Border Security, Asylum and Immigration Bill (Third sitting)
Tuesday 4th March 2025
(1 day, 19 hours ago)
Public Bill CommitteesBorder Security, Asylum and Immigration Bill 2024-26 View all Border Security, Asylum and Immigration Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Notices of Amendments as at 4 March 2025 - (4 Mar 2025)
The Committee divided: - Ayes: 3 / Noes: 12 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 12 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 12 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 12 - Question accordingly negatived.
The Chair
Will everyone please ensure that they have switched off any electronic devices or turned them to silent mode?
We now begin line-by-line consideration of the Bill. The selection grouping for today’s sitting is available in the room or on the parliamentary website. It shows how the clauses, schedules and selected amendments have been grouped together for debate. The purpose of the grouping is to limit, in so far as possible, the repetition of the same points in debate. The amendments appear on the amendment paper in the order in which they relate to the Bill.
A Member who has put their name to the lead amendment in a group is called first. In the case of a stand part debate, the Minister will be called to speak first. Other Members are then free to indicate that they wish to speak in the debate by bobbing. At the end of the debate on a group of amendments, new clauses or schedules, I shall call the Member who moved the lead amendment or new clause to speak again. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or the new clause or seek a decision. If any Member wishes to press to a vote any other amendment in a group, including grouped clauses and new schedules, they need to let me know.
I hope that that brief explanation is helpful. I remind Members about the rules on declaring interests, as set out in the code of conduct.
Clause 1
The Border Security Commander
Matt Vickers (Stockton West) (Con)
I beg to move amendment 10, in clause 1, page 1, line 6, leave out
“designate a civil servant as the”
and insert “appoint a”.
This amendment would remove the requirement for the Border Security Commander to be a civil servant.
Matt Vickers
It is a pleasure to serve under your chairmanship, Dr Murrison. The subject of this Bill is incredibly important to this country and its future. I hope that, during the next two weeks, the Committee will give us a constructive opportunity for the consideration and strengthening of the Bill.
Let me briefly outline our first amendment. Clause 1 creates the Border Security Commander as a statutory office holder, and requires that the Secretary of State must designate a civil servant as the Border Security Commander. As Tony Smith, former director general of the UK Border Force, said in evidence to the Committee:
“I am not sure he will actually be able to command anything. He is probably going to be more of a co-ordinator.”––[Official Report, Border Security, Asylum and Immigration Public Bill Committee, 27 February 2025; c. 40, Q43.]
That is why we tabled amendment 10, which would remove the requirement for the Border Security Commander to be a civil servant.
The status of the Border Security Commander—as well as the commander’s functions and priorities, which I will come to in discussions on later amendments—is crucial if the role is to be in any way meaningful. As the Minister is aware, there are organisations that do not require civil servants to run them. Such a structure ensures their independence and reduces the internal day-to-day political struggles that can easily be imposed on them. Allowing recruitment from outside the civil service may also provide a wider talent pool and prevent the role from being relegated to that of yet another senior civil servant in the Department. We heard evidence about the wide array of roles in the Home Office already. The amendment would highlight the clear distinction between existing positions and the importance of securing our borders.
I would be grateful for the Minister’s answers to the following questions. Why have the Government decided that the Border Security Commander must be a civil servant? What is the operational benefit of that decision? Why would the Border Security Commander not benefit from greater independence? What level of seniority will the Border Security Commander have? In evidence to the Committee, Tony Smith assumed that the post would likely be a director general. Is he correct? If so, why have the Government made that decision? Fundamentally, if Mr Smith is correct and the Border Security Commander cannot actually command anything—we will discuss that in detail when we come to later amendments—what is the point of the position?
Clause 2 sets out that the Border Security Commander must
“hold and vacate office in accordance with the terms and conditions of the Commander’s designation,”
and that the
“terms and conditions of a designation as Commander are to be determined by the Secretary of State.”
That is all the information we get. Will the Minister explain what the terms and conditions of a designation as commander will be? Let us compare the situation of the Border Security Commander, who is allegedly responsible for the security of our border, with that of the Metropolitan Police Commissioner. The Police Reform and Social Responsibility Act 2011 sets out that the commissioner has to be suitably qualified; will the Minister explain why no such requirement appears to exist in the legislation for the Border Security Commander? What would count as suitable qualifications for someone to take up the post of commander?
If the Secretary of State determines that a person’s designation as commander should be terminated, the Secretary of State must give the commander a written explanation of the reasons, give them an opportunity to make written representations and consider those before making a final decision. That seems sensible and in line with other positions, such as the Met Commissioner, that ought to be vaguely comparable in terms of responsibility.
The Minister for Border Security and Asylum (Dame Angela Eagle)
It is a pleasure to serve with you chairing our proceedings, Dr Murrison, and I look forward to many hours of that—as I am sure you do.
I will set out what clauses 1 and 2 do and hopefully persuade the Committee that amendment 10 is not required. The clauses set out the role of the Border Security Commander and detail the terms and conditions under which they hold the office. The purpose of the Opposition’s amendment 10 is to remove the requirement that the Border Security Commander be a civil servant. The hon. Member for Stockton West—I will learn all Members’ constituencies by the time we get to the end—seemed to say that he thought there was operational benefit in complete independence. I suppose that is one way of looking at it, but there is also benefit in co-ordination and in being attached to a central strategic point. The Government believe that that attachment, rather than total independence for the sake of it, is more likely to be effective.
Amendment 10 implies that the Border Security Commander should not be a civil servant. The role of the commander is a civil service role and the Border Security Command is a directorate within the Home Office. In a future recruitment exercise, existing civil servants could be appointed or the role could be advertised externally. Under the arrangements in clause 1 there is no limit one way or the other on where the Border Security Commander might come from—they could be internal or external. I hope that is some reassurance.
The mechanism of appointment is a civil service recruitment campaign to ensure that the best candidate is selected on merit. Given that the role sits within the Home Office and leads the functions of a directorate in the Department, it is logical that the role would be a civil service role. The idea is to cohere, not to fragment the work that is done. I see it very much as ensuring that all the cogs across Government connect with one another, so that when we turn the wheel we get something out at the end, rather than having a load of cogs that do not connect, which would not lead to a more effective outcome.
Clause 1 sets out that the Secretary of State must designate a civil servant as the commander and will make the necessary arrangements to ensure that resources are available to support them in exercising their functions. The Bill will place the Border Security Commander on a statutory footing, which will future-proof and solidify the role and ensure a clear direction and leadership for the UK’s border security system. Placing the Border Security Commander under this new legal framework is a clear signal of our determination to tackle organised immigration crime by going after the criminals who put lives at risk and undermine our border security.
Clause 2 details the commander’s terms and conditions and how they will hold, maintain and vacate the office. This clarity is necessary to ensure continuity in the role, and it underlines the Government’s commitment to making the Border Security Commander an enduring office.
Katie Lam (Weald of Kent) (Con)
We on the Opposition Benches struggle to understand why the law must set out that the Border Security Commander must be a civil servant. The Minister said that amendment 10 implies the commander should not be a civil servant, but all it seeks to do is remove the requirement that they should be. If the Home Secretary and, presumably, the Home Office permanent secretary believe that the role is best filled by a civil servant, perhaps for the reasons of co-ordination that the Minister set out, so be it—they can still be appointed as a civil servant—but the legislation will mandate that they have to be, and we struggle to understand why that requirement is necessary.
Dame Angela Eagle
I made it clear in my response to the hon. Member for Stockton West that the recruitment could be done externally. Were somebody to be appointed who was not a civil servant when they applied, they would then come into the Home Office on civil service terms, bringing with them whatever experience they had and that the recruitment process had determined would be suitable for the role. I am not sure there is much between us, unless the hon. Lady is implying that, by the act of becoming a civil servant, the commander would somehow be less effective. I do not believe that is the case, especially as the idea is to ensure that the Border Security Commander can convene the entire system across Government Departments. Having a base in the Home Office, albeit designated as a civil servant, will make that more effective rather than less effective. To be clear, if the legislation gets on the statute book, any future office holder would not have to come from the civil service. I hope that reassures the hon. Lady.
Katie Lam
I thank the Minister for that response, which is reassuring, but it does not quite address the concern. These issues are very difficult, and I presume the Minister accepts that it is possible that it might be better, either in due course or in relatively short order, for the commander to be operationally independent. If that is the Home Secretary’s judgment as time goes on, the Government will have to come back to Parliament to change the law. Would it not be better for them to give themselves the flexibility?
Dame Angela Eagle
The hon. Lady implies that total independence from the machinery of government would somehow assist in the job that we wish the Border Security Commander to do. I do not agree with her in that analysis. The job of the Border Security Commander is to convene and cohere and to strategically focus, across Government Departments, with a focus on checking that our border security is as effective as it can be. I do not think that total independence is going to add to effectiveness in that context. In fact, we believe that having the commander operating out of the Home Office at a director general level, but appointed by the Prime Minister with a special place in primary legislation, is a more effective way to ensure that the commander’s basic role has the biggest-percentage likelihood of being effective.
Mike Tapp (Dover and Deal) (Lab)
The Minister has been clear that we can of course recruit from outside the civil service, and that being within the civil service equips the person with the powers, the tools and, of course, the access to be effective in the role.
I am slightly concerned that the hon. Member for Stockton West tabled the amendment off the back of oral evidence from Tony Smith, who—with full respect—retired from his role 13 years ago. The director general of the National Crime Agency gave evidence on the same day as Tony Smith, and he said:
“For me, I have worked really closely with Martin Hewitt already, and it works well. It allows me to focus on the operational leadership of tackling the organised crime threat and Martin to have the convening power and to work across Whitehall on a range of issues. It provides clarity, and we have more than enough to get on with in the NCA in tackling…organised crime”.
Jim Pearce, the National Police Chiefs’ Council lead on organised immigration crime, then said:
“I sit on Martin’s board, so strategically I am heavily involved, and members of my team sit within the operational delivery groups. Speaking from a personal point of view, his strategic plans over the next few years make absolute sense in terms of what he is seeking to achieve for the Border Security Command.”––[Official Report, Border Security, Asylum and Immigration Bill Public Bill Committee, 27 February 2025; c. 38, Q42.]
Dame Angela Eagle
I was just checking that I had my hon. Friend’s entire constituency name. They have all changed, Dr Murrison, which can be a bit disorientating because I am used to the old names.
My hon. Friend is exactly right. He demonstrates, through the evidence we heard—particularly from the NCA, the Crown Prosecution Service and the police chiefs last Thursday—that there is and was a strategic gap. Everybody is doing fantastic work in the NCA, the police, His Majesty’s Revenue and Customs and the security services, but nobody had taken a focused look at how border security could be delivered most effectively. From the meetings I have had since Martin Hewitt took up his post, it seems there is almost relief that somebody is convening a board that can look at analytics on where the threats are, how they are developing and how we can best deal with them, and do the legwork to come up with a strategy focused on border security. That is the whole point of creating the command.
Chris Murray (Edinburgh East and Musselburgh) (Lab)
It is a pleasure to serve under your chairmanship, Dr Murrison. I would like to make a couple of points about the amendment.
As the Minister set out, clause 1 does not mean that someone who is not a civil servant cannot apply for the role. We have to be careful not to have an old-fashioned view of how the civil service operates. External candidates are increasingly common nowadays as outside specialisms are required by the Government, even for roles that are not particularly senior.
Even if an external candidate applies, they will get the support of the civil service. The role compares to Home Office roles such as the independent chief inspector of borders and immigration and the commissioner on modern slavery, who are separate from the Home Office apparatus and often report—especially at the Home Affairs Committee—that they do not get the support and structural backing they need. Clause 1 would obviate that. The commander will also be subject to the civil service code, which is important given the high levels of public expectation for the role.
The one difference between this and other directors general, and other senior figures in the Home Office, is that the role is set out in primary legislation. We will thereby create a distinction for the role by passing the Bill. The shadow Minister suggested that we should discuss the suitable qualifications for the role, but the role is very operational so we should be wary of setting out in legislation or in this debate the exact specifications of every task.
Finally, we must be careful of the pendulum swinging in one direction with one Government and then, with a change of Government, straight back in the other direction, meaning we repeat the mistakes of the past. When the coalition Government came into office in 2010, Home Secretary Theresa May—now Baroness May—restructured the UK Border Agency, as it was under the Labour Administration. She commented at the time that the UKBA had been structured in such a way as to be so independent that it would
“keep its work at an arm’s length from Ministers—that was wrong. It created a closed, secretive and defensive culture. So I can tell the House that the new entities will not have agency status and will sit in the Home Office, reporting to Ministers.”—[Official Report, 26 March 2013; Vol. 560, c. 1500.]
Although we are trying to correct what has clearly gone wrong over the previous 14 years of Conservative government of Border Force, it is important that we do not overcorrect and go back to the situation we were in before, which Baroness May pointed out did not work then.
Dame Angela Eagle
My hon. Friend makes some very good points, particularly about over-correction between Governments but also about the fact that independence is an obvious thing to have for particular posts—in inspection, for example, but not necessarily operational ones—and the need to cohere a system, to ensure that all the good work being done across different Departments can be focused strategically on one aim. That is what the clauses seek to do.
Tom Hayes (Bournemouth East) (Lab)
It is a pleasure to speak under your chairpersonship, Dr Murrison. I want to take on a principled point that I have heard levelled by the hon. Member for Stockton West and other Conservative Members today and on Second Reading, which is that the Border Security Commander cannot command. It is really important to address that point.
From 2018 to 2023, we saw the number of small boat arrivals increase from 299 to 29,500. That is a hundredfold increase. As I understand it, some of the explanation given by the Conservatives is that the matter became very complicated, and we were seeing an increase in organised crime activity. To their credit, that was reinforced by the director general of the National Crime Agency, Rob Jones, who said
“The problem that I focus on is the organised crime element, which needs concurrent effort in a number of areas, designed to undermine the business model that supports organised immigration crime. That means tackling illicit finance; the materials that are used in smuggling attempts and the supply chain that supports them; the high-value targets based overseas who are involved in supplying materials and moving migrants”.––[Official Report, Border Security, Asylum and Immigration Public Bill Committee, 27 February 2025; c. 29, Q28.]
Those were just some of the things he highlighted.
If we acknowledge that the present Government face a more complicated situation, we should agree that it will involve a suite of tools. As Rob Jones said,
“There is not one thing that you can do to tackle these problems”. ––[Official Report, Border Security, Asylum and Immigration Public Bill Committee, 27 February 2025; c. 29, Q28.]
Sarah Dineley, the deputy chief Crown prosecutor, concurred with her colleagues and said:
“I do not believe that there is one single measure that would impact so significantly that it would reduce migrant crossings to zero.”––[Official Report, Border Security, Asylum and Immigration Public Bill Committee, 27 February 2025; c. 30, Q28.]
Jim Pearce, the National Police Chiefs’ Council lead for organised immigration crime, highlighted the same point.
If the situation is so complex and there is a need for the suite of tools that are being strengthened by this Bill, surely there is a need for greater co-ordination. Greater co-ordination will surely help to fix some of the strategic challenges that our immigration system and asylum system have faced in recent years. To co-ordinate is to command, and it is crucial we accept that point. If we do not, we will not be able to tackle the backlog we face, we will not be able to implement the measures in the Bill and we will not be able to secure our borders.
Amendments have been tabled in relation to aspects of the Border Security Commander role, but I am not entirely certain whether the Conservative party supports the role of Border Security Commander at all. On Second Reading, we heard colleagues asking what Martin Hewitt is doing with his time. I would welcome the hon. Member for Stockton West explaining whether the Conservative party does in fact support the role of Border Security Commander and Border Security Command. We heard clearly from those who gave oral testimony, who are operationally focused, experienced and expert in their field, about the necessity of such a command. Indeed, Enver Solomon, the chief executive of the Refugee Council, summed it up well when he said that
“the Border Security Command is an understandable response.”––[Official Report, Border Security, Asylum and Immigration Public Bill Committee, 27 February 2025; c. 5, Q1.]
Matt Vickers
We will discuss when we come to the next group of amendments the aims and objectives of this role, and the fact that if we are going to have a Border Security Commander, they should have a very meaningful role that can make a real difference. I would like to press on clause 2 of the Bill, which talks about
“The terms and conditions of a designation as Commander are to be determined by the Secretary of State.”
I would be grateful if the Minister could explain to the Committee what those terms and conditions of designation might be? As I mentioned, the Police Reform and Social Responsibility Act 2011 sets out how the Met commissioner must be suitably qualified. What sort of qualifications could we expect to see in a commander and what will those terms and conditions be?
Dame Angela Eagle
I do not want to read out the job description, which was put out there ahead of Martin Hewitt being appointed last year. It is there for all to see, it is a public document. The role is very much about being able to operationally cohere the system and to make certain by the operation of the Border Security Commander’s board, upon which sit many of the other parts of Government that need to have regard to the strategy, that we decide how to take forward and deal with threats to our border security. It is not really rocket science, and I do not think that there would be much to be gained from putting the details of all of that into primary legislation.
It is important that as the threats to our border security evolve, which they certainly will do over time, that we do not find ourselves with a very rigid set of requirements in primary legislation, which is hard to change. The idea is to have convening powers to give flexibility to the commander to ensure that he can bring together all of the forces across Government that are charged with security in this area and ensure that the focus on organised immigration, crime and border security is always at the forefront of the work that they do.
Katie Lam
I am a little confused by some of the contributions from Labour Members. They seem to be advocating for the commander to be a civil servant, and that is fine, but that is not actually what we are discussing. The question here is whether there could be any benefit in having some flexibility for the Home Secretary to do something different, and we do not feel that that point has been answered.
Dame Angela Eagle
Could the hon. Lady go into more detail about what she means with respect to that? I have given her an assurance that the Border Security Commander could come from outside of the civil service and be appointed from outside of the civil service, but would then take up a civil service role of convening within Government and with the support of Government. That means that we do not have to set up an entirely new independent structure and fund it separately, which would be more likely to disintegrate rather than integrate the strategic approach to this multifaceted problem. I am beginning to wonder what the hon Lady has got against civil servants?
Katie Lam
Nothing whatever. There are lots of parts of the Home Office where the principle is accepted, that sometimes, particularly for difficult things and things that the Department has struggled to achieve, independence can be valuable. It sounds like the Minister is saying that she does not feel that that is the case. We must accept that, but we do not have to agree with it.
Dame Angela Eagle
It is true that independence has a very valuable part to play, particularly in holding Government structures to account. For example, the independent inspectors of our detention or prison estates who are allowed to go in and publish without fear or favour regarding what they find there. That is obviously a very important role where independence matters. But in this context, the Border Security Commander is cohering the effect and the work across Government that is trying to keep our borders properly protected. That is operational. It ties into the diplomatic and political as well, although obviously Ministers have an important part to play in that too.
