The former president of the UK’s Supreme Court has warned MPs against removing judges from the process of signing off assisted dying cases, after the bill’s author proposed watering down their role.
Lady Brenda Hale, a prominent supporter of introducing assisted dying, said that local judges were ideally placed to decide on cases, while also ensuring that the legal system does not become overloaded.
On Monday the bill’s backer, Labour MP Kim Leadbeater, proposed replacing the need for a High Court judge to approve an assisted death with a panel of experts including a legal figure such as a KC, in a move that critics said weakens one of the key safeguards against harm and coercion.
Hale, in her first public comments since the publication of the bill that would bring in one of the most consequential social changes in decades, told the Financial Times that “it’s not a secret that I support the bill. The detail, of course, is another matter.
“I have always taken the view that it is a good idea to have a judicial element in the safeguards to introduce an element of independence and distance from the doctors. A judicial element seems to me to be a good thing.”
She added: “My own view, having thought about it quite a lot, is that the best and most practical solution would be to have a single judge doing it, but not necessarily, or even ideally, a High Court judge.
“This is a grassroots, down to earth decision, involving a real person in real circumstances and my belief is that any qualified and suitable judge should be able to do it. I have in mind district and circuit judges, who are used to making medically based decisions. They are also used to thinking about capacity.”
Circuit and district judges are lower-level professional judges who sit above magistrates and often oversee a wide variety of cases across venues including family courts and county courts, which can deal with issues from divorce to insolvency proceedings.
Local judges would be able to get a better feel of the circumstances of a particular area, and would help “spread the load across the system and the country” to ease the pressure on the country’s “overburdened” courts, Hale said.
“I think that system would be certainly better than a High Court judge and probably better than a tribunal.”
Some critics had warned that requiring High Court judges to certify each decision would snarl up an already creaking legal system, or reduce their oversight to a mere rubber-stamping exercise.
But Hale said: “It’s not a tick box exercise if it’s down to the judge to make the decision. Some cases will be easy and quick and will be others that are not and will need to be given careful thought. This easy phrase ‘tick box exercise’ underestimates what judges do.”
Under her proposal there would be no need for legal aid or representation, she said. “There would be a bundle with the paperwork and then I would expect the judge would talk to the applicant and form a view and be in a position to ask for further evidence if in any way in doubt about it.”
She said her proposal “is a lot simpler and I think more practical” than Leadbeater’s amendment, though she added: “That does not mean to say I think the proposed panel is necessarily a bad thing.”
Britain’s MPs narrowly voted in favour of a bill to legalise assisted dying last year, following an emotionally charged and consequential House of Commons debate.
The legislation, which is not guaranteed to become law, is in the process of being scrutinised by MPs, with a final vote due in April. Leadbeater’s proposed change, which came hours before MPs began scrutinising the legislation on Tuesday, has threatened to derail the bill by alienating previous supporters of the measure, some MPs have warned.
Hale, who became the first female justice of the Supreme Court, the UK’s highest court, in 2009, worked as an academic, barrister and law reformer for many years before being appointed a judge.
As the first woman to serve on the Law Commission, which advises the UK government on legal reforms, she played an instrumental role in shaping landmark reforms to a series of divisive topics including divorce law, child custody and later mental health law.
Leadbeater’s bill as currently written would allow anyone with six months or less to live to seek help to end their own lives, with any decision requiring approval from two doctors.
Another amendment to the bill seeks to extend the eligibility criteria to 12 months for applicants suffering from neurological conditions, such as motor neurone disease, or Huntington’s.
“There is of course a case for extending it to other kinds of situations,” said Hale. “I understand there is a view that it would be wrong to include people with permanent, very severe disabilities, because of the message that would send. Which would not be welcome and would not be right.”
But she added: “I also understand that six months may be too short a period and there is a case for extending it to 12 months in the case of people with neurological conditions.”
The amendment would “be an improvement” on the bill, she said, while also reaffirming her long-held support of the measure: “I am supportive of the idea of allowing people to choose and at the time and manner of their passing and if they are unable to do it themselves, having some help to do so.”
