them to reach agreements where that is appropriate, and particularly in the sorts of processes and proceedings under focus, which in the vast majority of cases are entirely non-contentious.

Let me turn to the wider issue of cohabitation reform. The subject that the hon. Member for South Devon raises and that others have raised today speak to the broader issues for cohabiting couples in our society who, under existing law, have only limited financial protections compared with those who are married or in a civil partnership. I know that a number of colleagues across the House have written to my Department about this, and my noble friend Lord Ponsonby was pleased to attend a parliamentary roundtable to discuss it last November.

We know that the limited rights and protections available to cohabitants can affect the most vulnerable in our society who are often affected at the most difficult stages in life, such as when a partner dies, or at the point of separation. We know, too, that those limited rights and protections disproportionately affect women, including victims of domestic and economic abuse, as well as their children. With the number of cohabiting couples in the UK having more than doubled over the past 30 years, it is important, as others have said, that law reflects the society in which we now live. That indeed is why the Government set out in our manifesto a commitment to strengthen the rights and protections available to women in cohabiting couples. We will be setting out the next steps on this manifesto commitment—how we intend to implement it—as soon as possible.

The issue raised by the hon. Member for South Devon speaks directly to those challenges that sometimes face parents who are unmarried. I would like to thank her once again for securing this important debate and pay tribute to her bravery in coming forward to talk about it. I hope that this is the start of a conversation. I hope that she and I can discuss in more depth very soon the sorts of changes that might be necessary to better protect people in law, and I look forward to working with her to that end.

While I am on my feet, let me also pay tribute to my hon. Friend the Member for Birmingham Northfield (Laurence Turner) for the related issue that he raises and let me extend my personal condolences to the family involved. They have been through one of the worst things imaginable in my view. Certainly, processes of administration—of registration—should not be designed to exacerbate that. If he will write to me with that particular case, I would be happy to take a look at it, and I look forward to working with him on how we can address and mitigate the distress of parents of children who die in childbirth.

Once again, let me thank the hon. Member for South Devon for securing this important debate. I look forward to working with her on how we can ameliorate the situation for those for whom she is campaigning.

Question put and agreed to.

Terminally Ill Adults (End of Life) Bill (Seventh sitting)

Sarah Sackman Excerpts

Thursday 30th January 2025 Public Bill Committees

[Sarah Green]

Q To follow up on what you just said about legislative consent, in October of last year, the Senedd voted against Julie Morgan’s assisted dying motion. In your opinion, what implications does that have for the Bill and its progress?

Professor Lewis: A motion was put forward by Julie Morgan that was supported by three or four Members of the Senedd, which was broadly in support not of this specific Bill, but of the purpose of this Bill, and it was defeated, as you say, after a full debate on the Floor of the Senedd. Formally, legally and constitutionally, that is of no consequence, because it was not a legislative consent motion, and of course, as I said earlier, this Parliament is able to do what it likes. It could totally disregard that. Whether that would be a prudent or an appropriate thing to do, or even what one might describe as a constitutionally appropriate thing to do, is another matter.

I think it reinforces the point that there is a significance in making sure that scrutiny of the Bill has a Welsh focus. You might consider, for example, making different provision in Wales. How do you respect what was a democratic vote in the Senedd in Cardiff? Well, you might consider having different commencement provisions—I am not advocating this, it is just an example of what you might do. Commencement of the Bill in Wales might happen in a different way, on the assumption it was passed. You might put that in the hands of Welsh Ministers and the Senedd, just as an example.

[The Minister of State, Ministry of Justice (Sarah Sackman)]

Q To be clear, I am here as a Government Minister on this Committee, and the Government are entirely neutral on the Bill, so we do not take a position on the substance of the issues you have raised. Clearly, the draft Bill is intended to apply in both England and Wales, as you say, and your note is extremely helpful in highlighting some of those issues that will need to be worked out. As a Government, we will work closely with the Welsh Government to assess the legalities and practicalities of any potential changes to the law.

You have highlighted in particular the distinctions between health law, which is a devolved matter, and the law on suicide, which currently is not devolved. On the first page of your written evidence, you draw out clauses 32, 31, 33 and 34 in particular as issues that we should focus on in ironing out those legalities. Is there anything else you want to add to that that you think that we as a Government should focus on in our work consulting with the Senedd?

Professor Lewis: I think it is important that both Governments understand how the implementation of what will be a pretty radical change in the law will happen on the ground within the health service and among those who are responsible for delivering social services. I am thinking of issues such as adult safeguarding, which in Wales has its own specific law and is slightly different from the arrangements in England. There are those kinds of nuances between the two territories, and I think it would be prudent to focus on them.

I also think it is wise to bear in mind that Wales has certain statutory bodies whose interests might extend to the Bill. For example, there is the Older People’s Commissioner for Wales, in particular; there is the Future Generations Commissioner for Wales as well. I think it is important that there is some forum, some scope, for those people also to be involved in how this is shaped.

[Sarah Olney]

Q Dr Price, I am really glad that we are able to have the Royal College of Psychiatrists in front of us today; thank you for making the time. I want to ask you about paragraph 11 of your written evidence, which states that it is the royal college’s view that the Mental Capacity Act

“is not sufficient for the purposes of this Bill.”

Could you expand a little on that and, if you feel able, make some recommendations as to what you think could be sufficient?

Dr Price: Thank you. In answering this, I will also refer back to Professor Gareth Owen’s oral submission, thinking about the purpose that the Mental Capacity Act was drawn up for and the fact that decisions about the ending of life were not one of the originally designed functions of it. We would need to think carefully about how that would then translate into a decision that was specifically about the capacity to end one’s life.

We also need to think about how that would work in practice. When we are thinking about capacity assessments, it is usually related to a treatment or a choice about a treatment or about somebody’s life—for example, changing residence. Psychiatrists and doctors and actually lots of professionals are very used to those sorts of decisions and have gathered a lot of knowledge, expertise and experience around it. This particular decision is something that in this country we do not have knowledge, expertise and experience in, and we therefore need to think about how that would look in practice.