The hon. Lady has nothing to worry about when it comes to the Border Security Commander sitting in a civil service context given that nothing in this Bill means that anyone who was not a civil servant when they applied to the post of Border Security Commander would be excluded from consideration. Being in the civil service to begin with is not a requirement.
Matt Vickers
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 ordered to stand part of the Bill.
Clause 2 ordered to stand part of the Bill.
Clause 3
Functions of the Commander
Pete Wishart (Perth and Kinross-shire) (SNP)
I beg to move amendment 1, in clause 3, page 2, line 29, at end insert—
“(1A) In exercising the Commander’s functions, the Commander must have full regard to the provisions of—
(a) the Human Rights Act 1998; and
(b) the Council of Europe Convention on Action against Trafficking in Human Beings.”
This amendment would confirm that the Commander must have full regard to the Human Rights Act and the European Convention on Action against Trafficking.
The Chair
With this it will be convenient to discuss the following:
Amendment 12, in clause 3, page 2, line 36, at end insert—
“(2A) The strategic priority document issued under subsection (2) must support the Home Office’s UK Border Strategy.”
This amendment would require that the Border Security Commander’s strategic priority document supports the UK Border Strategy.
Amendment 13, in clause 3, page 2, line 36, at end insert—
“(2A) The Home Secretary may give direction to Border Force, Immigration Enforcement, Police and Crime Commissioners (PCCs) and the National Crime Agency to support the Border Security Commander in the delivery of the Border Security Commander’s objectives and strategic priorities.
(2B) The Home Secretary’s powers under subsection (2A) must not be used to interfere with the democratic mandate of the PCC within a force area, nor seek to interfere with the office of constable or operational independence of the chief constable or the operational independence of the National Crime Agency, unless the Home Secretary is satisfied on the advice of HMICFRS that not to do so would result in a police force of the National Crime Agency failing or national security being compromised.”
This amendment would enable the Home Secretary to direct other agencies to support the Border Security Commander’s objectives and strategic priorities.
Amendment 11, in clause 3, page 2, line 41, leave out subsection (b).
This amendment would remove the requirement for the Border Security Commander to obtain the consent of the Secretary of State before issuing the strategic priority document.
New clause 7—Duty to meet the director of Europol—
“The Border Commander must meet the director of Europol, or their delegate, no less than once every three months.”
This new clause would require the Border Commander to meet with the Executive Director of Europol every three months.
New clause 21—Functions of the Commander in relation to sea crossings to United Kingdom—
“(1) In exercising the Commander’s functions in relation to sea crossings to the United Kingdom, the Commander must have regard to the objectives of—
(a) preventing the boarding of vessels, with the aim of entering the United Kingdom, by persons who require leave to enter the United Kingdom but are seeking to enter the United Kingdom—
(i) without leave to enter, or
(ii) with leave to enter that was obtained by means which included deception by any person;
(b) ensuring that a decision is taken on a claim by a person under subsection (1)(a) within six months of the person’s arrival in the United Kingdom; and
(c) making arrangements with a safe third country for the removal of a person who enters the United Kingdom without leave, or with leave that was obtained by deception.
(2) The Commander must include, in the strategic priority document issued under section 3(2), an assessment of—
(a) the most effective methods for deterring illegal entry into the United Kingdom;
(b) the most effective methods for reducing the number of sea crossings made by individuals without leave to enter the United Kingdom; and
(c) the most effective methods for arranging the removal, to the person’s own country or a safe third country, of a person who enters the United Kingdom illegally.
(3) For the purposes of this section—
(a) ‘sea crossings’ are journeys from dry land in France, Belgium or the Netherlands for the purpose of reaching dry land in the United Kingdom; and
(b) illegal entry to the United Kingdom is defined in accordance with section 24 of the Immigration Act 1971 (illegal entry and similar offences).”
This new clause sets out objectives and strategic priorities for the Border Security Commander in relation to sea crossings and arrangements with a safe third country for the removal of people who enter the UK illegally.
Pete Wishart
It is a pleasure to serve under your chairship, Dr Murrison. It is a good 10 years since I have had the pleasure and privilege of being on a Public Bill Committee—or Standing Committee, as we used to call them back in the day—and I hope that it will be as much fun as I remember. Ten years ago, I was the home affairs spokesperson, and I saw a number of Bills quite like this one: good old-fashioned “stop them coming and boot them out” Bills. There has been a succession of them over the years from various Governments. The Minister knows that I hold her in great respect and affection, and I wish her particularly well with the Bill.
Dame Angela Eagle
I hold the hon. Gentleman in similar affection. We are pretty long in the tooth—we are the two people who are the most long in the tooth on this Bill Committee—and I look forward to listening to his arguments.
Pete Wishart
I am grateful to the Minister for that. I would hate to think of our combined number of years in this House, but certainly we have almost spanned half a century.
The first 12 clauses are totally dedicated to putting the Border Security Commander into statute, and the first three list his functions, and outline and define some of his responsibilities. The Bill states that the Border Security Commander must be appointed by the Home Secretary and will be obliged to prepare annual reports. A board will be appointed
“to assist the Commander in the exercise of the Commander’s functions.”
I do not know about other hon. Members, but the last time I looked there already was a Border Security Commander, who is doing the job as outlined in the Bill effectively, pretty much as the Home Secretary has been directing him, without needing to have been put into statute. If my mind does not deceive me, I remember Martin Hewitt being appointed as the commander and doing all these things, but here he is, 12 clauses of a Bill better off, and secure in the knowledge that he is now in statute.
All that makes me think of the BBC Scotland series “The Chief”, which as Scottish members of the Committee will know is the fantastic new spin-off of “Scot Squad”. It features the mythical and fantastic character Chief Commissioner Miekelson. He is a complex character. A bit self-aggrandising, he is always getting himself on the wrong side of various issues around the culture wars, which he is pretty uncomfortable with; he always manages to upset or offend somebody. I am sure that he is the exact opposite of Commander Hewitt, who I believe is modest, nice and easy to get on with—I have not had the pleasure of meeting him so far. However, they have a couple of things in common, which I want to explore as we look at the functions of the commander.
It strikes me that Commander Miekelson would love to be in statute; 12 clauses of a Bill—he would look at this as some great calling card. They face similar threats: for Commander Miekelson, it is the bams who make his life a misery and whom he needs a whole load of new powers to deter; for Commander Hewitt, it is the illegals. As we go through the Bill, let us wish Commander Hewitt and Chief Commissioner Miekelson all the best as they tackle these threats.
Chris Murray
Does the hon. Gentleman accept that although Commissioner Miekelson is a fictional character, the role was created by statute—by the SNP Scottish Government when they created Police Scotland?
Pete Wishart
Police Scotland has a chief constable who is in charge, but in “Scot Squad”, Commissioner Miekelson is a chief commissioner. It is only right that we point out these distinctions; there is a significant difference between that mythical, fictional character and the reality of the role of chief constable, which is very efficiently and effectively looked after by the current inhabitant of that post.
I know you want me to get on to the particular amendment, Dr Murrison, so thank you for your forbearance and patience. My amendment confirms that the,
“Commander must have full regard to…the Human Rights Act 1998; and…the Council of Europe Convention on Action against Trafficking”.
The Minister is likely to tell me that none of that is necessary as human rights compliance is already implicit with Government operations. However, without these explicit legal mandates and safeguards, all of that can be overlooked. If the Minister is asking us to agree to 12 clauses at the outset of a Committee for an important Bill, relating to a job that is already being done, surely we can agree that one of these functions should be about the observance of our very important international obligations under the Human Rights Act 1998 and the Council of Europe convention on action against trafficking in human beings.
I do not think anybody is opposed to the border commander; I know there are a few jokes about his comparison to Chief Miekelson, but all of us agree that the Minister is establishing a necessary and useful role. I do not think, even though she was trying to chide her Conservative colleagues, that there was much disagreement from anybody on whether this is a useful role that could help bring together quite a lot of the structure and infrastructure that is responsible for operating our border security. There is a discussion about a lot of his tasks being administrative. There is nothing wrong with that, but for something as important as this, everybody would like to think that where there is administration, it will be effective and put in place in a way that we could look at it.
However, we need further clarity on the roles, functions and responsibilities of the border commander. Clause 3 is supposed to be the place where we find all of those things, but the one thing that the clause does not do is outline fully, perfectly, roundly and coherently what the actual functions of the border commander will be. Even if we look very carefully in all the different subsections, it does not say much about what he is expected to do. It lists a number of administrative responsibilities he will have, which is fair and fine, but all of us discussing the role of the border commander in the Committee would like to understand what he will be doing—what are his jobs, what are his functions, what responsibilities will he have, how will these things be discharged, and how will he be open to the type of scrutiny that we, as Members of this House, require?
There are provisions that seem to speak about the functions without actually identifying any of them. The only place where we can find objectives in clause 3 is subsection (1), but they are only objectives to which the commander must have regard. That is important. It just says he must “have regard” to the particular responsibilities that are outlined in the subsections. Subsections (7) to (9) are particularly interesting because they seem to suggest that people smuggling and human trafficking to the UK are to be regard as threats to border security. That seems fair enough; most of the Bill is about the perceived threat—disrupting networks and tackling the gangs that operate their vile trade across the channel.
Here is the thing: the people who board these boats are subject to the constraints imposed by these gangs and are at their mercy. They are controlled and reliant. Those people are totally and utterly ignored in the subsections in clause 3. Their realities—their need and right to seek safety, reunite with family and escape situations of extreme deprivation—are ignored, even though they have everything to do with the responsibilities and functions of the commander. As a matter of principle, then, it is vital that the Bill should be amended so that the Border Security Commander has regard to objectives concerned with respecting human life and dignity, and that must include specific shared obligations to provide asylum to people fleeing persecution and to enable victims of human trafficking to have security and safety from their enslavement.
There are concerns that, if border enforcement strategies do not include these protections for vulnerable individuals and victims of modern slavery, trafficking victims will enter further cycles of exploitation. In prioritising enforcement over protection, as the Bill does almost exclusively, we risk wrongfully criminalising victims of trafficking and failing to identify those in need of urgent intervention—or, worst of all, sending them back to their exploiters. If we stand by our commitments under the Council of Europe convention on action against trafficking in human beings, the Bill should ensure that the commander respects those obligations too.
As we have discussed, the commander is a civil servant. I have taken no great view on that, and I listened carefully to the exchanges about the civil service role, but I have a couple of concerns in relation to my amendment 1 that I would like the Minister to address. The civil service code does not give a clear, enforceable duty to respect the UK’s obligations under international law. I am pretty certain that the Minister will tell me that there is a general obligation to comply with the law and our international obligations, as that is expected and anticipated in everything that the Government do through all their responsibilities and actions.
However, I refer the Minister to the recent case in the High Court. That was, of course, R (on the application of FDA) v. Minister for the Cabinet Office and others. I think the Government actually won that court case, which meant that any of the civil servants who were involved in compiling regulations had to abide by the legislative context but did not have to oblige and comply with the international obligations. At best, it is unclear, so I ask the Minister to clarify: will the Border Security Commander, who will be a civil servant, always be obliged—totally and utterly—to fully respect all our international obligations, particularly those around the HRA and the ECAT?
Without those specific obligations in the Bill, the Border Security Commander will be presumed always to prioritise enforcement over vital legal protection, potentially leading to human rights violations. Although the commander is required to comply with instructions set by the Home Secretary, which again I think everybody would accept is right and appropriate, they are not explicitly required to comply with the UK’s human rights obligations. For me, that is totally wrong, and it completely skews the whole modus operandi of our Border Security Commander and features of the Bill. I will come back to that as the Bill progresses.
We need to see this change to the Bill. We have 12 clauses and various subsections dedicated to the role and the functions of the commander. Let us have one—just one—that says that he must be prepared and obliged always to act in line with all of our obligations on international responsibility, being a good international actor, being a place that is recognised for exemplary human rights requirements and being signed up to the HRA and to ECAT. Let us put that in the Bill.
Matt Vickers
I have not come across Chief Commissioner Miekelson before, but I will endeavour to catch up on Netflix or iPlayer.
Matt Vickers
Clause 3 sets out the functions of the Border Security Commander. The shadow Home Secretary, the right hon. Member for Croydon South (Chris Philp), correctly pointed out on Second Reading that the new Border Security Commander
“cannot actually command anything. There are no powers at all in the Bill, merely functions. They include, in clause 3, publishing a strategic priority document and, in clause 4, a duty to prepare an annual report…the Border Security Commander has no clear powers, merely an ability to publish documents and reports.”—[Official Report, 10 February 2025; Vol. 762, c. 69.]
According to the legislation, the functions of the commander
“must have regard to the objectives of…maximising the effectiveness of the activities of partner authorities relating to threats to border security, for the purpose of minimising such threats, and…maximising the coordination of those activities for that purpose.”
That sounds suspiciously like a co-ordinator, rather than a commander. That is exactly what the legislation states: the commander does not appear to be empowered by the Bill to command anyone.
Subsection (5) defines a partner authority as a
“public authority with functions in relation to threats to border security (whether exercisable in the United Kingdom or elsewhere)”,
but—in subsection (6)—
“not…the Security Service…the Secret Intelligence Service”
or “GCHQ”.
Will the Minister confirm what is meant by partner authorities? Does she have a list of likely organisations that the Border Security Commander should be able to direct co-operation with? How far does she think that the Border Security Commander will be able to have an impact on public authorities abroad? For example, what role might French law enforcement be expected to play in having regard to the commander’s strategic priority document?
The Opposition have tabled amendment 13, which would enable the Home Secretary to direct other agencies to support the Border Security Commander’s objectives and strategic priorities, specifically Border Force, Immigration Enforcement, police and crime commissioners and the National Crime Agency. Ideally, we would like the Border Security Commander to have a meaningful role and the ability to direct other agencies. As the Government seem unwilling to do that, however, we thought it might be possible for the Home Secretary to give the Border Security Commander a little support.
If the Minister does not want to accept amendment 13, I would like to understand why not. Why do the Government seem willing to allow the commander only to co-ordinate, rather than to command? Why could the Home Secretary not add some additional impetus?
The clause requires the Border Security Commander to issue a strategic priority document that sets out the principal threats to border security when the document is issued, and the strategic priorities to which partner authorities should have regard in exercising their functions in relation to any of the threats to the border identified by the commander. We have tabled amendment 12 to ensure that the strategic priority document supports the Home Office’s UK border strategy. We are attempting to ensure that the Border Security Commander is aligned with the rest of the Home Office’s work to secure the border. I am interested to understand why the Minister is not willing to accept that amendment.
Becky Gittins (Clwyd East) (Lab)
It is a privilege to serve under your chairship, Dr Murrison. Given the representations made by the hon. Members for Stockton West and for Weald of Kent, something seems strange and I would appreciate an explanation. The hon. Member for Stockton West is speaking to amendment 12 and the necessity of supporting the Home Office’s UK border strategy. Given the hon. Member’s comments about the Border Security Commander having a role within the civil service, why does he want the commander to adhere to the Home Office’s UK border strategy, which is headed up by a director general who is a civil servant?
Matt Vickers
If we are to have such a position, we want it to be effective and have the relevant powers, but we also want it to be aligned with the other priorities of the Home Office and the work going on there. I think that is clear.
Amendment 11 would remove the requirement for the Border Security Commander to obtain the consent of the Secretary of State before issuing the strategic priority document. We would like to understand the operational benefits of the Secretary of State having to sign off the strategic priority document, which again highlights the lack of a meaningful role for the Border Security Commander. Although the strategic policy document should set out what are, in the commander’s view, the principal threats to border security and the strategic priorities to which partner authorities should have regard, in reality the document is a diktat from the Secretary of State about the Secretary of State’s views, and that arguably exposes a lack of influence and gravitas in the Border Security Commander’s role.
Allowing the commander to issue a strategic priority document without seeking prior permission from the Secretary of State would provide a welcome level of independence for the role. The oversight and consultation of the board would ensure confidence in the Border Security Commander’s ability to take all necessary steps to stop the crossings. There may be occasions when the commander believes it is necessary to act swiftly and to implement changes without delay. Removing the requirement to have ministerial consent would allow them to act decisively. That approach, I am sure, could subsequently be supported by the Secretary of State.
Chris Murray
What, then, is the hon. Gentleman’s view of how UKBA functioned? In her testimony, Theresa May said that, where it had that kind of independence, it became “closed, secretive and defensive”, and she had to completely restructure UK border defence because the independence that the hon. Gentleman is talking about actually made it difficult for Ministers to have proper oversight.
Matt Vickers
When we talk about the Border Security Commander role, if we think it is going to “smash the gangs”, sort out all these problems and play a huge part in creating a secure border for this country, it is important that we allow it some element of independence and gravitas. We have talked about the commander being tied into the strategic priorities of the Home Office, but this amendment is about empowering them to make the difference that we want them to make. We want them to succeed.
As I was saying, removing that requirement would allow the Border Security Commander to act decisively. We must avoid unnecessary bureaucratic wrangling and ensure that, in this critical matter, they have the freedom they need to deliver results.
Tom Hayes
I have two quick points. First, the hon. Member talked about whether the Border Security Commander could somehow command or direct the activities of our international partners. I would highlight that this Government have strengthened and created the new international arrangements that have made it possible for us to start to secure and securitise our borders. It is important not to pretend that the history of what has happened did not happen; we should realise that we need to have close international ties.
Secondly, I am listening closely to the hon. Member’s suggestions for how the role could be improved. Is he proposing these amendments because the current office holder, Martin Hewitt, is not discharging the office in the way that he would like? Could he comment on whether he thinks that Martin Hewitt is doing a good job or a less-than-good job, and whether he thinks that the Border Security Commander role, as it is currently being discharged, is satisfactory?
Matt Vickers
At some point, Martin Hewitt will be superseded. We want to make sure that whoever is in this role is in the best possible position to do the best possible job. I do not think that these measures are necessarily about Martin Hewitt’s effectiveness or otherwise; they are about this post and its fundamental role—well, its apparent fundamental role—in delivering border security for this country.
Tom Hayes
It is not about Martin Hewitt’s professional competence or his ability as a person to do the role; it is about the role itself. Based on how the role has been configured, does the hon. Member believe that the present office holder is discharging the role well, with the responsibilities given, or is he proposing these measures because he believes that somehow the role is lacking?
Matt Vickers
I think there is an opportunity to strengthen this role so that it can provide that real fundamental change that we are apparently looking for in this Bill. I would not necessarily want to comment on the individual.
