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The need for judges to approve assisted dying cases risks being a “rubber stamping” exercise that does not provide an adequate safeguard, former senior judges have warned, as MPs prepare to vote on the controversial measure this week.
Under the proposed legislation, two doctors must approve a terminally ill person’s request to end their life, and a High Court judge must sign off their decision after talking to one of the medics.
But retired senior judges have questioned the protections in the bill, and criticised the decision to use judicial sign-off as an attempt to bestow legitimacy on a process that judges would have very little real involvement with.
“Judges are simply being recruited to add lustre to a decision made by somebody else,” said one retired very senior judge. “It seems to me that the role of the judiciary is simply confined to rubber stamping the exercise.”
The bill would allow terminally ill people who have been given six months to live to end their life. It has been brought by Labour backbench MP Kim Leadbeater, who said the requirement for two doctors and a judge to approve the decision is a strong protection against potential misuse.
But Sir Gerald Barling, a retired High Court judge, called the protections in the bill “arbitrary and defective”, and said it was “likely to be very problematic at several levels”.
He stressed that judges “will follow these rules and criteria very conscientiously” but added it was imperative they talk to the person wishing to end their life.
“I don’t see how without seeing the patient, the judge can decide that there is this clear, settled and informed decision to end their own life,” he told Times Radio on Tuesday.
The bill “does give the appearance of being hastily conceived without really addressing its implications”, he added.
Lord Thomas, the former Lord Chief Justice of England and Wales, also said it was not clear how judges were to carry out their roles, to avoid becoming a “rubber stamping” process.
“There has to be a process by which the evidence is put before the judge and the judge will need help . . . [to] bring the evidence before him by making the relevant inquiries,” he told the Radio 4 Today programme.
“I don’t see how we can go forward on this because judicial approval is an integral part of the process in working out precisely how it is to be done.”
Former judges have also questioned how the sessions would work given the long backlogs facing courts.
Sir James Munby, the former head of the family division of the High Court, said this month the requirement could add as much as 34,000 hours to court time, adding to the “enormous strain” already facing judges.
He added that more detail was needed in order for the public to have confidence in the role of judges as an adequate safeguard.
“Even High Court judges are fallible and sometimes make mistakes,” he wrote in an article for The Transparency Project website.
The Judicial Office said the issue was a matter for parliament and declined to comment further.
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