As for advice to the Committee about what that might look like, I think that we need to gather what evidence we have—it is actually very thin—from other jurisdictions that think about capacity as part of this process. I am thinking about my PhD: I visited Oregon and talked to practitioners who were directly involved in these sorts of assessments. They described the process, but they are not using the Mental Capacity Act as their framework. They described a very interpersonal process, which relied on a relationship with the patient, and the better a patient was known, the more a gut feeling-type assessment was used. We need to think here about whether that would be a sufficient conversation to have.

One of the things that I have thought quite a lot about is how we can really understand the workings of a mental capacity assessment, and one of the best ways we can do that is to see who is not permitted to access assisted suicide because of a lack of capacity and what that assessment showed. We do not have data because the assessments for people who were not permitted to do it are not published; we cannot read them, so if this becomes legislation, one of the suggestions that I would have—it is supported by the Royal College of Psychiatrists—is to, with patients’ consent, record capacity assessments to see whether they meet the standard that is necessary. I think it is important to set out the standard necessary and the components needed to be confident about a mental capacity assessment. That will help with standards, but will also help with training, because this is new territory for psychiatry, for medicine, and to be able to think about consistency and reliability, training needs to actually see a transparency in capacity assessments.

--- Later in debate ---

[Daniel Francis]

On a point of order, Mrs Harris. Yesterday, we heard evidence about the impact of the Bill on different groups with protected characteristics, including age, disability, race and sexual orientation. We heard from the EHRC, an arm’s length body of the Government, that it strongly recommends that a full impact assessment, a human rights assessment and a delegated powers memorandum be undertaken before the Committee begins line-by-line scrutiny.

We have also heard from witnesses about the impact that the Bill will have on disabled people, from Disability Rights UK and others, on black and minority ethnic people, from Dr Jamilla Hussain, from LGBT people, from Baroness Falkner, and on those from a low-income background, from Sam Royston of Marie Curie. We heard from Dr Sarah Cox and Dr Jamilla Hussain that evidence from their work shows that this Bill has a higher probability of pushing minority groups further away from seeking healthcare, while inequality pre-exists. As observed through the pandemic and from available data, minority groups do not always trust that their interests will be best represented in institutions that would enable the facilitation of someone’s death, should this Bill become law.

I therefore believe that on the basis of that advice, so as not to inadvertently widen health inequalities through Bill, it is essential to have health impact assessments. I appreciate that an equality impact assessment will be produced for Report stage, it will not be available for detailed line-by-line scrutiny. When we agreed the timetable for line-by-line scrutiny last Tuesday, we were not aware that this assessment would be produced, given it was first reported to the House during the money resolution last Wednesday. There is a risk that there will be a bigger impact on people with protected characteristics, and this will not be understood fully until the Government have produced the equality impact assessment. As things stand, that means that we will move into line-by-line scrutiny of the Bill on 11 February without a full understanding from the assessment of the impact of the Bill.

I am therefore minded to request a short Adjournment of the Committee so that, as advised, we can receive the assessments before we progress to line-by-line scrutiny. Please will you advise me, Mrs Harris, how I could secure such a motion to adjourn the Committee until we are in receipt of the evidence, as advised by the witnesses yesterday?

[Sarah Sackman]

Further to that point of order, Mrs Harris. I want to clarify the Government’s position. As the Committee knows, the Government are neutral on the Bill, but once the Committee has concluded its work and prior to Report, we are committed to publishing the ECHR memorandum, a delegated powers memorandum, the economic impact assessment that was committed to during the money resolution debate, and an assessment of the equalities impact of the Bill. In terms of the timing, it is necessary that the impacts that are assessed be of the Bill as it is brought forward. If the Bill is liable to change via amendments proposed by members of this Committee, it is important that we know what it is that we are assessing the impact of. That is why the proposed timing is to publish the impact assessment at that stage. The point is that before Members of the House come to a vote on Report and Third Reading, they will all have before them the impact assessment in respect of equalities and all those other aspects of the Bill.

[Danny Kruger]

On a point of order, Mrs Harris.

Terminally Ill Adults (End of Life) Bill (Seventh sitting)

Sarah Sackman Excerpts

Committee stage
Thursday 30th January 2025 Public Bill Committees

[Sarah Green]

Q To follow up on what you just said about legislative consent, in October of last year, the Senedd voted against Julie Morgan’s assisted dying motion. In your opinion, what implications does that have for the Bill and its progress?

Professor Lewis: A motion was put forward by Julie Morgan that was supported by three or four Members of the Senedd, which was broadly in support not of this specific Bill, but of the purpose of this Bill, and it was defeated, as you say, after a full debate on the Floor of the Senedd. Formally, legally and constitutionally, that is of no consequence, because it was not a legislative consent motion, and of course, as I said earlier, this Parliament is able to do what it likes. It could totally disregard that. Whether that would be a prudent or an appropriate thing to do, or even what one might describe as a constitutionally appropriate thing to do, is another matter.

I think it reinforces the point that there is a significance in making sure that scrutiny of the Bill has a Welsh focus. You might consider, for example, making different provision in Wales. How do you respect what was a democratic vote in the Senedd in Cardiff? Well, you might consider having different commencement provisions—I am not advocating this, it is just an example of what you might do. Commencement of the Bill in Wales might happen in a different way, on the assumption it was passed. You might put that in the hands of Welsh Ministers and the Senedd, just as an example.

[The Minister of State, Ministry of Justice (Sarah Sackman)]

Q To be clear, I am here as a Government Minister on this Committee, and the Government are entirely neutral on the Bill, so we do not take a position on the substance of the issues you have raised. Clearly, the draft Bill is intended to apply in both England and Wales, as you say, and your note is extremely helpful in highlighting some of those issues that will need to be worked out. As a Government, we will work closely with the Welsh Government to assess the legalities and practicalities of any potential changes to the law.

You have highlighted in particular the distinctions between health law, which is a devolved matter, and the law on suicide, which currently is not devolved. On the first page of your written evidence, you draw out clauses 32, 31, 33 and 34 in particular as issues that we should focus on in ironing out those legalities. Is there anything else you want to add to that that you think that we as a Government should focus on in our work consulting with the Senedd?

Professor Lewis: I think it is important that both Governments understand how the implementation of what will be a pretty radical change in the law will happen on the ground within the health service and among those who are responsible for delivering social services. I am thinking of issues such as adult safeguarding, which in Wales has its own specific law and is slightly different from the arrangements in England. There are those kinds of nuances between the two territories, and I think it would be prudent to focus on them.