We have tabled new clause 21 to set out some clear and measurable objectives for the Border Security Commander, to attempt to give this co-ordinator some clear direction. New clause 21 would set out that, in exercising their functions, the commander
“must have regard to the objectives of…preventing the boarding of vessels, with the aim of entering the United Kingdom, by persons who require leave to enter the United Kingdom but are seeking to enter the United Kingdom…without leave to enter, or…with leave to enter that was obtained by means which included deception”.
In effect, we want it in black and white in the Bill that the commander will be given the objective of reducing illegal entry to the country, and that is what new clause 21 would achieve.
Since 2018, when the figures were first recorded, more than 150,000 people have arrived in small boats. As of 29 January, 1,098 people had crossed the channel since the start of 2025. In 2024 as a whole, 36,816 people were detected making the crossing. I would like to understand why the Government do not think it is worthwhile to give the Border Security Commander the direct objective of reducing or even ending those arrivals.
We also wish to ensure that those who arrive in this country illegally will not be able to stay. We know that effective returns agreements work as a deterrent. When in government, we cut the number of Albanian illegal migrants coming to the UK by small boat crossings by more than 90%, thanks to our returns agreement. In 2022, 12,658 Albanian illegal migrants arrived in the UK by small boat, but that fell to just 924 in 2023, following our landmark returns agreement with Albania.
We have therefore included in new clause 21 the objective for the Border Security Commander to ensure that a decision on a claim by a person who has arrived in the UK illegally is taken within six months of the person’s arrival, and for the commander to make arrangements with a safe third country for the removal of people who enter the UK illegally. It is up to the Government to put in place an effective deterrent to people crossing the channel in small boats.
Mike Tapp
I find it quite astounding that there are any claims of success from the Opposition, given that we saw 299 people cross in 2018 and then an exponential rise of over 130,000 on the Conservatives’ watch. The hon. Gentleman is talking about a deterrent, but four people went to Rwanda and over 80,000 people crossed when that scheme had been introduced.
Importantly, the whole system in the Home Office had completely ground to a halt. There is another deterrent that was overlooked by the Conservatives during their tenure, and that is having a process that actually functions. We now have record high deportations, and as that message cuts through to people who are looking to cross, it will start to serve as a deterrent.
Matt Vickers
I thought that we would get a bit further through the Bill before we got into records. In real terms, there has been a marked increase in the number of people coming here since this Government took office—small boat crossings are up by 28%. We now have 8,500 more people staying in hotels across the country—up by nearly 29%. We were closing hotels. The hon. Member talks about the number of people being deported, but they are voluntarily going back. In real terms, the number of people who have arrived on small boats being returned went down, and in the most recent figures, it has gone down again. We have not been sending back those people who have arrived in small boats since this Government took office—that is just not the case.
Mike Tapp
I thank the hon. Member for giving way again; I will not make a habit of it. It is important to realise that the processing of those who come into Western Jet Foil and then Manston takes time, but of course they will be deported, if they are not genuine refugees, once the system gets there.
It is also important to note something else. Being the Member of Parliament for Dover and Deal, I often look out across the sea, and I can tell when it is a good day to cross and when it is not. On those days when it is viable to cross, crossings have reduced. The Conservatives were relying only on the weather to bring down boat crossings.
Matt Vickers
I think, in the last week, we have found that the only thing that this Government are relying on is the weather, but I will carry on. I am sure we will come back to all these things in due course; it is good to be discussing them here instead of on a news channel somewhere.
As the Government are repealing the Illegal Migration Act 2023 and the Safety of Rwanda (Asylum and Immigration) Act 2024 with this Bill, we want to make sure that the Border Security Commander is empowered to ensure that all relevant agencies are working towards taking timely decisions on any claims by illegal immigrants, and removing those who enter the UK illegally.
Becky Gittins
I applaud the hon. Gentleman’s comments about a timely turnaround in the processing of asylum claims—something that really concerns Government Members with regard to the IMA and the Rwanda Act. Could he tell me what proportion of asylum claims under the previous Government were processed within the six-month period stipulated in this new clause?
Matt Vickers
I could not, but I could tell the hon. Lady that the backlog is even bigger now than it was when this Government took office.
If the Government were serious about tackling illegal crossings and creating an effective deterrent, they would support new clause 21. We also want to make sure that the Border Security Commander is transparent with the public about how best to stop illegal and dangerous channel crossings, which is why this new clause includes a requirement for the commander to make an assessment of the most effective methods for deterring illegal entry into the UK, the most effective methods for reducing the number of sea crossings made by individuals without leave to enter the UK, and the most effective methods for arranging the removal, to the person’s own country or a safe third country, of a person who enters the UK illegally. Again, if the Government were serious about protecting borders, they would support the new clause.
Clause 9 specifies that the Border Security Commander must
“comply with directions given by the Secretary of State about the exercise of the Commander’s functions under this Chapter.”
Can the Minister explain what sort of guidance the Secretary of State is likely to want to give the commander? Can she explain how the Secretary of State wishes to exercise the powers in the clause?
The SNP’s amendment 1 would confirm that the commander must have full regard to the Human Rights Act and the Council of Europe convention on action against trafficking in human beings. Given that the commander’s role, as drafted by the Government, includes no real power or responsibility, I am not sure what that amendment would actually achieve.
Susan Murray (Mid Dunbartonshire) (LD)
It is a pleasure to serve under your chairmanship, Dr Murrison. The Liberal Democrats would like to introduce new clause 7, because we want to strengthen cross-border co-operation and Britain’s role in that process. We also believe that we need to reverse some of the last Government’s roll-back of provisions to tackle gangs involved in modern slavery. The new clause would require the border commander to meet the executive director of Europol every three months, which would help to achieve those goals.
Chris Murray
Before I was elected and before Brexit, I was the justice and home affairs attaché at the British embassy in Paris. I helped to co-ordinate engagement between the Home Office, the French Government and Europol. I do not know how much the hon. Lady knows about how Europol functions, but it has a lot of operations and is a very busy organisation. It would frequently take us more than three months to arrange a meeting. Would the new clause not put civil servants at risk of breaching the law just because they could not set up a meeting fast enough?
Susan Murray
That is a really important point. If the new clause were accepted, civil servants would perhaps have to look at ways to schedule meetings in advance so that they were not done on an ad hoc basis.
Sarah Bool (South Northamptonshire) (Con)
It is a pleasure to serve under your chairmanship, Dr Murrison. If the role of the Border Security Commander is ultimately to be successful, there needs to be confidence in its efficacy. The title of clause 3 is “Functions of the Commander”, but headings in law are often not necessarily reflected in the interpretation, and the clause does not fully do what it sets out to achieve. As the hon. Member for Perth and Kinross-shire highlighted, it does not actually set out exactly what the functions are. It sets out that the commander has functions, and that they
“must have regard to the objectives of…maximising the effectiveness of the activities of partner authorities”—
which I assume would include Border Force—and
“maximising the coordination of those activities”.
As Migrant Voice and Amnesty International said during evidence, it seems that the role of the border commander involves little more than administration, and I am concerned about what they will actually do. Even with the objective of issuing a “strategic priority document”, all they have to do is set out the principle threats to border security and the strategic priorities.
I have a genuine question about the efficacy of the border commander. First, border security goes beyond just migration; it also relates to our biosecurity, as mentioned in the Environment, Food and Rural Affairs Committee the other day. Border Force highlighted that it deals with numerous issues, including breaches of rules on personal imports. That means that illegal meats are coming into the country, which is a real concern for our border security.
I am concerned about what the border commander will be able to do. Border Force actually needs help with monitoring imports and safely disposing of illegal meats, but it seems that the border commander will be able only to pull together Border Force groups and get them to talk about the problem or list potential threats. We know what the threats are; we just need action, as Border Force itself has called for. It needs more powers.
My concern is that the establishment of the border commander, although an interesting approach, will not actually solve the problems that need solving right now. Perhaps the Minister could address what the border commander will be able to do in that regard.
Dame Angela Eagle
I think Chief Miekelson will be on all our lists now. I spend the small amount of time I have in life to twiddle my thumbs looking for new detective dramas, and it seems I have overlooked one. I have been too into Scandi noir, when I should have been into Scottish noir. I will talk to the hon. Member for Perth and Kinross-shire after the sitting to see whether he can give me a little more detail, so that I can follow up for my own enjoyment.
This group contains various provisions relating to the Border Security Commander, including amendments 11 to 13 and new clause 21 from the official Opposition, and new clause 7, which the hon. Member for Mid Dunbartonshire spoke to. It also contains amendment 1, with which the hon. Member for Perth and Kinross-shire opened our proceedings on this group. In our earlier exchange, he and I reflected on how long in the tooth we both are. So experienced is he that he anticipated what my answer to his amendment would be, and his comments show that he has a coherent and experienced view of the way in which human rights law works. If we had to list in every single bit of primary legislation the treaties we had solemnly entered into, and the international agreements that we had, in many cases, helped to formulate and that we had then put into effect in our own law, we would have an even messier statute book than we have at the moment.
Amendment 1 seeks to ensure that the commander has full regard to the Human Rights Act 1998 and the Council of Europe convention on action against trafficking in human beings while carrying out all his functions. Both pieces of international agreement and law were freely entered into by predecessor Governments, and we take them extremely seriously as a law-abiding Government who believe in the rule of law. The Border Security Commander will be a public authority within the meaning of section 6 of the Human Rights Act, and must act compatibly with the Act. That is absolutely the case. It is not explicitly written into the Bill, as the hon. Gentleman’s amendment would require, but that does not mean that all the requirements in the two agreements that amendment 1 mentions will not be adhered to.
Pete Wishart
Before I put my question to the Minister, I will just say to the Committee that “The Chief” is available on iPlayer, if they want to enjoy the eight episodes that will come their way.
Pete Wishart
Perhaps not—I am sure you would have a few words to say about that, Dr Murrison.
I did anticipate the Minister’s response, but I do not think there is anything wrong with ensuring that our commitments to international operations and to the whole force of human rights across the world—things we agree on—are in the Bill. We saw with the previous Government how easily international obligations and the international rule of law can be set aside and torn up. We are asking for these things to be in the Bill to give us security and a guarantee that the border commander will pay attention to them. If the commander is not compelled to do that by statute, there will be no obligation whatsoever.
Dame Angela Eagle
The hon. Gentleman can be assured that everything the commander does must be compatible with our obligations under the Human Rights Act and the Council of Europe convention on action against trafficking in human beings. Those things are implicit with every public office holder in the UK, in all the contexts in which they work. The fact that those things are implicit, and not explicitly in the Bill, does not undermine the commitment of any Government who want to act within the rule of law. One of the first things our current Prime Minister said when he walked through the door at Downing Street was that we would be a Government who respected the rule of law and the Human Rights Act.
Chris Murray
The most comparable piece of legislation on this topic in a devolved context is the Human Trafficking and Exploitation (Scotland) Act 2015. That Act does not require a clause that specifies the obligation to respect international law. Those things are implicit in legislation passed by the Scottish Government, even on this topic.
Dame Angela Eagle
My hon. Friend is exactly right. Under section 6 of the Human Rights Act, all office holders implicitly have to follow the rules of the European convention on human rights. One issue, if we decide to move away from the current approach and start to include an explicit provision in particular Bills—as the amendment in the name of the hon. Member for Perth and Kinross-shire would—is that it might look like the implicit duty to adhere to these agreements does not apply if it is not stated explicitly. That would actually lead to a lessening of protections, if judges looking at what Parliament was legislating for decided that we must take account of section 6 of the Human Rights Act only if we put that in a Bill. We would end up in a worse situation.
I ask the hon. Member to accept that the structure in the Bill is the one we have used so far. I understand why he is sceptical, after the behaviour of the last Government, but I hope he accepts, given the Prime Minister’s pronouncements right from the beginning of this Government taking office, that we are not planning on undermining the Human Rights Act or its provisions.
Pete Wishart
I do not like having to correct the hon. Member for Edinburgh East and Musselburgh, who is usually very diligent on these matters, but the Human Trafficking and Exploitation (Scotland) Act 2015 is fully compliant with human rights legislation. That fact is included in the Act, as it is in practically every Act passed by the Scottish Parliament.
Dame Angela Eagle
I am not massively familiar with the Scottish statute book.
Chris Murray
On that point, the 2015 Act does refer to the Council of Europe protections and its definitions are taken from there. But there is not a clause that says that due regard has to be given—
Chris Murray
But in an implicit way, just as this Bill is. There is nothing on the face of the Act, in the way the hon. Member is proposing for this Bill.
Dame Angela Eagle
I feel I ought to intervene and separate the combatants. I reassure the hon. Member for Perth and Kinross-shire—especially given the pronouncements from some in the previous Government—that this Government are absolutely committed to the provisions of the Human Rights Act and the convention on action against trafficking in human beings. I hope he accepts that and will withdraw his amendment.
Amendment 12 seeks to ensure that the strategic priority document produced by the Border Security Commander is supportive of the Home Office’s UK border strategy. Border security is a fundamental part of the strategic approach to the wider border, and the strategic priorities for border security will help to drive the wider UK approach. They are part of the approach—they are not a threat or a counter to it. The strategic priority document will be consulted on at the board—which the Committee will discuss when we reach clause 6—which has representatives from across the border security system, to ensure alignment with wider strategic approaches to the border. The whole point of the Bill is to cohere and convene and to ensure that there is co-operation across complex systems; it is not to disintegrate systems. Therefore, it would be fairly astonishing if the border security strategy was somehow completely at odds with what the Border Security Commander and the wider system were planning.
Amendment 13 seeks to give the Border Security Commander the power to direct the specified law enforcement bodies and personnel in the delivery of his objectives and strategic priorities. The power to direct—what the hon. Member for Stockton West called “empowerment”—is not required. During last week’s oral evidence, we heard from representatives of the National Crime Agency and the National Police Chiefs’ Council that they welcome and value the collaboration to date with the Border Security Commander. The arrangements as provided for in the Bill will reflect and respect the operational requirements of the various board members. They are a balancing act between convening, collaborating and co-operating, and a way of ensuring that those who have some independence written into what they have to do in other areas feel not that they are being made “subject to” but that they are “collaborating with”. The most effective commanding is exactly that: it is done with co-operation; it is not done with dictatorial powers or attempts to undermine the independence of other organisations.
Under clause 5, partner authorities already have a duty to co-operate with the commander, in so far as it is reasonably practicable for them to do so. Under clause 3, partner authorities must have regard to the strategic priorities on which the board will be consulted and which will be endorsed by the Secretary of State, as set out in clause 4(b). Amendment 11 would remove the requirement for the Border Security Commander to obtain the consent of the Secretary of State to issue a strategic priority document.
My hon. Friend the Member for Edinburgh East and Musselburgh has already pointed out that an obsession with complete independence can actually fragment a system and make it harder for us to achieve outcomes by working together. He rightly mentioned that, where there is operational independence and we are trying to make a system work in co-operation, that can sometimes lead to cultures of secrecy and non-co-operation, rather than co-operation that focuses on objectives.
In the Bill, we wish to foster co-operation that focuses on very defined objectives and strategies. The Government believe that that is the best balance. Allowing the Border Security Commander to publish documents behind the back of the Home Secretary, for whatever reason he or she may think fit, is not exactly fostering a co-operative working environment or an environment that is likely to be successful. We believe that the way in which these things are expressed in the existing clauses is more likely to foster agreement.
As already discussed, the strategic priority document provided for in clause 3(2) will set out the principal threats to border security when the document is issued, as well as the strategic priorities to which partner authorities should have regard in exercising their functions in relation to any of the identified threats. The role of the Border Security Commander is to support the Government of the day, and it is therefore only right that Ministers and the Secretary of State endorse the strategic direction and collective response of this public authority in relation to border security.
The hon. Member for Stockton West seemed to want to give the Border Security Commander powers to do things and to remove the requirement for ministerial consent for whatever they wanted to do. That seems to set up the Border Security Commander in a more powerful position than Ministers, which seems an odd thing for a Member of Parliament and a shadow Minister to wish to do. We think that the right way of ensuring accountability for the way these things are done is to have ministerial involvement, rather than set up operational structures that are so independent of Ministers that people want to do things behind Ministers’ backs.
Susan Murray
The Minister makes good points about the practicalities. It is good to hear that she recognises that the Liberal Democrats are simply trying to ensure that we have international influence and cross-border activities.
Dame Angela Eagle
I can certainly assure the hon. Lady that I recognise the import of what she is trying to do with the new clause. Often, such proposals are hooks to hang a debate on, so that there can be a little more information about the Government’s intent. I can assure her that having close operational and diplomatic liaison across all the different structures we have to work with to deal with cross-border immigration crime is absolutely at the centre of what the Border Security Commander will want to do. When we come to it, I hope she will not press her new clause to a vote.
Matt Vickers
The contrast is interesting. The Opposition want to see a Border Security Commander independently empowered to make meaningful changes to secure the border, rather than another civil servant muted by political oversight. There is a big contrast in perspective in terms of whether a Home Secretary should be signing off on anything anyone in this huge role—which will make a difference to our borders—will be able to say. Secondly, I would like to understand why the Government do not think it worth the Border Security Commander having the objective of reducing or even ending small boat crossings.
Dame Angela Eagle
It is quite revealing that the hon. Gentleman seems to think that the natural order of things is for Ministers to be at loggerheads with civil servants and the people who are operationally charged with delivering on objectives. That may say more about Opposition Members than about the way we are seeking to achieve operational effectiveness and objectives in what we are doing.
Finally, new clause 21 focuses on the Border Security Commander’s functions in relation to tackling small boat crossings to the UK. This is an all-encompassing new clause, which goes far beyond the commander’s functions as set out in the Bill. The new clause seems to want the commander to be all things to all people.
The immediate priority is organised immigration crime-enabled small boat crossings. The Border Security Commander will, and necessarily must, evolve over time to provide the systems leadership across all threats as they emerge. Such crossings did not really emerge until 2018, but they have become embedded and more of a threat over time. Had we been discussing something like this in 2017, small boat crossings would not have featured at all. It is therefore important that our legislation allows the Border Security Commander to change approach or focus as new threats emerge. Threats evolve and change over time. Our approach accounts for that by stipulating in legislation that the Border Security Commander has particular objectives that might be important now but less important in the future. The new clause seems to me to present an overly difficult and inflexible way of moving forward.
Dame Angela Eagle
Yes.
I was going to talk about what new clause 21 suggests we should do. For example, the subsection on asylum processing seems to say that the Border Security Commander should somehow take over the duty to ensure that those who arrive illegally are processed within six months—something that the Conservatives did not achieve at all during their time in Government. I am not certain why the Border Security Commander should be empowered to take over the entirety of the asylum system.
Next, the new clause states that the commander should also be in charge of immigration enforcement, and that they should do removals as well as asylum processing and defending the border. The authors of the new clause seem to think that the Border Security Commander should be not only independent, but virtually all-seeing, all-singing and all-dancing, and that they should do absolutely everything with which the entire immigration and asylum system is currently charged. That is overreach, to say the least.
The new clause also suggests that the commander should remove people to a safe third place within six months for processing. In all their years in office, the Conservatives never managed to achieve any of those things. To put them into a new clause for a Government that has been in office for seven months—a Government who were left with the most appalling mess, with an asylum system that had crashed and had massive backlogs, and with a structure in the Illegal Migration Act that made it illegal for us to process any new arrivals who claimed asylum after March 2023—and to complain that we have not sent small boat arrivals home fast enough takes the biscuit.
Sarah Bool
I think the intention behind the new clauses, as has been identified, is to give the Border Security Commander more teeth to help him to do what he is supposed to do. Although I appreciate that behind the drafting of the Bill is a recognition that the commander might need to be reactive in future, the new clauses aim to reduce the number of illegal migrants; that is what we are all trying to tackle. When the Border Security Commander can only do things such as
“ maximising the effectiveness of the activities of partner authorities”,
“maximising the coordination” and issuing reports, it does not give us confidence that the commander has the necessary power or that we will see the results that the Government are trying to achieve.
Dame Angela Eagle
It is fairly astonishing to have a new clause that puts the Border Security Commander in charge of the entire asylum and deportation systems and asks him, in legislation, to achieve processing times that the Conservative party never achieved when they were in Government. It falls into the trap of empowering the Border Security Commander to such an extent that he seems to have to take over most of the Home Office. That is not really what we intend to do with this Bill. New clause 21 would result in a fairly astonishing increase in not only the power, but the reach of the Border Security Commander. That would be massively disruptive and would probably lead to an outcome similar to the collapse of the asylum system, of which we have had to clean up the mess.
Mike Tapp
I think the new clause is more of a political point than a constructive addition to the Bill. I am new to Parliament, but I think Bill Committees can be really useful. This new clause is far from useful, however, and there is nothing constructive in it. It is unrealistic and feels like political point-scoring.
Dame Angela Eagle
Not for the first time today, I agree with my hon. Friend. When the time comes, we will be voting against this new clause.
Katie Lam
The Minister perhaps slightly mischaracterises new clause 21. It states that the Border Security Commander should “have regard to”, not manage, the wider aims of the Home Office in securing the border. Why would the Minister not want the Border Security Commander to have regard to that?
Dame Angela Eagle
New clause 21(1)(c) talks about:
“making arrangements with a safe third country for the removal of a person who enters the United Kingdom without leave, or with leave that was obtained by deception”
and new clause 21(1)(b) mentions:
“ensuring that a decision is taken on a claim by a person under subsection (1)(a) within six months of the person’s arrival in the United Kingdom”.
If that is not asking the Border Security Commander to take over the workings of the asylum system, I am not sure I understand what the new clause is trying to do.
Katie Lam
The new clause clearly does not do that. The two points that the Minister just mentioned are part of a broader sentence that states that the Border Security Commander
“must have regard to the objectives”
in subsection (1). The new clause does not state that the Border Security Commander should do those things themselves.
Dame Angela Eagle
But how on earth could asking the Border Security Commander to have regard to those things lead him or her to deal with border security? The new clause would take away the focus in the current Home Office arrangements on immigration enforcement and the asylum system. The new clause says that the Border Security Commander must have regard to all the processes in areas of the Department they have nothing to do with. It would upend working relationships. It would make it impossible and incoherent to deliver any kind of—
Tom Hayes
This is my third Bill Committee, and so far I am really enjoying it. In all three Bill Committees, I have sensed something interesting; my understanding of what the Conservative party has been does not quite coincide with what it is today. It feels peculiar to hear Conservative Members asking for this role to have so many teeth and being so prescriptive about writing that into primary legislation. As I understand it, Conservatives typically used to try to minimise the amount of detail in primary legislation, in order to give the arms of the state the freedom to do their duties and enact their responsibilities properly.
That is particularly important when we are living through a time of significant volatility. The complications surrounding our immigration and asylum system are manifold, so we need to give this role significant flexibility in order that the Border Security Commander can co-ordinate command. I am struck by what seems to be almost an existential challenge at the heart of modern Conservative thinking.
Dame Angela Eagle
I think, Dr Murrison, you would probably not be very pleased with me if I started to talk about existential challenges at the heart of Conservative thinking, much as I would like to do so. I hope that I have given some reasons why new clause 21 should not stand part of the Bill.
Pete Wishart
I thank the Minister for her full response to some of my concerns about compliance with international obligations. Something that she did not respond to, and that I am really keen to secure her views on, is the FDA v. the Cabinet Office High Court case during the Rwanda litigation, which the Government obviously won. It seemed to suggest that any civil servant would not be bound by international obligations. Where does that leave the Border Security Commander?
Dame Angela Eagle
The Prime Minister made it clear right at the beginning of his time in office that the Government will be bound by the international obligations that we have signed up to. I hope that gives the hon. Gentleman—[Interruption.] Well, he is a sceptical man, as I would expect, but I have said what I have said about that. Is he suggesting that we should change the law as a result of the High Court?
Pete Wishart
My concern is that the judgment in that court case significantly changed our approach to international obligations and the rule of law. All I am interested in knowing is whether the Minister has any concerns, given such a significant and dramatic shift in the way successive Governments have approached these issues. Will that have any bearing on the operation of the Border Security Command?
Dame Angela Eagle
As I said earlier, the Border Security Commander and the Border Security Command will work within the confines of international obligations and human rights law.
Mike Tapp
I apologise for my lack of timely bobbing earlier, Dr Murrison. I draw attention to the Home Secretary’s statement at the very top of the Bill:
“In my view the provisions of the Border Security, Asylum and Immigration Bill are compatible with the Convention rights.”
That adds to what the Minister has said: that those in public office have an obligation to abide by the law. If they were not to do so, there would of course be legal challenge.
Pete Wishart
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Matt Vickers
If we are to have a Border Security Commander, we want an effective one who can publish a strategy without being subject to a political veto, who has priorities aligned to the UK border strategy, and whom Home Secretaries can direct agencies to follow. We wish to press the amendments to a Division.
Amendment proposed: 12, in clause 3, page 2, line 36, at end insert—
“(2A) The strategic priority document issued under subsection (2) must support the Home Office’s UK Border Strategy.”—(Matt Vickers.)
This amendment would require that the Border Security Commander’s strategic priority document supports the UK Border Strategy.
Question put, That the amendment be made.
Dame Angela Eagle
Clauses 3 and 9, taken together, outline the functions of the Border Security Commander and the directions given to the commander by the Secretary of State. Clause 3 ensures that the commander has the ability to bring partners together to provide an authoritative source of information on priority and emerging threats to border security. Through the strategic priority-setting process, the commander, working collaboratively with partners and with consent from the Secretary of State, will have the authority to issue strategic priorities on border security, to which partners must have regard. That creates a new mechanism to ensure that there is a whole of Government understanding and a collective response to border security threats.
The provisions of clause 3 recognise the varied responsibilities of partners, and deliberately ensure that the duty does not prevent partner authorities from exercising their existing constituted mandates or from setting their own wider priorities. The UK intelligence community are exempted from definition as partner authorities, in order to ensure that they can carry out their functions without constitutional conflict. However, UKIC will continue to work closely with the Border Security Command on border security matters, and arrangements are being developed, and will be agreed by the Home Secretary and Foreign Secretary, to ensure that that takes place. Such arrangements are required by clause 5.
Clause 9 builds on that by ensuring that the Secretary of State can hold the Border Security Commander to account for the delivery of improved border security outcomes. As an elected official, the Secretary of State is accountable to the Cabinet and to Parliament, and can assure that the actions of the commander are being carried out in the interests of the British public.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Duty to prepare annual reports
Pete Wishart
I beg to move amendment 2, in clause 4, page 3, line 37, at end insert—
“(c) set out how the Commander has fulfilled the Commander’s duties under section 3(1A) of this Act to have full regard to the Human Rights Act 1998 and the Council of Europe Convention on Action against Trafficking in Human Beings.”
This amendment is linked to and consequential upon Amendment 1, and would require the Commander to include in the annual report information about how they have paid due regard to the Human Rights Act and the European Convention on Action against Trafficking.
The Chair
With this it will be convenient to discuss the following:
Amendment 14, in clause 4, page 3, line 37, at end insert—
“(c) state the number of persons who have, since the later of the passing of this Act or the last annual report, been—
(i) charged with offences under sections 13, 14, 18, and 43 of this Act; or
(ii) convicted of offences under sections 13, 14, 18, and 43 of this Act;
(iii) identified as entering the United Kingdom via sea crossing without leave to remain;
(iv) detained pending deportation or a decision on deportation;
(v) deported to a country of which the person is a national or citizen; or
(vi) deported to a country or territory to which there is reason to believe that the person will be admitted.”
This amendment would place a duty on the Border Security Commander to include, in their annual report, figures on immigration crime, sea crossings, detentions and deportations.
Clause stand part.
Pete Wishart
I will not detain the Committee for long. Amendment 2 covers the same sort of terrain as my amendment 1, which sought to ensure that the Border Security Commander takes cognisance of international obligations, most notably in relation to human rights and the provisions of the European convention on action against trafficking. Amendment 2 would require the commander, when making the annual report, to make reference to his compliance, in the work that he has done, with the Human Rights Act and with ECAT. That is all I am asking. There is no good reason why that cannot be included as part of the commander’s annual accounting to the House of Commons. That would give us an opportunity to understand how part of his work has been in ensuring that those obligations have been met, and I think it would be a worthy inclusion in his annual report. I commend the amendment to the Committee.
Matt Vickers
Clause 4 would give the Border Security Commander a duty to prepare annual reports, which must state how the commander has carried out their functions in that financial year and set out the commander’s view on the performance of the border security system that year, with particular reference to the commander’s strategic priorities. That all seems very vague, and a case of the Border Security Commander being allowed to mark their own homework.
Can the Minister explain what success would look like for the Border Security Commander? What are the measurable key performance indicators that the Home Secretary will consider? That is important because the Secretary of State, as set out in clause 2, can dismiss the commander. What would constitute poor enough performance for that to happen, and what would be a success?
To try to inject some objectivity and accountability into the process of annual reports, we have tabled amendment 14. We would like the Border Security Commander to report on the number of persons who have, since the later of the passing of the Bill or the last annual report, been charged or convicted of offences under clause 13, “Supplying articles for use in immigration crime”; clause 14, “Handling articles for use in immigration crime”; clause 18, “Endangering another during sea crossing to United Kingdom”; or clause 43, “Articles for use in serious crime”. We want to know how effective the new offences will be in practice for achieving the Government’s aim of stopping illegal immigration.
The Government’s own impact assessment admits that very few people will go to prison as a result of the measures in the Bill. On the proposals to strengthen and improve the function of serious crime prevention orders, it says:
“It is estimated that between zero and three prison places, with a central estimate of one prison place will be required per year once the steady state is reached.”
On introducing an interim serious crime prevention order, it says:
“It is estimated that between 0 and 1.54 prison places, with a central estimate of 0.2 prison place will be required per year once the steady state is reached.”
On serious and organised crime articles, it says:
“It is estimated that between four and six prison places, with a central estimate of five prison places will be required per year once the steady state is reached.”
On new offences to criminalise the making, adapting, importing, supplying, offering to supply and possession of articles for use in serious crime, it says:
“It is estimated that between four and six prison places, with a central estimate of five prison places will be required per year once the steady state is reached.”
It is important to report on the new offences relating to immigration crime, which the Government think will not send a meaningful number of people to prison, and also on the new offence of endangering lives at sea, for which the impact assessment includes no estimate. Can the Minister confirm how many people the Government expect each year to be arrested, convicted and imprisoned under the new offence of endangering lives at sea?
Matt Vickers
We want to see how effective the offences will be. The Government have set that out in part, but not for the new offence of endangering lives at sea, which has great consequence.
Amendment 14 would also require the Border Security Commander to report on the number of people identified as entering the United Kingdom via sea crossing without leave to remain; how many of them are detained pending deportation or a decision on deportation; and how many are deported to a country of which the person is a national or citizen, or to a country or territory to which there is reason to believe that the person will be admitted. We believe it is important to have transparency about the role of the Border Security Commander in facilitating removals. If they are charged with minimising threats to the border, removing those who enter this country illegally with no reason to remain is a big part of successfully achieving that objective.
Mike Tapp
It is important to note that measures of success can change. Legislating for that might mean that, in a decade, we are wasting the time of the Border Security Command and its commander. My understanding of statistics and their collection is that that is for the Home Office and the Office for National Statistics. Of course, as those who are prosecuted go through the courts, we will all be able to see that.
There may also be a slight misunderstanding about what a prevention order is and what it aims to do. It is a disruptive measure that can be used before charge to stop the vile smuggling criminals from operating. If and when they go to prison, that means that they have breached that order. The fact that the estimate is low means that there is confidence in the prevention orders succeeding.
Sarah Bool
To follow up on the points of the shadow Minister, my hon. Friend the Member for Stockton West, the duty to prepare annual reports feels like a self-appraisal. Essentially, all the commander has to do in those annual reports is state how they have carried out their role and set out their view on the performance. We need some more evidence. In appraisals in any work context, it is always necessary to have the opposite feedback, but I feel that is missing here. It is not clear that there will be an opportunity to challenge the information that comes in front of the House. We really need the detail.
I worry that the fact that the Government are not prepared to require the Border Security Commander to include these details of their work in their annual report is a sign that they do not have confidence in what the commander can do, so our amendment is very important. The hon. Member for Dover and Deal said that he is worried that it will be burdensome, but I think that the information it would require is the minimum that should be provided to us. That information should be happily supplied to the House in the interest of transparency, and I am sure the Minister is keen to do that. That needs to be considered, and perhaps she will address that.
Dame Angela Eagle
Amendment 2, tabled by the hon. Member for Perth and Kinross-shire, would require the Border Security Commander to clearly outline how they have paid due regard to the Human Rights Act and the European convention on action against trafficking by including that information in the annual report that is laid before Parliament. As discussed when we debated amendment 1, the Border Security Commander will be a public authority within the meaning of section 6 of the Human Rights Act, and must act in compatibility with the human rights legislation. The commander will be aware of the risks in relation to trafficking and modern slavery through their work, and will continue to comply with the obligations, as part of the Government, under the European convention on action against trafficking in human beings. Therefore, it is unnecessary to detail explicitly that that should be in the report. That does not mean that it will not be, as the hon. Member for Perth and Kinross-shire recognised when he withdrew amendment 1. He has made his point powerfully.
Amendment 14 would create a requirement for the Border Security Commander to include in the annual report a range of statistics relating to the new offences created by the Bill, and wider relevant statistics in relation to irregular entrants who have arrived via a sea crossing, and to deportations. The amendment proposes that the annual report must state how the commander has carried out the functions of their office in the financial year, and set out the commander’s views on the performance of the border security system, with particular reference to the strategic priorities that have been set.
The clause envisages that the report will be laid before Parliament and published. That will provide public and parliamentary accountability for the work of the Border Security Commander across all threats, although the strategic priorities may change over time as the threats against which the commander will need to report evolve.
Amendment 14 in the name of the hon. Member for Stockton West is quite prescriptive about what should be in the report, and includes a range of statistics. In the UK, we have quarterly publication of immigration statistics, which are organised by the Home Office and under the code of practice of the independent UK Statistics Authority. Statistics are regularly made available about what is going on in this area. The hon. Gentleman wants such statistics to be published, under statute, in the annual report that the commander puts before Parliament but, with all due respect, I think it is important that the commander is able to write his report himself without primary legislation directing him what to put in it, especially given that those statistics are regularly made available and are well looked at and reported upon. What the hon. Gentleman is suggesting is cumbersome and would not assist in ensuring that we have parliamentary and public accountability for the commander’s performance.
The hon. Gentleman also quoted from the assessments of the number of prison places that would be created by the new crimes that we will talk about when we debate subsequent clauses. I am not sure what he does not understand about serious crime prevention orders or interim serious crime prevention orders. The idea of some of the new powers—the counter terror-style powers, which we will talk about in due course—is that they will prevent crossings and crimes from happening in the first place. They will allow the police and the National Crime Agency to intervene much earlier and to stop crime happening. In those circumstances, there may be a lesser sentence rather than a prison sentence, but lives would be saved and exploitation would be prevented. That is the nature of counter terror-style powers.
I hope that the hon. Gentleman will accept that the annual report will allow public and parliamentary accountability for the work of Border Security Command and that he will not press his amendment, as it would create too inflexible an annual report for the commander, with too much outside interference through primary legislation.
Pete Wishart
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 14, in page 3, line 37, at end insert—
“(c) state the number of persons who have, since the later of the passing of this Act or the last annual report, been—
(i) charged with offences under sections 13, 14, 18, and 43 of this Act; or
(ii) convicted of offences under sections 13, 14, 18, and 43 of this Act;
(iii) identified as entering the United Kingdom via sea crossing without leave to remain;
(iv) detained pending deportation or a decision on deportation;
(v) deported to a country of which the person is a national or citizen; or
(vi) deported to a country or territory to which there is reason to believe that the person will be admitted.”.—(Matt Vickers.)
This amendment would place a duty on the Border Security Commander to include, in their annual report, figures on immigration crime, sea crossings, detentions and deportations.
Question put, That the amendment be made.
Dame Angela Eagle
Clause 5 places a duty on partner authorities to co-operate with the commander in the carrying out of their functions. The commander is tasked with maximising the effectiveness of our collective response to border security threats, which requires a whole of Government response and will be enabled by the clause. It is recognised that partner authorities have wide-ranging functions that extend well beyond tackling border security threats. The duty set out in the clause extends only so far as is appropriate and compatible with partner authorities’ other functions. That ensures that partners across the system are working in lockstep to enhance border security, while continuing to enable the vital work undertaken by partners beyond border security matters.
Matt Vickers
Clause 5 provides that a partner authority has duties, so far as is “appropriate and reasonably practicable,” to co-operate with the commander in carrying out the commander’s functions. It would be helpful if the Minister explained what the Government mean by
“so far as appropriate and reasonably practicable”
and under what circumstances it might be justified for a partner authority not to co-operate. Does it mean, as per subsection (2), that the partner authority would co-operate only so far as the co-operation was compatible with the exercise of its other functions, or are there other circumstances where partner authorities might not have to co-operate?