I also think it is wise to bear in mind that Wales has certain statutory bodies whose interests might extend to the Bill. For example, there is the Older People’s Commissioner for Wales, in particular; there is the Future Generations Commissioner for Wales as well. I think it is important that there is some forum, some scope, for those people also to be involved in how this is shaped.

[Sarah Olney]

Q Dr Price, I am really glad that we are able to have the Royal College of Psychiatrists in front of us today; thank you for making the time. I want to ask you about paragraph 11 of your written evidence, which states that it is the royal college’s view that the Mental Capacity Act

“is not sufficient for the purposes of this Bill.”

Could you expand a little on that and, if you feel able, make some recommendations as to what you think could be sufficient?

Dr Price: Thank you. In answering this, I will also refer back to Professor Gareth Owen’s oral submission, thinking about the purpose that the Mental Capacity Act was drawn up for and the fact that decisions about the ending of life were not one of the originally designed functions of it. We would need to think carefully about how that would then translate into a decision that was specifically about the capacity to end one’s life.

We also need to think about how that would work in practice. When we are thinking about capacity assessments, it is usually related to a treatment or a choice about a treatment or about somebody’s life—for example, changing residence. Psychiatrists and doctors and actually lots of professionals are very used to those sorts of decisions and have gathered a lot of knowledge, expertise and experience around it. This particular decision is something that in this country we do not have knowledge, expertise and experience in, and we therefore need to think about how that would look in practice.

As for advice to the Committee about what that might look like, I think that we need to gather what evidence we have—it is actually very thin—from other jurisdictions that think about capacity as part of this process. I am thinking about my PhD: I visited Oregon and talked to practitioners who were directly involved in these sorts of assessments. They described the process, but they are not using the Mental Capacity Act as their framework. They described a very interpersonal process, which relied on a relationship with the patient, and the better a patient was known, the more a gut feeling-type assessment was used. We need to think here about whether that would be a sufficient conversation to have.

One of the things that I have thought quite a lot about is how we can really understand the workings of a mental capacity assessment, and one of the best ways we can do that is to see who is not permitted to access assisted suicide because of a lack of capacity and what that assessment showed. We do not have data because the assessments for people who were not permitted to do it are not published; we cannot read them, so if this becomes legislation, one of the suggestions that I would have—it is supported by the Royal College of Psychiatrists—is to, with patients’ consent, record capacity assessments to see whether they meet the standard that is necessary. I think it is important to set out the standard necessary and the components needed to be confident about a mental capacity assessment. That will help with standards, but will also help with training, because this is new territory for psychiatry, for medicine, and to be able to think about consistency and reliability, training needs to actually see a transparency in capacity assessments.

--- Later in debate ---

[Daniel Francis]

On a point of order, Mrs Harris. Yesterday, we heard evidence about the impact of the Bill on different groups with protected characteristics, including age, disability, race and sexual orientation. We heard from the EHRC, an arm’s length body of the Government, that it strongly recommends that a full impact assessment, a human rights assessment and a delegated powers memorandum be undertaken before the Committee begins line-by-line scrutiny.

We have also heard from witnesses about the impact that the Bill will have on disabled people, from Disability Rights UK and others, on black and minority ethnic people, from Dr Jamilla Hussain, from LGBT people, from Baroness Falkner, and on those from a low-income background, from Sam Royston of Marie Curie. We heard from Dr Sarah Cox and Dr Jamilla Hussain that evidence from their work shows that this Bill has a higher probability of pushing minority groups further away from seeking healthcare, while inequality pre-exists. As observed through the pandemic and from available data, minority groups do not always trust that their interests will be best represented in institutions that would enable the facilitation of someone’s death, should this Bill become law.

I therefore believe that on the basis of that advice, so as not to inadvertently widen health inequalities through Bill, it is essential to have health impact assessments. I appreciate that an equality impact assessment will be produced for Report stage, it will not be available for detailed line-by-line scrutiny. When we agreed the timetable for line-by-line scrutiny last Tuesday, we were not aware that this assessment would be produced, given it was first reported to the House during the money resolution last Wednesday. There is a risk that there will be a bigger impact on people with protected characteristics, and this will not be understood fully until the Government have produced the equality impact assessment. As things stand, that means that we will move into line-by-line scrutiny of the Bill on 11 February without a full understanding from the assessment of the impact of the Bill.

I am therefore minded to request a short Adjournment of the Committee so that, as advised, we can receive the assessments before we progress to line-by-line scrutiny. Please will you advise me, Mrs Harris, how I could secure such a motion to adjourn the Committee until we are in receipt of the evidence, as advised by the witnesses yesterday?

[Sarah Sackman]

Further to that point of order, Mrs Harris. I want to clarify the Government’s position. As the Committee knows, the Government are neutral on the Bill, but once the Committee has concluded its work and prior to Report, we are committed to publishing the ECHR memorandum, a delegated powers memorandum, the economic impact assessment that was committed to during the money resolution debate, and an assessment of the equalities impact of the Bill. In terms of the timing, it is necessary that the impacts that are assessed be of the Bill as it is brought forward. If the Bill is liable to change via amendments proposed by members of this Committee, it is important that we know what it is that we are assessing the impact of. That is why the proposed timing is to publish the impact assessment at that stage. The point is that before Members of the House come to a vote on Report and Third Reading, they will all have before them the impact assessment in respect of equalities and all those other aspects of the Bill.

[Danny Kruger]

On a point of order, Mrs Harris.

Terminally Ill Adults (End of Life) Bill (Fifth sitting)

Sarah Sackman Excerpts

Committee stage
Wednesday 29th January 2025 Public Bill Committees

[Kit Malthouse]

Q I may be speaking out of turn, but the sentiment of the House generally seems to be that there should be a third layer of supervision over the process. There are other territories have that third layer of supervision, such as Spain and Australia. Have you examined any of those, and is there a model that you think might be effective?