Again, the clause exposes how powerless the Border Security Commander is. The commander cannot actually command any of these partner authorities to do anything at all. Subsection (3) requires those who are co-operating with the commander in the exercise of their functions to put in place arrangements governing co-operation between the commander and that person. Does the Minister have—
Data (Use and Access) Bill [ Lords ] (First sitting)
Tuesday 4th March 2025
(1 day, 19 hours ago)
Public Bill CommitteesData (Use and Access) Bill [HL] 2024-26 View all Data (Use and Access) Bill [HL] 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 4 March 2025 - (4 Mar 2025)
The Committee divided: - Ayes: 13 / Noes: 4 - Question accordingly agreed to.
The Committee divided: - Ayes: 12 / Noes: 4 - Question accordingly agreed to.
The Chair
Before we begin, I have a few preliminary reminders for the Committee. Please switch electronic devices to silent. No food or drink is permitted during sittings of the Committee, except for the water that is provided. Hansard colleagues would be most grateful if after having spoken Members could email their notes to hansardnotes@parliament.uk, or pass on their written speaking notes to the Hansard colleague in the Committee Room.
The Minister for Data Protection and Telecoms (Chris Bryant)
I beg to move,
That—
1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 4 March) meet—
(a) at 2.00 pm on Tuesday 4 March;
(b) at 11.30 am and 2.00 pm on Thursday 6 March;
(c) at 9.25 am and 2.00 pm on Tuesday 11 March;
(d) at 11.30 am and 2.00 pm on Thursday 13 March;
(e) at 9.25 am and 2.00 pm on Tuesday 18 March;
2. the proceedings shall be taken in the following order: Clauses 1 to 56; Schedule 1; Clauses 57 and 58; Schedule 2; Clauses 59 to 65; Schedule 3; Clauses 66 to 70; Schedule 4; Clause 71; Schedule 5; Clauses 72 to 80; Schedule 6; Clauses 81 to 85; Schedules 7 to 9; Clauses 86 to 103; Schedule 10; Clauses 104 to 108; Schedule 11; Clauses 109 to 112; Schedule 12; Clauses 113 to 115; Schedule 13; Clauses 116 and 117; Schedule 14; Clauses 118 to 121; Schedule 15; Clause 122; Schedule 16; Clauses 123 to 147; new Clauses; new Schedules; remaining proceedings on the Bill;
3. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 18 March.
It is a great delight to serve under your chairmanship, Mr Turner; I cannot wait to hear you tell me off repeatedly during the course of the Committee’s proceedings. In the words of Julie Andrews—this is material—
“Let’s start at the very beginning,
A very good place to start.
When you read you begin with A-B-C.
When you sing you begin with do-re-mi”,
but when you start a Bill Committee, you start with clause 1. Basically, the programme motion says, “Let’s start with clause 1 and keep on going till we come to the end.” With that said, I commend the motion to the Committee.
Question put and agreed to.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Chris Bryant.)
The Chair
Copies of the written evidence that the Committee receives will be made available in the Committee Room and circulated to Members by email.
We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room. It shows how the selected amendments have been grouped for debate. Amendments grouped are generally on the same or a similar issue. The selection and grouping list shows the order of debate and decisions on each amendment are taken when we come to the clause to which the amendment relates. Decisions on new clauses will be taken once we have completed consideration of the existing clauses.
Clause 1
Customer data and business data
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss new clause 15—Consumer Data Right: multi-sector extension—
“(1) The Secretary of State must, within 12 months of this Act being passed, publish a roadmap for implementing a cross-sector ‘Consumer Data Right’ to enable individuals and small businesses to control and share their data securely and effectively in the following sectors—
(a) energy,
(b) telecommunications,
(c) financial services, and
(d) such other sectors as regulations may specify.
(2) The roadmap under subsection (1) must set out—
(a) technical standards and data portability protocols,
(b) timelines for phased implementation in each sector,
(c) consumer protection measures, and
(d) oversight responsibilities for any designated cross-sector data regulator.
(3) In preparing the roadmap, the Secretary of State must consult relevant regulators, consumer groups, industry representatives, and any other persons the Secretary of State considers appropriate.
(4) The Secretary of State may by regulations make provision to implement the Consumer Data Right in additional sectors or extend obligations in existing ones.
(5) Regulations under this section are subject to the affirmative resolution procedure.”
This new clause would require the Secretary of State to develop and publish a roadmap for extending “smart data” portability rights beyond finance to other sectors, such as energy and telecommunications.
Chris Bryant
Strictly speaking, it is a misnomer to say that we do the Bill line by line; we do it clause by clause, or grouping by grouping. The first grouping contains clause 1 and new clause 15, which was tabled by the Liberal Democrat spokesperson, the hon. Member for Harpenden and Berkhamsted.
Clauses 1 to 26 establish regulation-making powers to implement smart data schemes. I think this part of the Bill is universally accepted, or it was in a previous version of the Bill—this is at least the third version of the Bill that a House of Commons Committee has considered line by line, clause by clause or grouping by grouping. These clauses were part 3 of the old Bill, but it is none the less important that we go through each of the clauses segment by segment, because this is a newly constituted House of Commons, with different Members and political parties, and therefore we have to consider them fully.
As many hon. Members will know, smart data involves traders securely sharing data with the customer or authorised third parties at the customer’s request. Those third parties may use the data to provide the customer with innovative services, including account management services or price comparisons. This has already been spectacularly successful in open banking.
Clause 1 defines the key terms and scope of part 1, which covers clauses 1 to 26. Subsection (2) defines the kinds of data to which part 1 applies: “customer data”, which is information specific to a customer of a trader, and “business data”, which is generic data relating to the goods, services or digital content provided by that trader. It also defines “data holder” and “trader” to clarify who may be required to provide data. That covers persons providing the goods, services or digital content, whether they are doing so themselves or through others, or processing related data.
Subsections (3) to (5) set out who is a customer of a trader. Customers can include both consumers and businesses such as companies. Subsection (6) recognises that regulations may provide for data access rather than transfer.
I commend clause 1 to the Committee and urge hon. Members to resist the temptations offered by the hon. Member for Harpenden and Berkhamsted, who tabled new clause 15. I thank her for her interest in smart data. We had a very good conversation a week ago. I am glad to be able to confirm that, following some pressure from the Liberal Democrats in the other place, the Government announced that the Department for Business and Trade intends to publish a strategy document later this year on future uses of those powers. Since the hon. Member’s new clause asks for a road map and we are saying that there will be a strategy, the difference between us may just be semantic.
The strategy document will lay out the Government’s plans to consult or conduct calls for evidence in a number of sectors. It is important that we implement those powers only after having properly spoken with relevant parties such as consumer groups and industry bodies in the sector. Clause 22 also requires consultation before commencement in any sector. As such, we think the best approach is to use powers in part 1 of the Bill to implement smart data schemes that fit the identified needs of the relevant sector. The strategy document will set out the Government’s plans for doing so. For that reason, I ask the hon. Lady to withdraw her new clause.
Dr Ben Spencer (Runnymede and Weybridge) (Con)
It is a pleasure to serve under your chairmanship, Mr Turner, and I thank all hon. Members taking part in the Committee as well as the officials. As the Minister said, this is the third iteration of this Bill and it has been extensively covered in Committee before. We rely on and thank former Members and those in the other place who worked on the Bill to get it to where it is. I am pleased that the Government are taking the Bill forward and that it is one of the early Bills in the Session.
There is much to say about the Bill that is positive, and not just because it is a reformed version of our previous two Bills. Although, ironically, the Bill does not reference the term “smart data”, clause 1 brings forward smart data and smart data schemes. That will help to open up a digital revolution, which will build on the successes of open banking in other sectors. We very much support that.
Victoria Collins (Harpenden and Berkhamsted) (LD)
It is a pleasure to serve under your chairmanship, Mr Turner. The Liberal Democrats very much support the Bill and the move towards smart data. Every single day, millions of people in the UK unknowingly generate vast amounts of data, whether they are switching energy providers, checking their bank balance or simply browsing the internet. That is why I want to speak to new clause 15.
For the past decade, we have seen the enormous benefits of open banking, which has given customers the power to securely share their financial data with new providers. That has unlocked better deals, personalised financial data and a wave of innovation. I welcome what the Minister said about a strategy, but new clause 15 explicitly seeks to extend the benefits across multiple sectors, from energy to telecoms and beyond, giving consumers and small businesses a real say in how their data is used and the chance to benefit from that.
If Linda, a business owner in Tring, wants to switch to a cheaper energy provider or broadband deal, she faces a mountain of admin and endless calls to suppliers. She has no simple way of exporting her usage data and instantly comparing deals. But what if she did? A multi-sector consumer data right, as proposed by the new clause, would give Linda the ability to export her energy usage securely to a new provider. She could use a digital tool to automatically compare plans, switch to a greener provider and save thousands in operational costs, freeing up her focus for growing a business.
However, it is not just Linda and family businesses. New clause 15 would put real power in the hands of households struggling with the cost of living crisis—an ability to break free from restrictive contracts, find better deals and ultimately reduce bills. This is not just a radical idea: Australia has already implemented the consumer data right across finance, energy and telecoms, leading to an explosion of new services, better competition and savings for consumers. The European Union is moving in that direction, yet in the UK we have not taken that step. However, I accept what the Minister said about our strategy moving forward, which I very much welcome.
New clause 15 does not demand an overnight change. It would require the road map to be published in 12 months and to ensure that technical standards are in place and data sharing is secure and efficient. It includes a phased implementation plan to bring in new sectors gradually as well as consumer protection measures so that is done safely and fairly, with public trust at its core. This is not just about giving consumers more control over their data. It is about driving economic growth and innovation. If we get this right, we can see new fintech and comparison tools so that consumers can slash bills and switch telecom providers faster and more easily. It is about more competition, more choice and more innovation. I urge colleagues to consider the new clause, but I absolutely welcome what the Minister has said. Let us take a step forward and ensure that consumers and businesses have the rights that they deserve over their own data.
Chris Bryant
We are already committed to a strategy; I am not sure whether we need a road map for the strategy, and I would prefer us not to have such a thing in the Bill. It would also be slightly limiting, as the new clause effectively gives a list of priority areas. We want to explore quite a lot of other sectors; for instance, we might make a radical difference to the gig economy if we were to look at that sector. The hon. Lady made a good point about telecoms, although it might be specifically about smart meters. If we could turn a smart meter into an actually smart meter, which would require some telecoms work, smart data might be able to deliver cheaper bills for people. Notwithstanding the fact that I like the sentiment behind the new clause, I would resist it, so I hope the hon. Lady will not push it to a Division.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Power to make provision in connection with customer data
Question proposed, That the clause stand part of the Bill.
Chris Bryant
Now we are on a winning streak. Clause 2 provides the principal authority for the relevant Secretary of State or the Treasury to establish smart data schemes in relation to customer data. The Government envisage that most smart data schemes will involve providing access to customer data. Clause 3 provides a non-exhaustive list of supplementary provisions that may be contained in regulations relating to customer data under clause 2. These include important matters such as requirements for data holders and/or third-party recipients to use specified facilities or services to ensure that smart data schemes can run effectively.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3 ordered to stand part of the Bill.
Clause 4
Power to make provision in connection with business data
Question proposed, That the clause stand part of the Bill.
Chris Bryant
Clause 4 provides regulation-making powers that allow the relevant Secretary of State and the Treasury to require the publication of business data or the provision of business data to customers or third parties. Business data is envisaged to be contextual information provided alongside customer data, such as the price of products and services, for comparison. The Government, however, do see some uses where schemes focused on business data could be appropriate.
I should briefly say that I know there are quite a few points in the Bill where we are providing regulation-making powers. Although in general, I am not a big fan of secondary legislation, because it limits the ability of Parliament to scrutinise, it is important in an area where there is rapid technological change to provide Government Ministers with the power to enact regulations. These have already been considered by the relevant House of Lords Committee as well. The purpose of clause 5 is provide a non-exhaustive list of supplementary provisions that regulations under clause 4 can contain relating to business data. The clause largely mirrors clause 3 and contains important provisions relevant to the exercise of powers relating to business data under a smart data scheme.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5 ordered to stand part of the Bill.
Clause 6
Decision-makers
Question proposed, That the clause stand part of the Bill.
Chris Bryant
This clause applies when regulations provide for a person, referred to as a decision maker, to decide whether third-party recipients satisfy conditions allowing them to be authorised by a customer to receive customer data or to act on the customer’s behalf under clause 2 or approved to receive business data under clause 4. that approach of regulating who can receive the data may not be suitable for all smart data schemes, but where it is, it will provide customers with confidence that the third parties they authorise meet approved standards. If regulations provide for a decision maker, they must also provide for the rights of those affected by decisions. These rights may include review of decisions and appeal rights to ensure transparency and accountability.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Clause 7
Interface bodies
Question proposed, That the clause stand part of the Bill.
Chris Bryant
This clause allows regulations to require the creation of interface bodies. These bodies may provide facilities and services, set standards or make related arrangements for data sharing interfaces, including application programming interfaces. Regulations may require data holders or third-party recipients to set up and fund an interface body. The role that Open Banking Ltd plays is an example of what we consider an interface body might look like under these regulations.
It is worth pointing out that the vast majority of people in this country would have no idea that smart data is what is behind their ability to have two bank accounts on one mobile phone and for the two speak to each other. There may be significant advantages for us unleashing this in other sectors as well.
Subsection (4) sets out provisions that regulations may make about the interface bodies. Among other things, regulations may confer powers on an interface body for monitoring the use of its interface, interface standards or interface arrangements. That could include powers to require the provision of documents or information subject to restrictions in clause 9, which we will come to later. Regulations may also provide procedures for complaints and enable or require interface bodies to publish or provide persons with specified documents or information relating to their functions.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Clause 8
Enforcement of regulations under this Part
Chris Bryant
I beg to move amendment 1, in clause 8, page 12, line 18, leave out “imposed by a decision-maker” and insert
“(referred to in sections 3(2) and 5(3))”.
This amendment amends a reference to conditions for authorisation or approval to receive customer data or business data so as to reflect the fact that conditions will not necessarily be imposed by decision-makers.
The Chair
With this it will be convenient to discuss the following:
Government amendments 2 to 5.
Clauses 8 and 9 stand part.
Chris Bryant
Government amendment 1 amends clause 8(5) to reflect that the conditions relating to authorisation or approval of third-party recipients will not necessarily be imposed by the decision makers who carry out the authorisation or approval. Government amendments 2, 3 and 5 amend clause 8(10) to require or allow enforcers to publish or provide documents as well as information, ensuring consistency with the powers of decision makers and interface bodies. Government amendment 4 removes unnecessary wording in subsection (10) to ensure consistency with equivalent clauses elsewhere. I commend these minor and technical amendments to the Committee.
Clause 8 enables regulations to confer powers on public bodies, known as enforcers, to monitor and enforce compliance with smart data schemes. Monitoring powers include requiring information and powers of inspection. Enforcement powers include issuing notices requiring compliance, naming and shaming non-compliance, and imposing financial penalties. Regulations may create criminal offences for falsification or similar conduct. To ensure accountability and transparency, regulations may provide for reviews of enforcers’ decisions, appeal rights, and complaint procedures.
Dr Spencer
We support technical amendments to the Bill to make sure it works properly, but I am intrigued why these amendments are necessary at such a late stage, bearing in mind the multiple layers of scrutiny that the Bill has gone through. Can he explain where he received the feedback about the necessity of the proposed changes?
Chris Bryant
As the hon. Gentleman says, these are technical changes, and sometimes we just have to go through it again and again to make sure that we have got things right. Amendment 4, for instance, was simply a matter of working out that the grammar did not really work. Sometimes, it is just a question of filleting, I am afraid, and that is what we have been doing.
Amendment 1 agreed to.
Amendments made: 2, in clause 8, page 13, line 16, after second “specified” insert “documents or”.
This amendment provides that regulations may require enforcers to publish or provide documents as well as information, making the regulation-making powers in relation to enforcers consistent with the powers in relation to decision-makers and interface bodies (under clauses 6(9) and 7(4)(k)). See also Amendments 3 and 5.
Amendment 3, in clause 8, page 13, line 18, leave out “information about” and insert—
“documents or information relating to”.
See the explanatory statement for Amendment 2.
Amendment 4, in clause 8, page 13, line 18, leave out—
“, either generally or in relation to a particular case”.
This amendment leaves out unnecessary words. Power for regulations to make provision generally or in relation to particular cases is conferred by clause 21(1)(a).
Amendment 5, in clause 8, page 13, line 20, leave out “information about” and insert—
“documents or information relating to”.—(Chris Bryant.)
See the explanatory statement for Amendment 2.
Clause 8, as amended, ordered to stand part of the Bill.
Clause 9 ordered to stand part of the Bill.
Clause 10
Financial penalties
Chris Bryant
I beg to move amendment 6, in clause 10, page 16, line 8, at end insert—
“(f) about what must or may be done with amounts paid as penalties.”
This amendment confers express power to make provision about the treatment of amounts paid to enforcers as penalties, for consistency with similar powers in clauses 11(1)(b) (fees) and 12(1)(b) (levies).
Chris Bryant
It might more sense, in explaining the amendment, if I speak about the clause first, even though we would normally take the amendment first. The clause provides safeguards on the use of financial penalties. Except where clause 16 provides otherwise for the Financial Conduct Authority, the amount of the penalty must be specified in, or determined in accordance with, the regulations. If the regulations allow an enforcer any discretion in that determination, the enforcer must publish, and have regard to, guidance. Other safeguards include an opportunity for representations before penalties are imposed, and rights of appeal to a court or tribunal. Regulations may provide for increase of the penalty in the case of late payment.
Government amendment 6, which is minor and technical for some of the same reasons I adverted to earlier, enables regulations to make provision about what is to be done with any amounts that are paid as part of clause 10. That is consistent with provisions on fee and levy receipts in clauses 11 and 12. This is another bit of tidying up of the previous version of the Bill.
Amendment 6 agreed to.
Clause 10, as amended, ordered to stand part of the Bill.
Clause 11
Fees
Question proposed, That the clause stand part of the Bill.
Chris Bryant
Clause 11 enables decision makers, interface bodies, enforcers and others to charge fees to alleviate their costs, which is obviously an important part of the Bill. It may also enable data holders to charge fees. Except where clause 15 provides otherwise for the Financial Conduct Authority, the fee amounts must be specified in, or determined in accordance with, the regulations. If the regulations allow a person to make that determination, they must publish information about the fee and how it is determined. Fees can only be charged on those directly affected by the performance of the relevant functions. That would include data holders, customers and third-party recipients. Regulations may also provide for fees to increase periodically—for instance, to cater for inflation—and for charging interest on and recovering unpaid fees.
Clause 12 enables regulations to impose a levy on data holders or third-party recipients or allow a specified public body to do so. The purpose is to meet costs incurred by bodies performing functions under the regulations and avoid costs to the taxpayer. The levy may be imposed only on persons directly affected by the performance of those functions. If the regulations allow a public authority to impose the levy, the regulations must provide how the rate of the levy and the period in which it is payable are to be determined. The public authority must also publish information about what it determines. The regulations may also make provision for charging of interest and recovery of unpaid amounts.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12 ordered to stand part of the Bill.
Clause 13
Financial assistance
Question proposed, That the clause stand part of the Bill.
Chris Bryant
The purpose of the clause is to allow the Government to provide financial assistance where it is appropriate to do so. Although the Government expect schemes to be self-financing, as I have referred to, it is important to have statutory spending authority as a backstop where needed, and that is precisely what clause 13 provides.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Clause 14
The FCA and financial services interfaces
Chris Bryant
I beg to move amendment 7, in clause 14, page 19, line 3, at end insert—
“(ba) requiring section 2(4) actors described in the regulations to use a prescribed interface, comply with prescribed interface standards or participate in prescribed interface arrangements when taking, facilitating or doing other things in connection with relevant financial services action;”.
This amendment provides that the Treasury’s powers to confer rule-making powers on the Financial Conduct Authority in connection with the use of interfaces include powers relating to the use of interfaces when taking action described in clause 2(4) of the Bill (persons authorised to receive customer data taking action on behalf of customers). See also Amendment 9.
The Chair
With this it will be convenient to discuss the following:
Government amendments 8 and 9.
Clauses 14 to 17 stand part.
Chris Bryant
Again, it might be more convenient if I speak to the clauses first and come back to the amendments, because then it is more self-explanatory, but I may need to speak at greater length here.
Open banking has revolutionised the UK retail banking sector by enhancing competition and introducing innovative services. Establishing a long-term regulatory framework for open banking will pave the way for its future growth, and this framework will rely on the FCA having the powers necessary for effective regulation and oversight. Clause 14 therefore empowers the Treasury to enable or require the FCA to set rules for interface bodies and participants in smart data schemes, ensuring compliance with essential standards. Clause 15 sets out further detail about the regulation-making powers conferred on the Treasury by clause 14.
These provisions create a clear framework for delegating rule-making powers, ensuring effective regulation, proper funding and mechanisms to address misconduct by scheme participants, with clear objectives for the FCA’s oversight of smart data schemes. Regulations may enable or require the FCA to impose interface requirements relating to an interface body, as set out for the smart data powers more broadly in clause 7, and to require fees to be paid by financial services providers to cover interface body costs.
Clause 15 further provides that such regulations must impose certain requirements upon the FCA, including a requirement, so far as is reasonably possible, to exercise functions conferred by the regulations in line with specified purposes, and a requirement that the FCA must have regard to specified matters when exercising such functions. Additionally, regulations under clause 15 may empower or require the FCA to impose requirements on individuals or organisations to review their conduct, to take corrective action and to make redress for loss or damage suffered by others as a result of their conduct.
Clause 16 covers the Treasury’s ability to make regulations enabling the FCA to impose financial penalties and levies. The regulations may require or enable the FCA to set the amount or method for calculating penalties for breaches of FCA interface rules. The regulations must require the FCA to set out its penalties policy, and may specify matters that such a policy must include. Additionally, the Treasury may impose itself, or provide for the FCA to impose, a levy on data holders or third-party recipients of financial services data under the scheme to cover its regulatory costs, with the funds being used as specified in the regulations. Only those capable of being directly impacted should be subject to the levy.
Penalties and levies are a necessary part of smart data schemes, including in financial services, to allow the FCA to penalise non-compliance and recover the costs of its regulatory activities. The clause ensures that any penalties or levies are subject to proportionate controls.
Clause 17 gives the Treasury the power to amend section 98 of the Financial Services (Banking Reform) Act 2013 through regulations. This will allow the Treasury to update the definitions of the FCA’s responsibilities and objectives in that section, so they can include new functions or objectives given to the FCA by regulations made under part 1 of this Bill. That will ensure that the FCA’s new duties fit into the existing system for co-ordinating payment system regulators, helping maintain a consistent approach across the financial sector. Regulations made under the clause will be subject to the affirmative procedure.
We have tabled Government amendments 7 to 9 to ensure that the Treasury may delegate to the FCA powers to set rules for action initiation, as well as data sharing. We think this is vital to ensure that open banking continues to work properly and is in line with the policy as set out elsewhere.
Dr Spencer
I apologise, Mr Turner: I misspoke earlier with regard to our position on the Government amendments. Rather than offering positive support, I meant to say that we will not oppose the technical amendments.
What does the FCA think about these amendments? Has the Department consulted the FCA?
Chris Bryant
I am not sure whether we have specifically—I am looking to my left for inspiration. I am getting vague inspiration, although it is remarkably non-productive. If the hon. Member would like to intervene for a little longer, perhaps I will be able to be more inspired.
Dr Spencer
I thank the Minister for giving way. I appreciate that it is a technical question and I hope he is able to give a response. Equally, I appreciate that he may have to write to me in due course. I see that there are papers coming his way.
Chris Bryant
To quote Richard II, methinks I am a prophet new inspired. Yes, this is all based on a consultation with the FCA. The FCA is content with us proceeding in this direction. I hope that, on that basis, the shadow Minister—I am trying to differentiate between his not opposing and supporting, but I think on the whole in Parliament, if you are not against us, you are for us. I think in this measure he is for us.
Chris Bryant
The clause will ensure that public authorities given powers under part 1 are not liable in damages for their acts or omissions in exercising their functions. That mirrors the exemption from liability for the Financial Conduct Authority under the Financial Services and Markets Act 2000, and allows public authorities to carry out their functions effectively. However, regulations cannot remove liability for things done in bad faith or which are unlawful under the Human Rights Act 1998.
Question put and agreed to.
Clause 18 accordingly ordered to stand part of the Bill.
Clause 19
Duty to review regulations
Question proposed, That the clause stand part of the Bill.
Chris Bryant
I know all Members of the Committee were wondering, “When are we going to review all of these provisions?” Fortunately, we have reached a clause that requires review of the regulations at least at five-yearly intervals. The Government recognise the importance of ongoing scrutiny of regulations. As part of a review, the regulation maker must consider whether the regulations remain appropriate—which seems rather basic, but anyway. The findings of the review will be published in a report laid before Parliament. This will uphold our commitment to transparency in the creation and maintenance of future regulations.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Restrictions on processing and data protection
Question proposed, That the clause stand part of the Bill.
Chris Bryant
Clause 20 allows regulations to provide that the processing of information they require does not breach obligations of confidence or other restrictions on processing information. However, regulations cannot compel businesses to breach data protection legislation. This mirrors the approach taken towards pensions dashboards in the Pensions Act 2004.
Clause 21 outlines further provisions that regulations may contain. Those include references to published standards and technical requirements, and the conferral of functions. The clause allows the part 1 powers to be used flexibly and tailored for their purpose. It also prevents regulations from enabling a person to set the maximum amounts of fines, financial penalties or fees, which adds to the safeguards in clauses 10 and 11. Finally, the clause stipulates when regulations can amend primary legislation to support consumer redress.
Clause 22 ensures that the regulations are properly scrutinised and requires that certain regulations be subject to affirmative parliamentary scrutiny. Those include regulations that introduce smart data schemes or make them more onerous, contain enforcement provisions and impose fees or a levy, as well as regulations under the financial services sector clauses. The clause also requires appropriate consultation before the regulations are made.
Clause 23 clarifies that part 1 powers may be used to amend existing subordinate legislation dealing with equivalent subject matter, rather than creating stand-alone regulations. This provision could be used to amend existing data-sharing requirements such as open banking provisions in the Payment Services Regulations 2017.
Clause 24 repeals sections 89 to 91 of the Enterprise and Regulatory Reform Act 2013, which part 1 of the Bill replaces. The powers in the 2013 Act are no longer adequate to enable the introduction of effective smart data schemes. That was recognised in the previous iterations of this Bill under a previous Government, and we agree.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Clauses 21 to 24 ordered to stand part of the Bill.
Clause 25
Other defined terms
Question proposed, That the clause stand part of the Bill.
Chris Bryant
I thought that this discussion might take a little longer. Much as I am tempted to dally on clauses 25 and 26, clause 25 basically defines various terms used in part 1 of the Bill, and clause 26 provides an index of terms used in part 1, including those defined in clause 25, so I do not think my heart is in the business of doing so. Without further ado, I urge that clauses 25 and 26 stand part of the Bill.
Question put and agreed to.
Clause 25 accordingly ordered to stand part of the Bill.
Clause 26 ordered to stand part of the Bill.
Clause 27
Introductory
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss new clause 9—Right to use non-digital verification services—
“(1) This section applies when an organisation—
(a) requires an individual to use a verification service; and
(b) uses a digital verification service for that purpose.
(2) Where it is reasonably practicable for an organisation to offer a non-digital method of verification, the organisation must—
(a) make a non-digital alternative method of verification available to any individual required to use a verification service; and
(b) provide information about digital and non-digital methods of verification to those individuals before verification is required.”
This new clause would create a duty upon organisations to support digital inclusion by offering non-digital verification services where practicable.
Chris Bryant
Part 2 of the Bill is about digital verification services. Those are obviously a very important part of the Bill; they lay out how we want to move into a new era and they are essential to many businesses being able to deliver their services effectively. They are also important to the Government being able to deliver some of the things we hope for—in terms of greater productivity in the delivery of services—and, frankly, to turning Government-provided services into services that feel as intuitively available and accessible as those provided by the private sector.
Clause 27 defines digital verification services and sets out the scope of provision in part 2, which runs from clauses 27 to 55, to help secure their reliability. New clause 9, which we will hear about in a few moments, has been tabled by the hon. Member for North Norfolk. It would require organisations to offer non-digital verification services where practicable. The provision would change the voluntary nature of part 2 by imposing new obligations on businesses.
I fully support the idea of digital inclusion, which is why as the digital inclusion Minister I introduced our first action plan last week; we are the first Government to bring one forward in 10 years. However, we believe that the new clause is unnecessary because we are already prioritising digital inclusion. The office for digital identities and attributes will monitor the inclusivity of certified services, and include findings in the annual report that must be published under clause 53, which we will come to later.
In addition, there are already legislative protections in the Equality Act 2010 for protected groups. If in future the Government find evidence suggesting that regulatory intervention is appropriate to ensure that individuals have equal access to services across the economy, then we will consider appropriate intervention. I reassure the House that digital inclusion is a high priority for the Government, which is why we have set up the digital inclusion and skills unit within the Department for Science, Innovation and Technology, and why just last week we published the digital inclusion action plan, setting out the first five immediate steps we are taking towards our ambition of delivering digital inclusion for everyone across the UK, regardless of their circumstances.
We want to be able to deliver as many services digitally as possible, in a way that is fully accessible to people. However, we also accept that many people are not engaged in the digital world, and that there must also be provision for them. For those reasons, I hope the hon. Member for North Norfolk feels comfortable not pressing his new clause to a vote.
Dr Spencer
Digital verification services are important, and will make a big change when rolled out as part of this legislation. The provision is entirely right, particularly on the proportionality of data disclosure. Reading through some of the various reports and briefings we have received, the example used is of someone going into a nightclub: why should a scanned copy of their driving licence be consumed and contained by whoever the data holder is, when all they need to do is prove their age? These services will open the door to allow the proportionate disclosure of data. There is a both a data assurance component and a section on privacy, so we are glad that the Government are taking these measures forward.
I sympathise with the intention of new clause 9, in the name of the hon. Member for North Norfolk, which is to make sure that we do everything we can to support people who are digitally excluded. That ensures that people are not locked out and that there is a degree of reciprocity, so that as we digitalise more, the opportunity remains for people to access non-digital base services. I am not sure about the scope of the binding duty in the provision and about how the duties on small providers, as opposed to a duty on public service providers, play out politically. I think those are different things. Nevertheless, I support the sentiment of the new clause.
Steff Aquarone (North Norfolk) (LD)
It is a pleasure to serve under your chairship, Mr Turner. Don’t get me wrong: there are huge opportunities to improve the seamlessness of services for all users, regardless of whether they access those services digitally or not. Through new clause 9, I want to establish a right for those who do not wish to or cannot use digital identification within the verification framework that the Bill creates. The amendment was also tabled in Committee in the other place by the noble Lord Clement-Jones, and I am pleased to bring it before this House, too.
Chris Bryant
I note the comments from the shadow Minister, and I am grateful for them.
There is a fundamental flaw in the argument from the hon. Member for North Norfolk that this new clause was tabled in the House of Lords, because what he means is that it was lost in the House of Lords—the House of Lords did not bring it to us. There is a second flaw in the argument, which is that it seems to presume that people will be required to use a digital verification service. That is not true. People will be able to use non-digital systems if they want to in every circumstance. That is an essential part of being able to take forward digital verification services. It may be that a growing number of people begin to find them more useful, reliable and trustworthy than carrying around a set of papers. I am sure that many of us have gone through the tedious process of renting a car—having to turn up with copies of the previous three months of bills sent to your house, and all that. They have to be printed out, of course, and not provided in digital form, and so on. In the end, therefore, this measure will be transformational for the vast majority of people, but that does not mean that we should exclude people.
Where the hon. Member for North Norfolk is absolutely right is that there are many different patterns of digital exclusion. One, which I am very conscious of from my own constituency in south Wales, is physical digital exclusion. Many people in the south Wales valleys simply do not have the physical digital connections, a mobile phone or whatever it may be, to be able to transact their business. The second is the simple issue of poverty. Social tariffs do not even touch the edge for lots of families, because it is yet another bill. Even another £10 or £15 bill a month is one that has to compete with whether they have fresh food on the table for the kids. Another level where people might be excluded relates to age, at the top end and at the bottom end. The hon. Member mentioned nonagenarians, but he could go down to 60-year-olds and find people who simply do not want to use open banking or any kind of digital system, do not have a smartphone and have absolutely no intention of getting one, or, for that matter, do not have any kind of broadband connection to their home. I understand that fully, and that is why the Bill is written as it is, so that it is permissive and not mandatory.
That is an important reason why—although I have listened to the arguments that the hon. Member for North Norfolk has repeated from Big Brother Watch—I am determined to do everything we possibly can to tackle each and every one of the issues of digital exclusion. I have not even referred to skills—people might have some form of disability, might have simply never acquired or wanted to acquire digital skills, or might find using a screen particularly difficult for whatever set of reasons. We want to tackle every single form of digital exclusion, but I do not think that this is the place to do so. We will not be able to tackle digital exclusion by putting an additional measure in the Bill, and that is why, if the hon. Member wants to push this to a vote, I will still resist his new clause. I commend the clause as drafted to the Committee.
Victoria Collins
The Minister says that the proposal for digital verification services is not mandatory, so a non-digital version will be available for people to use. May I check what the guarantees are? We have seen this with card payments and even the banks—in Harpenden, we lost all our banks, apart from Nationwide. A very big team campaigned to get a banking hub, because a lot of people said, “You can either go online or drive many miles to get to a bank.” I want to understand what guarantees are in place to secure that non-digital version.
Chris Bryant
It is simply that there is no requirement for people to use a digital verification service to be able to secure the service that they want. Obviously, that is a key part of how local government or Government have to deliver their services. They have to think not only about the people who can use digital services, but about those who cannot, for all the reasons that we have laid out.
The hon. Member for Harpenden and Berkhamsted is absolutely right about banks, and it is not just in Harpenden; I do not have a bank in my constituency. I have seen them go one after another after another. We have a banking hub, but even it has had to move. That provides all sorts of difficulties for people who do not want to do their banking in any way other than physically going into a bank. That is why both our Government many years ago, then the Conservative Government for years, were trying to encourage people to use the post office as an alternative means of doing their banking.
That is the pattern that we will have to adopt. Government will always have to be aware. While we may want all the productivity gains and the added security that digital verification services can provide, none the less we need to ensure that others are provided for. That is all provided for in the Bill, and I would say adequately, although the hon. Member may disagree with me. Yet again, I am still resisting any amendment and urge that the clause stand part of the Bill.
Victoria Collins
I thank the Minister for his reply, and I do understand. I will leave what happens with new clause 9 to my hon. Friend the Member for North Norfolk, but it is important to state that we have seen a pattern, as my hon. Friend mentioned, of rights being taken away when we know that people cannot access services, and then the problem being solved after it was created. We need to think about a way to secure non-digital services, whether in respect of public services and council tax, our banks, or whatever it is. The Government need to think about how we can protect those services, whether through this Bill or something else, to ensure that those who are excluded can still access a non-digital version of services.
Chris Bryant
Even without inspiration, I agree with everything the hon. Lady said. I would add the fact that to park a car in lots of places in the country now we have to go online using a smartphone. When I was in Cardiff recently, the sign said “Go to the app”, but it did not say which app. What frustrates me is that every local authority in the land seems to have adopted a different app, so if we park in more than one local authority area, we have to download app after app, upload all our card details and all the rest of it.
I hope to God that one of the things smart data might be able to solve is the issue of different apps for parking, because the car does not change, we do not change and our banking details do not change; the only thing that changes is our location. To achieve that, though, we must also address the issue of digital exclusion. Lots of areas simply do not have a download speed of 5 megabits per second for mobile coverage, even though Ofcom probably suggests that there is 99% coverage in all areas from all four operators. My problem is that the new clause tries to correct many deficiencies in society, none of which has anything to do with digital verification services.
Steff Aquarone
I am well aware of the Minister’s frustration with mobile parking apps and I sympathise. Likewise, there is the frustration of having to take two separate bits of physical ID to a bank branch on two separate occasions to get a simple credit card approved. However, I cannot agree with the Minister’s accusation that new clause 9 tries to solve the entire universe. I remind him of what we have seen in practice when rights to alternatives are not enshrined. The reality is that if the rights to non-digital identification and verification are not enshrined in the Bill, the options and competitiveness of the options for those who do not or are unwilling to use digital verification will reduce.
Chris Bryant
The thing is, it is already enshrined in law under the Equality Act 2010. That is perfectly adequate for the purposes of the Bill—it protects all the characteristics that the hon. Gentleman referred to, including age—so I urge him not to pursue his new clause.
Question put and agreed to.
Clause 27 accordingly ordered to stand part of the Bill.
Clause 28
DVS trust framework
Chris Bryant
I beg to move amendment 10, in clause 28, page 30, line 32, leave out subsections (3) and (4).
This amendment removes subsections which were inserted at Report stage in the Lords.
Chris Bryant
We will be talking about clauses 28 to 31, but now I will speak to Government amendment 10 to clause 28, along with Government amendment 11. Several Members may wish to speak to this issue.