Lord Sumption: I am aware of them. Basically, they fall into two categories. There are those, like Spain, that have a process whereby a tribunal deals with the matter in advance—and, in fact, in the case of Spain in arrears as well—and there are those like the Netherlands, where it is a retrospective process. I have heard it said that a retrospective process is of no use. I am not sure I agree with that. I think there is a case for having a retrospective process to ensure that the practitioners are doing what they are supposed to be doing and that any objectionable tendencies are stamped out at an early stage.

It seems to me that if you are going to have the opinion of two doctors, which is almost universal as a requirement in these cases, I do not think that it is necessary to have a third layer, and in some respects it is undesirable. I appreciate that the House must have concluded that it was in favour of it, but my own view is that I am not.

[The Minister of State, Ministry of Justice (Sarah Sackman)]

Q It may flow from what this third layer of a panel or court is doing, but what sort of information would be desirable for the panel to have before it in order to add a meaningful layer of scrutiny?

Lord Sumption: That is really the critical question when you ask yourself how useful this process is. Obviously, they will have the opinions of the two referee doctors—they will have their rather pro forma statements, and possibly statements they will make by way of expansion of those—but if they are going to add something of value in the way of safeguards, it seems to me that they have got to carry out an independent investigation of those same matters. That would involve getting, presumably, a third expert adviser and proactively seeking evidence about, for example, the patient’s state of mind. It seems to me that that is duplicative.

Obviously, there is no system that you cannot have a greater degree of assurance about, but I am struck by the fact that no other jurisdiction has felt it necessary to have a process as elaborate as this for the purpose of duplicating the expert views already required.

[Sarah Sackman]

Q Lord Sumption and Dr Graham, you will have seen that clauses 26 and 27 include criminal offences. Do you have any views on the operability of those criminal offences?

Dr Graham: My only contribution here can be that similar offences in other jurisdictions have been held to be perfectly compatible with European human rights law.

Lord Sumption: I have no problem about the criminal-isation of people who abuse or distort the system, which is what those two clauses envisage.

[Dr Marie Tidball (Penistone and Stocksbridge) (Lab)]

Q Dr Graham, thank you for your written evidence, which was very helpful and stated your view that the strength of the clauses in the Bill make it compatible with the European convention on human rights in relation to article 2 on the right to life and article 14 on freedom from discrimination. Can you explain why you hold that view? What has been the view of the European Court of Human Rights in relation to assisted dying laws in other signatory states?

Dr Graham: There are two main challenges to this legislation, and to legislation like it, in relation to the European convention. As you say, one relates to article 2 and one relates to article 14. The article 2 challenge can be dismissed fairly quickly, because we have authority from the European Court saying that

“the right to life enshrined under Article 2 could not be interpreted as per se prohibiting the conditional decriminalisation of euthanasia.”

As a matter of precedent, that is fairly clear.

The trickier argument comes with article 14, which is the anti-discrimination right. There is an argument that goes something like this—I hope that those who hold this view think I am giving it a good airing. By allowing some groups to access assisted suicide, but not other groups—in this Bill, allowing terminally ill adults who meet the criteria in the Bill but not non-terminally ill adults who do not meet those criteria—you are treating two different groups in different ways, and that is discriminatory. There is an argument that, because of that, the courts would find that the Bill is unlawful and needs to be expanded—that groups outside of the terminally ill that meet the criteria of the Bill need to be given access to assisted suicide. I think that argument does not work for a few reasons, chief among which is that in our jurisdiction treating different groups differently is not unlawful. Treating different groups differently without good justification is unlawful.

The question of justification, while it is for judges and the courts, is a question on which judges have deferred heavily to Parliament, especially in areas that involve difficult social, ethical or moral issues. If I may be forgiven for reading from a court’s judgment one more time, in the case of SC the Supreme Court said:

“The ordinary approach…gives appropriate weight to…the primary decision-maker”—

the primary decision maker being Parliament—

“a degree of weight which will normally be substantial in…matters raising sensitive moral or ethical issues.”

We can all agree that this Bill involves sensitive moral or ethical issues.

My point is that when it comes to justification, courts are very deferential to Parliament. Courts think that Parliament should be deciding whether treating two groups in different ways is justified or not. That is why, in my view, there is no real truck to the argument that article 14—the anti-discrimination right—will be operative and cause the Bill to be declared incompatible with the convention in any way. I hope that is an adequate summary of my view.

--- Later in debate ---

[The Minister for Care (Stephen Kinnock)]

Q I want to make a brief point of clarification, based on what both Baroness Falkner and Ms Hadi said. In the debate on the motion on the money resolution in Parliament last week, I stood at the Dispatch Box and confirmed that the Government will publish an impact assessment before Report stage. We are obviously working on that with officials.

I will also add as a point of clarification that both myself and my ministerial colleague are working with the sponsor of the Bill to provide assistance and advice, purely on the workability and operational aspects of the Bill, and impacts of the Bill, should it gain Royal Assent. It is important for the purposes of this discussion that everybody is on the same page on that point. The Government are absolutely remaining neutral on the principle of the Bill, but it is our job to ensure that any Bill that passes through Parliament is workable and implementable as and when it gains Royal Assent.

Baroness Falkner: Will there be a human rights compatibility assessment as well as a delegated powers memorandum? Those are the other things that Government-sponsored legislation would have contained.

[Sarah Sackman]

We can take that suggestion away. Thank you.

[Daniel Francis]

Q Ms Hadi, we heard evidence this morning that the majority of disabled people support the Bill. I would like to hear your comments on that. What analysis do you have on whether the majority of disabled people support the Bill? Baroness Falkner, based on what we have just heard, if we had had the equality impact assessment before oral evidence was sought and before line-by-line scrutiny, would you have supported the approach more?

Baroness Falkner: My answer will be very brief. Every additional piece of analysis is helpful, because there are gaps in the analysis. The problem is that because we have not had a consultation, and because the process of deliberation was not transparent—it never will be with a private Member’s Bill—there is a sense of not knowing quite enough as to the reasoning behind—

Terminally Ill Adults (End of Life) Bill (Third sitting)

Sarah Sackman Excerpts

Tuesday 28th January 2025 Public Bill Committees

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

Q I have a question for Alex Ruck Keene. I noticed the concerns in your evidence about presumption of capacity, and I know that you have written in the past about concerns over different disciplines having different definitions of capacity. Later on in your evidence, you also mention multidisciplinary consideration of circumstances in assessing eligibility. How might that multidisciplinary eligibility assessment alleviate some of your concerns in relation to capacity decisions?

Alex Ruck Keene: We have capacity, but we also have to make sure that it is settled, informed and voluntary, and that we do not have things like pressure or influence going on. It is important to make it clear that we are not just saying that this is about all the weight going on capacity. For instance, if you have social workers involved—if you have, say, palliative care social workers involved, assuming it is a palliative care situation—they are going to be far better informed about what options might be out there than a doctor, potentially, depending on the doctor. Social workers more generally might well have more expertise in picking up signs of coercion or influence than a doctor, but I do not necessarily want to get into, “Some disciplines are good at X” and “Some disciplines are good at Y”—I have come across brilliant examples and bad examples in both zones.

It is partly about multidisciplinariness and also about the fact that you have more than one person trying to talk it through. When I train, I always try to tell people that 85% of capacity assessments are not all that difficult —they are just made difficult because you do not have time or you are not listening—but 15% are more difficult. I think a lot of these will be in the 15% zone, and in that zone, the more people you can have thinking about it, so long as they have an agreed framework within which to think, the more reliable, transparent and accountable the outcome is going to be.

[The Minister of State, Ministry of Justice (Sarah Sackman)]

Q I want to pick up on your evidence, Sir Nicholas, in relation to the panel that we have just been discussing with Sir Max. I have three questions. First, what do you envisage the panel doing under your model? Will it be ensuring that a lawful process has been followed or doing something more than that?

Sir Nicholas Mostyn: The former.

[Sarah Sackman]

Q That is helpful. Secondly, what information do you think the panel will need in order to reach a determination on that question?

Sir Nicholas Mostyn: It will have the statements in schedules 1 to 4, signed by both doctors twice. This is where it gets slightly tricky. Is the panel expected to be a ferret and say, “This does not quite chime for me”? The Committee will have to consider how investigative the panel will be, or whether it will purely sit back, be passive and work on the material it has. Of course, under clause 12, it has to hear orally. That might get the alarm bells going, but I believe that the panel should be entitled to call for further evidence if it has concerns. As I say, I have been trying to find out why 10% of cases were rejected by the panel in Spain. There must have been some kind of procurement of further evidence by the panel in order to do that.

[Sarah Sackman]

Q I suppose my third question, then, is how do you envisage such a panel, if at all, interacting with the High Court—with, say, a final right of appeal to the High Court, similar to what is in the Bill?

Sir Nicholas Mostyn: Article 10 of the Spanish law gives an appeal on a point of law to their high court, so I would have the same, with an appeal on a point of law to the High Court, but only on a point of law.

Alex Ruck Keene: Either way—it would have to be either way. It could not just be against a decision not to approve, logically, because the current model is very odd in saying that you can only appeal one way to the High Court.

Sir Nicholas Mostyn: Yes. Spain gives either side the right to appeal, so I agree with that, but it is confined to a point of law.

Sir Max Hill: I would only add that I wonder whether that is the only route through, namely leaving open a judicial review appellate process, or whether, for example, as we imagine with a number of commissioner-led processes already in this jurisdiction, the panel—or frankly, I suspect, panels, which might sit regionally, chaired perhaps by the retired judiciary—would have an appellate route to a national body, which you could call a national commission, instead of a judicial-review route to the Court.

There are a large number of commissioners, some sitting under the Home Office and some sitting under the Ministry of Justice—in a sense, I was a commissioner when I was the independent reviewer of terrorism legislation—with closely defined powers. There are many others who sit in an enhanced regulatory position—highly qualified individuals. You could describe them as national commissioners, if that is an appropriate term, and they would have superintendence over regional panels, and the power to appoint retired judiciary, perhaps with the assistance of the Official Solicitor, to sit on those regional panels, and then to have an internal appellate mechanism.

Sir Nicholas Mostyn: You have to have an appeals process of some type, because otherwise there will be judicial review. If there is no appeal, there is judicial review—so you have to have an appeal of some type or there will be judicial review.

Sir Max Hill: Yes, I agree.

[Sarah Sackman]

Thank you.

[The Chair]

We have some Members who want to ask more questions; we have about six minutes or so. Jake Richards, you did have a possible question earlier on.

Terminally Ill Adults (End of Life) Bill (Third sitting)

Sarah Sackman Excerpts

Committee stage
Tuesday 28th January 2025 Public Bill Committees

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

Q I have a question for Alex Ruck Keene. I noticed the concerns in your evidence about presumption of capacity, and I know that you have written in the past about concerns over different disciplines having different definitions of capacity. Later on in your evidence, you also mention multidisciplinary consideration of circumstances in assessing eligibility. How might that multidisciplinary eligibility assessment alleviate some of your concerns in relation to capacity decisions?

Alex Ruck Keene: We have capacity, but we also have to make sure that it is settled, informed and voluntary, and that we do not have things like pressure or influence going on. It is important to make it clear that we are not just saying that this is about all the weight going on capacity. For instance, if you have social workers involved—if you have, say, palliative care social workers involved, assuming it is a palliative care situation—they are going to be far better informed about what options might be out there than a doctor, potentially, depending on the doctor. Social workers more generally might well have more expertise in picking up signs of coercion or influence than a doctor, but I do not necessarily want to get into, “Some disciplines are good at X” and “Some disciplines are good at Y”—I have come across brilliant examples and bad examples in both zones.

It is partly about multidisciplinariness and also about the fact that you have more than one person trying to talk it through. When I train, I always try to tell people that 85% of capacity assessments are not all that difficult —they are just made difficult because you do not have time or you are not listening—but 15% are more difficult. I think a lot of these will be in the 15% zone, and in that zone, the more people you can have thinking about it, so long as they have an agreed framework within which to think, the more reliable, transparent and accountable the outcome is going to be.

[The Minister of State, Ministry of Justice (Sarah Sackman)]

Q I want to pick up on your evidence, Sir Nicholas, in relation to the panel that we have just been discussing with Sir Max. I have three questions. First, what do you envisage the panel doing under your model? Will it be ensuring that a lawful process has been followed or doing something more than that?

Sir Nicholas Mostyn: The former.