Government amendment 10 removes subsections (3) and (4) of clause 28, which were added on Report in the House of Lords. The subsections require the Secretary of State, when preparing the digital verification service trust framework, to assess whether certain listed public authorities reliably verify personal data. This seems very dry, but it is a clear and specific issue. The trust framework provides rules for digital verification services, not rules for how public authorities process data. Data protection legislation already requires public authorities to ensure that any personal data they process is accurate and, where necessary, kept up to date. As such, the Government cannot proceed with the change introduced in the Lords as it would duplicate existing legislation and bring in matters that are out of scope of the trust framework.
The Chair
Before I call the shadow Minister, I want to clarify that amendment 11 is in this group, but a decision on it will be taken when we get to clause 45.
Dr Spencer
Amendments 10 and 11 seek to remove certain provisions that were introduced in Committee in the other place. I thank Sex Matters for its work, but also many people in this policy area who have tried to focus on the importance of data accuracy and validity when it is used.
I hope we all agree that it is important that data, when it is collected—in fact it is a principle of data collection and maintenance—is accurate and correct and that there is no point holding or using data if it is incorrect. Biased data is worse than no data at all. Therefore, I do not understand—especially given the extra use of the data that will come as part of digital verification services—why the Minister and the Government are not keen on the provision to stipulate that public bodies that hold sensitive data should be certain of its accuracy, particularly when the data is going to be passed on and used as part of digital verification services. I am confused by the resistance to ensuring that the data is correct, particularly when we anticipate that it will be used as part of a far bigger spectrum. It will be consumed by a digital verification service in which it is not routine to go back and look at the original paper records. The only dataset to be relied on will be some Oracle Excel spreadsheet or whatever database is used by public authorities.
This debate has become more acute with regard to the importance of sex data. It is critical that sex data is available to protect public spaces and to be used in scientific research to allocate someone’s sex as part of medicine and healthcare. I speak as a former doctor, and I guess I should declare an interest in that I am married to a doctor. The use of sex data is critical in medical screening programmes, such as cervical screening and prostate screening, to understand and interpret investigations. It is critical that the data is accurate; otherwise, there is a danger that research will not be appropriate or will produce bad results, and there is also a potential degree of medical harm. It is critical that we get sex data correct when it is being used.
I do not agree with the argument that requiring the disclosure of sex data is either disproportionate or somehow a breach of the European convention on human rights. The whole point of digital verification services is proportionate disclosure. In fact, we have heard speeches from both sides of the Committee about proportionate disclosure, and limiting the amount of personal data that is passed on as part of a digital verification service.
My challenge is, quite simply, that if somebody is collecting sex data as part of a verification system, why are they doing so? If they do not need to know what someone’s sex is, it should not be collected. Digital verification services allow people to choose their proportionate disclosure. There will be times when sex data is required for renting a property—that example has been used before—because people may want to rent properties in single-sex accommodation. I may argue that is a proportionate disclosure. If it is a standard rental property in another situation, it is probably a non-proportionate disclosure. Another argument has been made that it is needed to triangulate data to verify ID. Again, that does not seem to work, because the whole point of a digital verification service is to allow someone to have a digital ID framework and use different points to verify.
The perversity of this debate is that these schemes and their proportionate disclosure protect people’s identities. They protect people from non-disproportionate disclosure. We need to make sure that the data we are using is accurate and correct, and that it says what we want it to say when someone is inquiring about somebody’s sex. If somebody is asking for sex data but they do not need it, people should be able to say no, which the existing provisions allow for.
Dr Spencer
What is the point of politics if we do not have a debate? We strongly disagree with the interpretation that the provisions are somehow incompatible with ECHR rights. They totally support people’s privacy rights under article 8 regarding proportionate disclosures. If somebody needs to have someone’s sex data, they need sex data. They do not need gender data. The provisions allow for it, and if somebody does not need sex data, they should not be collecting it in the first place.
Joe Robertson (Isle of Wight East) (Con)
It is an honour to serve under your chairmanship, Mr Turner.
Further to the comments made by my hon. Friend the Member for Runnymede and Weybridge, does the Minister at least accept that the Bill poses a risk of entrenching inaccurate data relating to sex through public bodies using DVS systems? Notwithstanding his views on the Lords amendments, could he address that point? What steps will the Government take to ensure the reliability of sex data to ensure protection, such as of women using female-only spaces? What will the Minister do to ensure that inaccurate data entrenched by the Bill will not pose a risk to people in those situations and others? I am thinking, of course, of services available in healthcare, but that is by no means the only example.
Chris Bryant
I need to make it absolutely clear, for a start, that the element of clause 45 that we are removing—subsection (6)—makes no reference to sex or gender at all. The words do not appear on the face of the Bill at all. Subsection (6) refers to accuracy and inaccuracy, but it says
“the public authority is able to attest that it…has been corrected through a lawfully made correction,”
and that is obviously aiming at a particular form of lawfully made correction.
Public authorities are already bound in law by data protection legislation—this goes to the point that the hon. Member for Isle of Wight East just made—to ensure that the personal data they process is accurate and, importantly, that it is accurate for the purpose for which it is being processed, and that it is kept up to date where necessary. In essence, what the noble Lords’ amendments to the Bill did was say that we should also be keeping, in every instance, a history of what the data had been. That, I think, is problematic.
The hon. Member is absolutely right about wanting to preserve women-only spaces, which is why public authorities are required to process information that is accurate for the purpose for which it is being processed. In the delivery of healthcare, for instance, when it comes to health screening for transgender and non-binary individuals, the Department of Health and Social Care has comprehensive guidance that sets out the NHS default adult screening programmes that are available in England and lays out who is invited. In England, it is up to GPs to ensure that, as part of processing gender change, the individual is correctly registered for relevant screenings in relation to their sex.
I simply do not buy this argument that we need to make this provision in relation to all digital verification services. Although it is of course right that, in the delivery of prison services or in the health service, or in so many other areas, simple common sense should apply in relation to female-only spaces and wanting to make sure that women are safe, I do not think that this Bill on digital verification services benefits from the introduction of a measure that would effectively mean that in the provision of every digital verification service—whether in regard to the provision of some sensitive service or not—you should make this provision. That is why we tabled amendments 10 and 11, and I urge all hon. Members to support them.
Victoria Collins
The Liberal Democrats support the Government amendments. As the Minister highlighted, the amendments are about proportionality in digital verification services. For Liberal Democrats, it is about the balance between trust and helping to protect privacy, as well as getting the data needed to make our society better. We believe that the original proposal had the proportionality right, so we will support the Government’s amendment.
Question put, That the amendment be made.
Chris Bryant
Clause 28 requires the Secretary of State to prepare and publish the digital verification service framework, which will set out rules for the provision of digital verification services for providers that want to be certified and appear on a Government register. The rules will draw on existing technical requirements, standards and best practice, and guidance and legislation. They will help organisations to provide services in a trusted and consistent way, and enable inter-operability and increasing public confidence.
The clause allows the Secretary of State to revise and republish the trust framework as the market evolves. The requirement to consult the Information Commissioner and others whom the Secretary of State considers appropriate will ensure the trust framework’s development is informed by industry expertise and the wider regulatory environment.
Clause 29 allows the Secretary of State to prepare and publish supplementary codes. The codes will be relevant to sectors that require rules to cater for their specific requirements around identity checks, supplementary to those in the DVS trust framework. For example, additional rules are needed when proving someone’s right to work in the UK. By working with those operating in such sectors, the Secretary of State can identify market and user needs for these codes, and that will help to encourage digital identity adoption across the wider economy. The requirement for the Secretary of State to consult the Information Commissioner and others as appropriate when preparing a supplementary code should also ensure that those needs are taken into account in its development.
Clause 30 allows the Secretary of State to withdraw a published supplementary code if, for example, it is no longer required or is outdated. The Secretary of State will need to publish his determination to withdraw a supplementary code and allow at least 28 days before its withdrawal.
Clause 31 requires the Secretary of State to carry out a review of the digital verification service trust framework and any published supplementary code at least every 12 months. When doing so, the Secretary of State should consult the Information Commissioner and anyone he or she considers appropriate. This review will ensure that the body of rules governing digital verification services keeps up to date with the digital identity market, and is fit for purpose as that market evolves.
Question put and agreed to.
Clause 28, as amended, accordingly ordered to stand part of the Bill.
Clauses 29 to 31 ordered to stand part of the Bill.
Clause 32
DVS register
Question proposed, That the clause stand part of the Bill.
Chris Bryant
These clauses are all about the digital verification service register. Clause 32 requires the Secretary of State to establish and maintain a publicly available register of digital verification service providers, which is called the digital verification service register. This duty will ensure that people can look up which digital verification service providers have met the requirements to join the register, making it easier for people to know which providers can be trusted and to realise the benefits of this technology with confidence.
Subject to limited powers of refusal in clause 34, clause 33 requires the Secretary of State to register a digital verification service provider if it applies to appear on the register and if it holds a certificate from an accredited conformity assessment body confirming its digital verification service is compliant with the digital verification service trust framework. In practice, this means that in applying to join the register, a provider must have its service certified against the trust framework by a body that has been independently accredited by the UK Accreditation Service. The digital verification service provider must also have made an application in accordance with requirements made by determination under clause 39 and paid any relevant fee, as set out in clause 39. This provides confidence to users and businesses that only those digital verification services that meet these conditions will appear on the digital verification service register.
Clause 34 grants the Secretary of State the power to refuse applications to the digital verification service register in two circumstances: first, where he considers it necessary to do so in the interests of national security or, secondly, where he is satisfied that the provider is not compliant with the trust framework. Before a refusal, he must provide written notice of his intention, informing the provider of his reasons and of the opportunity to make representations. He need not share reasons on national security grounds where to do so would be contrary to those interests. Those powers will act as a backstop, allowing the Secretary of State to stop bad actors—I always worry about that term, thinking about actors who have appeared in movies that I have not liked—entering the system in circumstances where, for example, he has intelligence that conformity assessment bodies do not. That should increase confidence that registered DVS providers are trustworthy and secure.
Clause 35 allows registered digital verification service providers to have multiple certified services listed in the digital verification services register. The provider must apply for the Secretary of State to amend its register entry to accommodate this. This is largely a technical provision to ensure that the register can operate appropriately and seamlessly when providers offer more than one service that is certified against the trust framework.
Clause 36 provides for a registered provider to apply to the Secretary of State to add a supplementary note to their entry in the register if its service is certified against the supplementary code, its application complies with any requirements set out in a determination under clause 38, and it has paid any required fee. Supplementary notes will make it easy for people and businesses to see which registered digital verification services are certified against the rules of the supplementary code, so that they can find a trusted service that meets their needs.
In the same way that clause 35 allows registered digital verification service providers to have multiple certified services listed in the register, clause 37 allows providers with multiple services certified against the supplementary code to have that information suitably noted in the register. The digital verification service provider must apply to the Secretary of State to have its supplementary note amended to accommodate this. This technical requirement ensures that the register can operate appropriately and seamlessly when DVS providers offer more than one service that is certified against both the trust framework and a supplementary code.
Finally, clause 38 makes provision for the Secretary of State to determine the form of applications to the register and supplementary notes, the information that needs to be contained in the application, the documents to be provided and the manner in which is to be submitted. He must publish this determination, which will ensure that the requirements are clear for digital verification service providers who wish to make an application. For the same reason, if he revises the determination at a later time, this must also be published.
Question put and agreed to.
Clause 32 accordingly ordered to stand part of the Bill.
Clauses 33 to 38 ordered to stand part of the Bill.
Clause 39
Fees for applications for registration, supplementary notes, etc
Question proposed, That the clause stand part of the Bill.
Chris Bryant
The clause provides for the Secretary of State to make regulations regarding the payment of fees for applications to the register and applications for supplementary notes. The regulations will be subject to the negative procedure. The fees can be set at a level higher than the administrative costs of determining applications or those associated with the DVS providers’ ongoing registration in the DVS register. This is to help ensure that fees may cover the total operating costs relating to governance, which includes functions such as publishing an annual report and keeping the trust framework up to date.
The Government amended clause 39 from the original Bill that was introduced prior to the general election in response to a recommendation from the Delegated Powers and Regulatory Reform Committee so that these fees are set by regulations instead of determination. This ensures that any fees the Secretary of State may wish to charge for these applications are subject to parliamentary scrutiny.
Question put and agreed to.
Clause 39 accordingly ordered to stand part of the Bill.
Clause 40
Duty to remove person from the DVS register
Question proposed, That the clause stand part of the Bill.
Chris Bryant
Clause 40 requires the Secretary of State to remove a digital verification service provider from the digital verification service register in the following circumstances: when that provider asks to be removed; if it stops providing all services for which it is registered; or if it no longer holds a certificate for at least one of these services. This duty ensures that the Secretary of State acts to uphold the digital verification service register in these circumstances to uphold trust and confidence in it.
Clause 41 allows the Secretary of State to remove a digital verification service provider from the digital verification service register if it is not compliant with the trust framework or a supplementary code; if it fails to provide information in response to a clause 51 written notice; or if removal is necessary in the interests of national security. Before removal, the Secretary of State must provide written notice informing the provider of reasons for removal and the opportunity to make representations. Reasons need not be given where this would be contrary to national security interests. These powers will help ensure that the register lists only certified services and that the Secretary of State can act to remove services where necessary, providing confidence in its accuracy.
Clause 42 requires the Secretary of State to remove a service from the digital verification service register if the digital verification service provider requests removal; if it ceases to provide one or more of those services, but not all of them; or if it no longer holds a certificate for all those services. Similar to clause 41, these duties provide confidence to people and businesses that the digital verification service register can be trusted as an accurate source of information. Whereas clauses 40 and 41 cover removal of a digital verification service provider as a whole, the clause 42 duty enables the Secretary of State to remove one or more services, should a digital verification service provider have more than one service registered and one or more, but not all, those services no longer meet the digital verification service register’s conditions.
Clause 43 requires the Secretary of State to remove a supplementary note from the digital verification service register if the digital verification service provider requests its removal; if it ceases to provide all the services to which the note relates; if it no longer holds a certificate for at least one of those services; or if the supplementary code to which the note relates has been withdrawn. This is a technical requirement to ensure that changes in certification and provision of multiple services in accordance with supplementary codes are accurately reflected for digital verification service providers, upholding confidence that the digital verification service register can be trusted as an accurate source of information.
Chris Bryant
The clause creates a permissive information gateway. This will enable public authorities to share information relating to an individual with registered digital verification services, when requested by the individual. The gateway enables digital identity checks to be made against public authority data, thereby increasing the trustworthiness of identity and eligibility checks across the economy.
Clause 45 also makes it clear that the power does not authorise disclosure of information that would breach the data protection legislation or the Investigatory Powers Act 2016. However, disclosure of information under the clause would not breach any obligations of confidence owed by the public authority or any other restrictions on the disclosure of the information. The clause also enables public authorities to charge a fee for the disclosure of information under the clause.
Dr Spencer
I am not going to rehash the previous debates. Clearly, the Committee has made its decision, no matter how disappointing that is. I just wanted to pick up the Minister’s previous point about the use of common sense in arbitration decisions when it comes to access to protected same-sex spaces. I fully support using common sense, but how does that play out in a situation where somebody has gone through a digital verification service that has used data that is held by a local authority, but that has been changed at a later date—that is, in effect, gender data? How will that be resolved?
Chris Bryant
I think that I will have to write to the hon. Gentleman. We have agreed the amendment, so that is slightly rehashing the debate. I am happy to write to him and he will have that before we come back for Thursday’s Committee sitting.
Question put and agreed to.
Clause 45, as amended, accordingly ordered to stand part of the Bill.
Clause 46
Information disclosed by the Revenue and Customs
Question proposed, That the clause stand part of the Bill.
Chris Bryant
Clauses 46, 47 and 48 relate to His Majesty’s Revenue and Customs, the Welsh Revenue Authority and Revenue Scotland respectively. The clauses provide additional safeguards to any information disclosed through the information gateway by these bodies. They place restrictions on onward sharing and create offences for the wrongful disclosure of such data, thereby creating appropriate protection for tax data shared through the gateway. A similar provision is not required for Northern Irish tax data, as HMRC is responsible for the collection of devolved taxes in Northern Ireland. The Government will not commence measures to enable the disclosure of information held by HMRC until the commissioners for HMRC are satisfied that the technology and processes for information sharing uphold the particular safeguards relating to taxpayer confidentiality, and therefore allow information sharing by HMRC to occur without adverse effect on the tax system or any other function of HMRC.
Question put and agreed to.
Clause 46 accordingly ordered to stand part of the Bill.
Clauses 47 and 48 ordered to stand part of the Bill.
Clause 49
Code of practice about the disclosure of information
Question proposed, That the clause stand part of the Bill.
Chris Bryant
I am sure Members were wondering when we were going to get to a code of practice, and this is the clause that introduces it. Clause 49 requires the Secretary of State to prepare and publish a code of practice for the disclosure of information under the information gateway created in clause 45. The code of practice will provide guidance and best practice for such disclosure, including what information should be shared, who it should be shared with and how to share it securely.
In preparing and revising the code, the Secretary of State must consult with the Information Commissioner, devolved Governments and other appropriate persons. The code will be laid before Parliament before it is finalised. The first version of the code will be subject to the affirmative procedure and subsequent versions to the negative procedure, allowing proper parliamentary scrutiny.
Dr Spencer
Will the code of practice include information on the proportionate disclosure of data through the DVS scheme?
Chris Bryant
Yes.
Question put and agreed to.
Clause 49 accordingly ordered to stand part of the Bill.
Clause 50
Trust mark for use by registered persons
Question proposed, That the clause stand part of the Bill.
Chris Bryant
This clause enables the Secretary of State to designate a trust mark to be used only by registered providers of digital verification services. This will help users to identify those digital verification service providers that have been assessed as reliable and trustworthy. The clause gives the Secretary of State the power to bring civil proceedings against unauthorised use of the trust mark. The trust mark has now been registered as a trademark in the UK, so the Secretary of State will also be able to take appropriate legal action against misuse under trademark law.
Question put and agreed to.
Clause 50 accordingly ordered to stand part of the Bill.
Clause 51
Power of Secretary of State to require information
Question proposed, That the clause stand part of the Bill.
Chris Bryant
Clause 51 enables the Secretary of State to issue written notices to accredited conformity assessment bodies and registered digital verification service providers, requesting information that he may reasonably require to exercise his functions under part 2 of the Bill. That could include information on inclusion, fraud or other statistical information to assist the Secretary of State in carrying out his duties under this part of the Bill.