[Sarah Sackman]

Q That is helpful. Secondly, what information do you think the panel will need in order to reach a determination on that question?

Sir Nicholas Mostyn: It will have the statements in schedules 1 to 4, signed by both doctors twice. This is where it gets slightly tricky. Is the panel expected to be a ferret and say, “This does not quite chime for me”? The Committee will have to consider how investigative the panel will be, or whether it will purely sit back, be passive and work on the material it has. Of course, under clause 12, it has to hear orally. That might get the alarm bells going, but I believe that the panel should be entitled to call for further evidence if it has concerns. As I say, I have been trying to find out why 10% of cases were rejected by the panel in Spain. There must have been some kind of procurement of further evidence by the panel in order to do that.

[Sarah Sackman]

Q I suppose my third question, then, is how do you envisage such a panel, if at all, interacting with the High Court—with, say, a final right of appeal to the High Court, similar to what is in the Bill?

Sir Nicholas Mostyn: Article 10 of the Spanish law gives an appeal on a point of law to their high court, so I would have the same, with an appeal on a point of law to the High Court, but only on a point of law.

Alex Ruck Keene: Either way—it would have to be either way. It could not just be against a decision not to approve, logically, because the current model is very odd in saying that you can only appeal one way to the High Court.

Sir Nicholas Mostyn: Yes. Spain gives either side the right to appeal, so I agree with that, but it is confined to a point of law.

Sir Max Hill: I would only add that I wonder whether that is the only route through, namely leaving open a judicial review appellate process, or whether, for example, as we imagine with a number of commissioner-led processes already in this jurisdiction, the panel—or frankly, I suspect, panels, which might sit regionally, chaired perhaps by the retired judiciary—would have an appellate route to a national body, which you could call a national commission, instead of a judicial-review route to the Court.

There are a large number of commissioners, some sitting under the Home Office and some sitting under the Ministry of Justice—in a sense, I was a commissioner when I was the independent reviewer of terrorism legislation—with closely defined powers. There are many others who sit in an enhanced regulatory position—highly qualified individuals. You could describe them as national commissioners, if that is an appropriate term, and they would have superintendence over regional panels, and the power to appoint retired judiciary, perhaps with the assistance of the Official Solicitor, to sit on those regional panels, and then to have an internal appellate mechanism.

Sir Nicholas Mostyn: You have to have an appeals process of some type, because otherwise there will be judicial review. If there is no appeal, there is judicial review—so you have to have an appeal of some type or there will be judicial review.

Sir Max Hill: Yes, I agree.

[Sarah Sackman]

Thank you.

[The Chair]

We have some Members who want to ask more questions; we have about six minutes or so. Jake Richards, you did have a possible question earlier on.

Oral Answers to Questions

Sarah Sackman Excerpts

Tuesday 28th January 2025 Commons Chamber

[Anna Sabine (Frome and East Somerset) (LD)]

9. What steps she is taking to support survivors of domestic abuse and violence against women through the criminal justice system.

[The Minister of State, Ministry of Justice (Sarah Sackman)]

This Government are committed to supporting victims and survivors of violence against women and girls. These are abhorrent crimes. We are therefore funding the rape and sexual abuse support fund to the tune of £26 million, as well as funding independent domestic and sexual violence advocates. We are also strengthening the powers of the Victims’ Commissioner to improve accountability where those victims’ needs are not being met.

[Anna Sabine]

A constituent of mine from Somerset was seriously sexually assaulted in another county more than two years ago. Despite reporting the assault in 2022, she has been given a court date in December 2025. She told me that the legal process, involving both the courts and the relevant police service, has been more traumatising than the incident itself. What better support can we offer women who find themselves stuck in these processes for such lengths of time?

[Sarah Sackman]

I am terribly sorry to hear about this case. We know that such cases are not isolated, which is why this Government are bearing down on the Crown court backlog; we are increasing the number of Crown court sitting days and increasing magistrates’ sentencing powers to free up capacity in the Crown court, so that we can get swifter justice for victims. We are also investing in the victim transformation programme, through the Crown Prosecution Service, to provide precisely the kind of support that would benefit the hon. Lady’s constituent, keep her engaged in the process, and bring those trial dates forward.

[Chris Webb (Blackpool South) (Lab)]

It has been revealed that just 4% of rape and sexual offences reported to Lancashire police in the past year resulted in a charge or summons. What steps will the Ministry take to restore confidence in the criminal justice system for my constituents?

[Sarah Sackman]

My hon. Friend will know that this Government have a landmark ambition to halve violence against women and girls, and the criminal justice system has an important part to play in that. While setting that priority, whether it is for the CPS or our police, we want to drive charging decisions and drive up the conviction rate. Providing swifter justice for victims is going to require once-in-a-generation reform to bring down the Crown court backlog.

[Mr Speaker]

I call the Liberal Democrat spokesperson.

[Josh Babarinde (Eastbourne) (LD)]

In a recent written parliamentary question, I asked the Government how many domestic abusers there are in prison and what their reoffending rate is. Under the system this Government inherited from the Conservatives, they said that

“It is not possible to robustly calculate the number”.

That is shocking, and is in part because there is no specific offence of domestic abuse in the law to properly reflect and recognise these crimes. My Domestic Abuse (Aggravated Offences) Bill would correct that loophole. When will the Secretary of State honour the commitment she made on “Good Morning Britain” to meet me to discuss my Bill and how we can better protect victims and survivors?

[Sarah Sackman]

Tackling domestic abuse is a priority for this Government. The Domestic Abuse Act 2021 sets out a broad statutory definition of domestic abuse, which is improving our understanding of the wide range of behaviours that can constitute this abuse. While not constituting a stand-alone offence, domestic abuse is considered an aggravating factor routinely throughout our criminal justice system, and rightly so. That is the reason why that data is not collected, and that is the position we will maintain.

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

11. What steps she is taking to improve prison conditions.

--- Later in debate ---

[Lisa Smart (Hazel Grove) (LD)]

17. What steps she is taking to reduce processing times for deputyship applications by the Court of Protection.

[The Minister of State, Ministry of Justice (Sarah Sackman)]

Applications for deputyship to the Court of Protection play a vital role when people need to be able to make decisions for loved ones who lack capacity. It is important to support those people through prompt and efficient processes. His Majesty’s Courts and Tribunals Service has been implementing an improvement plan, driving down waiting times by recruiting more staff, enhancing judicial capacity, digitising application forms, and implementing a new case management system.

[Lisa Smart]

One of my constituents has contacted me to ask why he has been waiting nine long months for a decision from the Court of Protection on his deputyship application. He needs to secure the deputyship in order to make crucial decisions for a vulnerable loved one. Another constituent, in a similar position, waited for two months without any acknowledgement that his application was being looked into. Their experiences are not unique; solicitors and judges alike acknowledge the systemic delays plaguing the system. Does the Minister agree that such long delays in processing times are unacceptable, and what does she think is acceptable?

[Sarah Sackman]

I agree with the hon. Lady that such delays are not acceptable, and I am sorry to hear of the distress that this will have caused. It is right that we continue to invest in our improvement plan and continue to see progress with digitisation. Digitising the application forms is a first step, but we want to see end-to-end digitisation, which we know is resulting in decent progress and has sped up those times over recent months. There is more to do, and we shall do it.

[Rosie Duffield (Canterbury) (Ind)]

21. What steps her Department is taking through the criminal justice system to help tackle violence against women and girls.

[The Minister of State, Ministry of Justice (Sarah Sackman)]

As I have said, the Government are committed to halving violence against women and girls within a decade. It is an important ambition, and the criminal justice system has a vital role to play in it. In November, we launched a pilot promoting domestic abuse protection orders in selected areas, and we have ambitions to roll that out further. We will also introduce independent legal advisers for adult rape victims, ensuring that victims have the legal support that they need and deserve.

[Rosie Duffield]

Last week, the Domestic Abuse Commissioner found that just 5% of reported domestic abuse results in a conviction. Does the Minister share my concerns that lengthy investigations into non-crime hate incidents are potentially diverting vital resources from the criminal justice system and from prosecuting actual violence against women and girls?

[Sarah Sackman]

The hon. Member is right to remark on the low charging and conviction rates for domestic abuse. We have an ambition to drive those up. That is why we are putting more funding and more prioritisation into this area and calling on our agencies, whether it is the police or the Crown Prosecution Service, to really focus on it, because right now we are not doing enough for women and girls.

[Alistair Strathern (Hitchin) (Lab)]

The tragic reality for many women who suffer domestic abuse and then have to go through family court proceedings on top of it is that the presumption of parental contact provides another opportunity for perpetrators of domestic abuse to prolong it. The Government are rightly reviewing this. Will Ministers ensure that we make the most of this opportunity to better protect women who suffer domestic abuse through the family court system?

[Sarah Sackman]

My hon. Friend is right to make that point. Our family courts should never become sites of retraumatisation for victims of domestic abuse. We are reviewing the presumption, and when we are ready, we will publish the findings and our policy response to that review.

[Charlotte Cane (Ely and East Cambridgeshire) (LD)]

T1. If she will make a statement on her departmental responsibilities.

--- Later in debate ---

[Lloyd Hatton (South Dorset) (Lab)]

T7. Today we learned not only that Yevgeny Prigozhin, a sanctioned warlord, used frozen funds to make legal threats to silence a British journalist, but that the enablers of this textbook example of lawfare have since gone unpunished, with the Solicitors Regulation Authority ruling that Prigozhin’s lawyers “broke no rules”. That inaction, in the face of such clear-cut wrongdoing, shows that our current framework is inadequate. Can the Minister outline what steps the Government are taking to create a tough deterrent against harmful lawfare tactics, particularly when they are deployed by insidious individuals like Prigozhin?

[The Minister of State, Ministry of Justice (Sarah Sackman)]

I thank my hon. Friend for his question, and for the campaigning work that he is doing in this area. Journalism is the lifeblood of democracy, and strategic lawsuits against public participation represent an abuse of the legal system; they are used by those with deep pockets to harass and silence journalism. Such behaviour is intolerable. My focus, and the focus of this Government, will be on the implementation of the Economic Crime and Corporate Transparency Act 2023, which introduced an early dismissal mechanism and cost protection for SLAPP defendants.

[Richard Tice (Boston and Skegness) (Reform)]

T3. Last September, the Secretary of State confirmed that foreign national offenders blocking up our jails were being removed and deported. Will she update the House on how many have been removed and deported, and does she agree that the fastest way to free up capacity in our prisons is to remove the vast majority of them?

[Andrew Cooper (Mid Cheshire) (Lab)]

Humanist marriage has been legal in Scotland for 20 years but continues to wait to be legalised in England and Wales. The Law Commission made recommendations two years ago on clarifying the law, but when asked to set out a timetable for action, the Minister in the other place could only respond, “in the fullness of time.”—[Official Report, House of Lords, 2 December 2024; Vol. 841, c. 910.]

Can the Minister set out the timetable or, alternatively, say when the Government will make an order to end the long wait for humanist marriage?

[Sarah Sackman]

I understand that humanists have been campaigning for legally binding humanist weddings. The Government are committed to strengthening the rights and protections available, particularly for women in cohabiting couples. We will look at the Law Commission’s work and publish our response in due course.

[Richard Foord (Honiton and Sidmouth) (LD)]

T5. Gambling with Lives is a charity that supports families who have been bereaved by gambling-related suicide. Jo from Cullompton lost her son Daniel to gambling suicide, and speaks powerfully about it. What is the Minister doing to ensure that accurate data is recorded for each death linked to gambling?

[Sarah Sackman]

May I express how sorry I am to hear of the case of the hon. Gentleman’s constituent? I am happy to write to him—he asks quite a specific question—but it is important that we provide support to all sorts of victims. That is why we have the victims code, which strengthens the power of the Victims’ Commissioner, but I will write to the hon. Gentleman on that specific matter.

[Jake Richards (Rother Valley) (Lab)]

Last week, the Court of Appeal overturned a first-instance decision regarding the anonymity of a judge who presided over the tragic Sara Sharif case in the family courts. I do not expect the Minister to comment on individual cases, and it is certainly not about that individual judge, but will the Government use this opportunity to reaffirm our commitment to open justice and press freedom?

[Sarah Sackman]

As my hon. Friend rightly says, I cannot comment on that specific case, but we adhere to the principle of open justice and transparency in our legal system. That is why we have the publication of sentencing remarks and transcripts, and the broadcasting of many of our hearings, so that the public can see exactly how justice in this country is administered.

[Katie Lam (Weald of Kent) (Con)]

T6. We know that the Attorney General has recused himself from advising the Government, but he will not tell us what for, and he still refuses to be transparent about potential payments by former clients. Does the Secretary of State for Justice really not believe that the public have a right to know?

--- Later in debate ---

[Andy Slaughter (Hammersmith and Chiswick) (Lab)]

We have just witnessed the chair of the Criminal Cases Review Commission being prised out of her job, six months after the Secretary of State described her as

“unable to fulfil her duties”.

When will a new chair be appointed, and will this be accompanied by a wider review of the CCRC, to restore confidence in that damaged organisation?

[Sarah Sackman]

My hon. Friend is absolutely right to say that we need to restore confidence in the CCRC. That is why we are taking the decision not only to appoint an interim chair to steady the ship but, more importantly, to implement the recommendations of the Henley review so that we can restore confidence in this important institution, particularly in the light of the appalling miscarriage of justice in the case of Andrew Malkinson.

[Andrew Rosindell (Romford) (Con)]

T8. With an ever-increasing prison population and monumental delays being experienced in the courts and throughout the justice system, what steps is the Secretary of State taking to address the significant delays that arise from the period of time required to download and analyse digital material?

--- Later in debate ---

[Mr Will Forster (Woking) (LD)]

I know that the Justice Secretary is aware of the tragic case of my constituent Sara Sharif. Will she consider reforming family courts and ending the presumption in favour of parental contact despite the fact that there were safeguarding concerns?

[Sarah Sackman]

That case of that little girl, Sara Sharif, is one of the most tragic of recent times, and I know that that view is shared right across the House. That is why a safeguarding review is under way to look at all the agencies that were involved and should have been protecting that little girl from those who ended up killing her. We are looking at the presumption: there is a review, and we will consider the findings of that review and publish our response in due course.

[Lisa Smart (Hazel Grove) (LD)]

My constituent, who is a British citizen and the mother of two young children, faces the prospect of being forced to return to Poland to accompany those children under the Hague convention on the civil aspects of international child abduction, having fled escalating domestic abuse. If she does, her inability to speak the language or work will leave her entirely dependent on her abuser, even though he is barred from contacting her. Will the Minister work with me to ensure that domestic abuse is explicitly recognised as a valid defence against return orders of this type?

[Sarah Sackman]

I thank the hon. Lady for her question, and I invite her to write to me about that specific case, which sounds like it throws up a very difficult set of factual circumstances that I would like the opportunity to consider.

Infrastructure Planning and Judicial Review Reform

Sarah Sackman Excerpts

Thursday 23rd January 2025 Written Statements

[The Minister of State, Ministry of Justice (Sarah Sackman)]

My noble Friend, the Under-Secretary of State for Justice (Lord Ponsonby of Shulbrede), has today made the following statement:

My hon. Friend the Minister of State for Housing and Planning (Matthew Pennycook MP) and I are pleased to announce changes to the statutory judicial review process which will help to streamline and speed up infrastructure planning cases.

The delivery of major infrastructure projects is central to the Government’s mission to drive growth and unlock clean power. The largest and most complex of these projects currently require a development consent order (DCO) under the nationally significant infrastructure projects (NSIPs) regime established by the Planning Act 2008.

The number of legal challenges against DCOs has spiked in recent years, with 58% of decisions being subject to legal challenge. Delays to these major projects have serious implications, including holding back the delivery of essential benefits to the country and imposing considerable additional costs on development.

Despite 30 challenges being brought against major infrastructure projects, only four decisions to approve a project have been overturned by the courts. It comes as research shows that, on average, each legal challenge takes 1.4 years to reach a conclusion and the courts have spent over 10,000 working days handling these cases. Such cases impact upon the use of public money, with major road projects paying up to £121 million per scheme due to delays in legal proceedings. While it is fundamental that the public can challenge the lawfulness of Government decisions, there is scope for rebalancing the judicial review process to improve efficiency and reduce delays to NSIPs.

In October, we published Lord Banner’s independent review into the delays to NSIPs caused by legal challenges, which recognised that concerns with the process were well founded and outlined policy options for the Government to consider. Alongside publishing Lord Banner’s report, we launched a call for evidence which sought views on Lord Banner’s ideas. This closed on 30 December. We thank Lord Banner for his work in delivering the review and all those who engaged with the call for evidence.

The Government today confirm that the current permission stage for NSIP judicial reviews will be overhauled. Instead of the current position where a claimant has “three bites of the cherry”—a paper permission stage, an option to renew to an oral permission hearing and, if unsuccessful, a right of appeal to the Court of Appeal—the new process will be streamlined. Hopeless legal challenges will have just one attempt rather than three to challenge a development consent decision.

The current first attempt—known as the paper permission stage—will be scrapped. All applications for permission will go straight to an oral hearing resulting in less cost to the parties. Primary legislation will be changed so that where a judge in an oral hearing at the High Court deems the case totally without merit, it will not be possible to ask the Court of Appeal to reconsider. To ensure ongoing access to justice, a request to appeal second attempt will be allowed for all other cases.

In addition, we will: introduce non-mandatory case management conferences to NSIP judicial reviews; formally designate NSIP judicial reviews as significant planning court claims; and work with the judiciary to introduce target timescales for NSIP judicial reviews in the Court of Appeal and in the Supreme Court.

Taken together, these changes will ensure that the right to challenge NSIP decisions is protected, but with more proportionate and effective processes that give developers and investors greater confidence to get building.

The Government response to the call for evidence on this matter will be published in due course. It will set out how the measures announced today will be taken forward and will provide the Government’s views on the other options which we have considered as part of the call for evidence.

These changes will avoid needless delay, cost and uncertainty for major infrastructure projects, ensuring we can deliver the infrastructure this country needs to drive growth, cut energy bills over time, cut commuting times, and put more money in hard working people’s pockets. These reforms will drive progress of our plan for change by leveraging more investment, supporting more businesses, and getting Britain building.

[HCWS385]