The notice must state why the information is required and may specify or describe particular information, together with the form in which it must be provided, the time within which it must be provided and where it must be provided. The clause also sets out circumstances where disclosure would not be required—for example, where it would contravene the data protection legislation. Non-compliance with the clause by registered providers may result in removal from the digital verification services register.
Question put and agreed to.
Clause 51 accordingly ordered to stand part of the Bill.
Clause 52
Arrangements for third party to exercise functions
Question proposed, That the clause stand part of the Bill.
Chris Bryant
I am conscious that we are steaming towards the end of part 2 of the Bill. It is 11.10 am, and we could go on until 11.30 am, but it might be convenient for Members if we were to end a little earlier and then move on to parts 3 and 4 this afternoon. That would be a matter for the Whips, and I do not like to tell a Whip what to do.
Clause 52 allows the Secretary of State to make regulations for his functions to be exercised by a third party. Such delegation may be made for any function of the Secretary of State under part 2 of the Bill, except for his regulation-making powers. The delegation may also provide for payments to be made and received from the third party to whom functions are delegated.
This clause gives the Secretary of State the flexibility to adapt to the governance needs of the digital identity market as it grows. Governance functions will initially sit within the Department for Science, Innovation and Technology, and future plans to delegate any function in part 2 of the Bill will be carefully considered and subject to parliamentary scrutiny under the affirmative procedure.
Clause 53 requires the Secretary of State to prepare and publish reports on the operation of part 2 of the Bill at least every 12 months, with the first report due 12 months after the commencement of clause 28, which concerns the publication of the digital verification services trust framework. These reports will be published on gov.uk. This publication will strengthen transparency in the Government’s digital identity programme and boost trust in the market.
Clause 54 is an index of terms defined or explained in part 2 of the Bill. It sets out the subsection numbers where definitions and explanations can be found.
Ordered, That the debate be now adjourned.—(Kate Dearden.)
Public Authorities (Fraud, Error and Recovery) Bill (Fifth sitting)
Tuesday 4th March 2025
(1 day, 19 hours ago)
Public Bill CommitteesPublic Authorities (Fraud, Error and Recovery) Bill 2024-26 View all Public Authorities (Fraud, Error and Recovery) Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 04 March 2025 - (4 Mar 2025)
The Chair
I remind Members to send their speaking notes by email to hansardnotes@parliament.uk and to switch all electronic devices to silent, and that tea and coffee are not allowed during sittings. Should any Member want to speak to any clause or amendment, please bob in the usual way as you would in the Chamber and try to catch my eye.
Clause 13
Penalties etc
Question proposed, That the clause stand part of the Bill.
Georgia Gould (Queen’s Park and Maida Vale) (Lab)
It is a pleasure to serve under your chairship, Mrs Lewell-Buck.
Clause 13 allows the Government to use the proposed recovery powers to recover late penalty payments and associated interest deriving from the civil penalty regime that is introduced in chapter 5 and any additional relevant costs, either awarded by a court or tribunal or incurred in exercising the recovery powers. In all of these cases, money will be owed to the public purse. Once it has been recovered, it can be used for public good. If these sums were to remain unrecovered, it would not have this positive impact.
We are building strong safeguards and appeal routes into all our measures, including on the application of penalties. Decisions to impose a penalty will be taken by authorised officers, and we have discussed the training that they will have. It is also intended that the debt recovery powers will be overseen by the independent oversight mechanisms, which we will turn to later in the session. Where we are justified in using the proposed recovery powers to seek payments directly from bank accounts and pay-as-you-earn earnings, we want to be able to use them. The penalties and costs will all derive from the fraud investigations that the Public Sector Fraud Authority will carry out.
Clause 14 restricts when chapter 4 recovery powers can be used to recover penalties. They can only be used when the timeframe for appealing a penalty has passed without any appeal being bought or any appeal against the penalty has been finally determined by a tribunal. Penalties are issued for important reasons to encourage compliance and to help make the whole Bill work effectively, and to help make the PSFA effective in its efforts to tackle fraud against the public sector.
Penalties are not something that can be put into the back of a drawer and forgotten about. Fraud is an expensive business for Government. It costs us money when people defraud us. It costs us money to investigate, to take proceedings through courts and to pursue recovery. It is not fair that these costs are shouldered by law-abiding citizens. It is right that those who do not follow correct procedures are penalised and have to pay.
Clauses 13 and 14 enable us to hold debtors to account, driving up recovery of what is owed by letting us use the recovery powers in a wider but proportionate manner and with the appropriate safeguards and appeal routes in place. However, this has to be done with respect of due and proper process, which is exactly what this clause mandates. These clauses are important safeguards that rightly prioritise the liable person’s right to appeal a penalty decision over the recovery of the penalty. It provides us with operational flexibility to recover a range of debts, driving up the value for money of our operations. I commend clauses 13 and 14 to the Committee.
Mike Wood (Kingswinford and South Staffordshire) (Con)
Clause 13 sets out that the Minister can use powers to recover amounts from a penalty, such as late payment, but also relevant costs to be awarded by a court or tribunal. Relevant costs rightly also include costs that are reasonably incurred by the Minister in exercising the powers in chapter 4.
Can the Minister share details on what this measure might include? What is reasonable and what are the expected amounts that might be recovered in this way? Does this also cover legal costs—for example, court fees and legal representation? Will it include investigatory costs, such as the use of forensic accountants or data analysts? Does it extend to administrative costs, such as the work of civil servants processing cases? How is reasonableness to be determined within these clauses? What criteria or guidelines will be used to assess whether a cost is reasonable and will there be an independent review process to prevent excessive or disproportionate costs from being been claimed? Will the affected individuals or entities have the right to challenge, at an appropriately early stage, costs that they deem to be unreasonable?
On the expected scale of the costs, do the Government have an estimate of the average cost that could be incurred and recovered under these provisions, and will there be caps or limits on the amount that can be recovered from an individual or organisation? Does the Minister expect those to vary? How will cost recovery be monitored and reported to ensure transparency?
Given the potential financial impact on those subject to enforcement proceedings, it is crucial that clear safeguards, transparency and accountability mechanisms are in place to ensure that costs remain proportionate and fair. I would appreciate further detail from the Minister about how these costs will be defined, managed and reviewed.
Clause 14 provides that the Minister can recover an amount due in respect of a penalty only when the time for appealing has passed without an appeal, or any appeal has been finally determined. We think that that is perfectly sensible and will support the clause.
Steve Darling (Torbay) (LD)
In the oral evidence, Professor Levi highlighted some powers regarding asset freezing that the police have had since 2017. I would welcome the Minister’s reflections on whether these powers could have a significant impact in this area of the law—in particular, whether they would apply to international organisations, and the impact on individuals. I think that would be helpful to the Committee.
Georgia Gould
I welcome the support for the clause. To clarify, the operational costs of running PSFA operations and investigations will not be included in reasonable costs. There is work being done through the test and learn period by the enforcement unit to inform those costs, and guidance will be published in due course. As I have set out previously, there will be independent oversight of the full use of these powers, by a team that will answer to an independent chair. They will report to Parliament and will look at all aspects of the use of these powers, including the cost. If it is not established by agreement, we will have to apply to a court or tribunal to determine what the debt is, so there will be that added aspect of independence.
For asset seizing, we can apply for orders through the courts. In evidence we heard from the financial industry, there were questions about how the powers will work together, and there is work going on to respond to some of those questions. Our teams are working very closely with those financial bodies.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Clause 14 ordered to stand part of the Bill.
Clause 15
Payable amounts
Question proposed, That the clause stand part of the Bill.
Georgia Gould
Before I go into the detail of the clauses, I want to take a minute, as we are entering a new chapter, to make some opening remarks about the wider powers.
Chapter 4 of part 1 introduces debt recovery powers. In 2021-22, detected fraud and error outside of tax and welfare was £823 million, of which only £190 million—23%—was recovered. Alex Rothwell, from the NHS Counter Fraud Authority, told us in his evidence that the Department recovered only 12% of fraud and error. There is a long way to go in this space, which is why the powers are so important.
We know that recovery of fraud-related debt can be challenging. Debt recovery powers are limited to a small number of organisations and are therefore not available across the public sector. The Public Accounts Committee, Home Affairs Committee and National Audit Office have all strongly challenged the Government to do more across the public sector to take action on fraud loss. As part of the Bill, we are bringing debt recovery powers into the PSFA to enable the Government to better recover fraud debt outside of tax and welfare. We heard from Alex Rothwell that these powers will be incredibly helpful for us to recover more money.
The powers are not new to Government—HMRC and the Child Maintenance Service already have the power to recover debt from bank accounts, and DWP and the Child Maintenance Service can recover debt from earnings. We will utilise best practice from those organisations in operating the powers. Although we initially expect to use them in just a small number of cases, we hope that this will grow as and when the PSFA enforcement unit expands.
We have consulted widely with a range of fraud and debt stakeholders, including public bodies, academics and non-public sector groups. Banks, charities and civil liberty groups have been engaged so that we can incorporate lessons learnt from the experience of debt recovery processes in Government. We know that those in debt can be in challenging situations, which is why the use of the powers will follow best practice across Government, including the Government debt management function standards, and guidance such as the debt management vulnerability toolkit.
Importantly, the powers will only be used once efforts to engage and secure voluntary repayment have been unsuccessful. The only people and companies who will face the powers are those who have the means to repay, but who refuse to do so. Those affected by the powers will have the right to make representations, apply to vary orders, request an internal review, and finally, appeal to the tribunal. The powers will be used by trained authorised officers who will be subject to independent oversight. The debt recovery powers in the Bill balance the need to recover public money efficiently, while ensuring that recovery is fair and proportionate, with robust safeguards to protect those in vulnerable situations.
Clause 15 refers back to clauses 1 and 13 to define a payable amount as: a payment made as a result of fraud or error, as discovered by an investigation into suspected fraud; a penalty under the civil penalty regime established by chapter 5; and, finally, relevant costs. This creates a limitation as to the debts that the Government will be able to use the chapter 4 recovery powers on, specifically, those determined by and during an investigation into suspected fraud, including from associated penalties.
We seek these recovery powers purely to further the counter-fraud activity that we will carry out to tackle fraud against the public sector. We do not intend to become a general debt recovery agency for the Government, and clause 15 confirms that. It reflects the operational context and purpose of the PSFA and its focus on tackling fraud and error.
Further to that, clause 16 confirms that we will be able to seek alternative recovery action through the civil courts. Although the Bill will provide the powers to seek recovery directly through bank accounts and PAYE earnings, these might not always be the most appropriate or effective recovery route. For instance, the liable person might hold significant other property assets or keep assets or money abroad. In those cases, it would be unfair for us not to seek recovery.
We therefore wish to work through established legal procedures to ensure that we can seek to pursue recovery through the most appropriate and effective mechanisms—for example, liability orders. The importance of clause 16 is that it confirms that the Bill does not limit existing powers. I commend clauses 15 and 16 to the Committee.
Mike Wood
As the Minister said, clause 15 establishes that a payable amount is a recoverable amount as defined in previous provisions of the legislation, while clause 16 further grants the Minister the power to apply to the county court for a recovery order. That ensures that a recoverable amount is treated as an enforceable payment under section 85 of the County Courts Act 1984, or as if it was directly ordered by the court.
While the mechanism for recovery is now clear, there are important practical questions about its implementation. First, we would like further reassurance about the impact on the county court system. What projection have the Government made regarding the number of cases that they expect to be brought under these provisions? Given the existing backlog in county courts, what assessment has been made of the additional burden that these measures will place on the system? Has the Minister engaged with her colleagues at the Ministry of Justice and His Majesty’s Courts and Tribunals Service to ensure that county courts have the capacity and resources to handle these cases efficiently and in a timely manner?
To develop further the issue of efficiency and speed of resolution, what is the expected timeframe for these cases to be resolved once an application is made? Do the Government anticipate delays due to a high caseload in county courts, and if so, what mitigations are they putting in place to help to deal with those delays? Will the Government publish guidance or at least a framework on the expected process and timeline for obtaining a recovery order?
It is essential that these powers do not result in undue delays, excessive court burdens, or legal uncertainty for those subject to a recovery order. Further clarification from the Minister would help to ensure that this system functions fairly and efficiently—balancing the need for enforcement and fairness to the taxpayer to recover sums that are owed, with the available judicial capacity.
Georgia Gould
We have published an impact assessment. That says that with the current size of the enforcement unit, we expect there to be about eight cases, so a small number, but of course if the powers work well and we expand the unit, that will increase. As the hon. Member would expect, we have engaged heavily across Government on all these questions. The critical thing is that there is significant deterrence to having to go through a court process—in terms of the interest that is going to grow on the debt, and the fees that would be accompanied by the legal costs and other costs associated with that process. Our hope is that the majority of people will go through a voluntary process—that will be both easier and less expensive for them—and that these powers will be used primarily as a deterrent.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Clause 16 ordered to stand part of the Bill.
Clause 17
Direct deduction orders
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 18 stand part.
Clauses 20 and 21 stand part.
Georgia Gould
Clause 17 introduces direct deduction orders as a method to recover public funds lost to fraud and error from a liable person’s bank account. Direct deduction orders are a vital mechanism to recover funds from a liable person who can afford to repay their debt but refuses to do so. This debt recovery mechanism is not new to Government; the Bill seeks to bring powers that are used elsewhere into the PSFA, not to create brand-new powers for the PSFA. That provides assurance of their effective and proportionate use, and we are doing the same here. The introduction of direct deduction orders is essential to bolster the Government’s ability to recover public funds, ensuring that taxpayer money lost to fraud and error is reclaimed and redirected towards essential public services and the common good.
To safeguard the use of these powers, direct deduction orders will be used after an investigation by the Public Sector Fraud Authority into suspected fraud against a public authority. The decision to make a direct deduction order will be made by trained and authorised officers in the PSFA who will work to the standards of the Government counter-fraud profession. The investigation must determine, to the civil standard of proof, that money is owed to the public sector as a result of fraud or error. As I have said, we will seek voluntary engagement and repayment, and only after those efforts have been unsuccessful will direct deduction orders be used. As outlined in clauses 12 and 14, there are clear restrictions as to when these powers become available, ensuring that their use is not unfettered.
Mike Wood
Clause 17 establishes that when a payable amount is recoverable, the Minister can issue an order for direct deductions from a liable person’s bank account, either through regular deductions or a lump sum payment, as she said. Clause 18 further clarifies that those deductions can be taken from any account in which the liable person has a beneficial interest. That is extremely important, given the difficulty in establishing the different networks of bank accounts that may be held, particularly in cases of serious and organised fraud. We welcome the flexibility the clause introduces.
Although the provisions aim to improve efficiency in recovering public funds, there are still questions regarding fairness, proportionality and the safeguards that are in place, starting with the definition of beneficial interest in clause 18. Clause 18(1) allows the Minister to make an order on an account that is held by the liable person and contains an amount that the Minister considers the liable person has a beneficial interest in. What criteria or evidence does the Minister expect the PSFA to use in determining a person’s beneficial interest in an account, given the complex ownership and title structures that may be in place? On the flip side of that, how will the rights of third parties be protected, particularly if funds belong to someone other than the liable person that might be held in a shared account?
That brings us to the question of joint accounts. Clause 20 assumes that a joint account is split equally between account holders unless the Minister has reason to believe otherwise. What types of evidence would be accepted to demonstrate that the liable person’s beneficial interest is different from an equal split? The Minister referred to bank statements, but would those investigating also look at legal documents or perhaps third-party testimony? Would that be appropriate in some circumstances? Will additional checks be carried out to ensure that joint account holders are not unfairly penalised for debts that might not be theirs? It is not uncommon for people in marriages or long-term partnerships to have a domestic joint account. It might well be that one of the partners in the relationship is, in practical terms, paying more into an account, but also using the account more than the other partner, despite the two names being equally on the face of the account.
Clause 21, on the notice and the right to respond, sets out the process of notifying banks and liable persons before deductions are made, and includes provision allowing them to make representations within 28 days. The clause allows the Minister to notify the bank first before informing the liable person, to prevent account closure, asset withdrawal or other measures being taken to deprive the taxpayer of the recovery of sums that might rightfully be recoverable. Can the Minister point to a precedent for that approach in other areas of law? How does that align with best practices in financial enforcement?
Although clause 21 allows the liable person to make representations to the Minister, there is not an explicit provision for an independent appeal mechanism. Is there a reason why the Bill does not provide for such a process? Would the Government consider an independent review mechanism, beyond the systematic review that is in place for the Bill, to ensure that decisions are fair and transparent and do not disproportionately affect people in individual cases?
To go back to the potential risks of financial and domestic abuse that I touched on earlier, deducting money from joint accounts could create serious risks for individuals in financially abusive relationships. What safeguards will be put in place to prevent financial hardship, particularly for vulnerable individuals who might not actually be responsible for the debts that the PSFA seeks to recover? What specialist training will staff receive to identify and mitigate the risk of financial or domestic abuse? The effectiveness of the measures will depend on strong safeguards, clear guidance and robust oversight mechanisms to ensure fairness and proportionality. I would appreciate further clarification from the Minister on those points.
Steve Darling
I rise to speak about clause 20 in particular. Liberal Democrats are heartened by clause 18, which clearly says that if there is another account the money could be drawn from, that will be utilised. However, we are particularly concerned about coercive and controlling relationships.
In my 30 years serving the people of Torbay as a councillor, I found on a number of occasions that people who are happy to conduct fraud against other parties, whether the state or other organisations, are often very happy to financially abuse their partners as well. That leaves their partners in a very vulnerable situation. I found that often the individuals affected are very trusting people who have vulnerabilities elsewhere in their lives, which would be recognised by the Department for Work and Pensions if it were supporting them.
I really want to hear from the Minister how the DWP is going to support people and be alive to the risk. It is about making sure that there is a culture of knowledge of the issue among the investigators. Although it is essential that we get the money from fraud in, we do not want collateral damage on people who have been abused.
Rebecca Smith (South West Devon) (Con)
I have some queries about clause 17 and the provisions on recovery from bank accounts. My comments apply to clause 38 as well, but I will speak specifically to clause 17.
Earlier, the Minister mentioned that some of the powers for direct deductions and deductions from earnings are used more widely across the DWP, particularly in the CMS for recouping costs for parents. Have the Government thought more broadly than simply direct deductions and deductions from earnings? My understanding is that the CMS has quite strong powers beyond that and has used them in the past.
Given the nature of fraud against public authorities—these are ultimately quite serious offences—what more has been done to consider whether direct deductions and deductions from earnings are enough and will be all that is required? At some stage, do we need to think about putting in tougher and more stringent powers to claw back the money owed to the Government?
John Milne (Horsham) (LD)
As the Minister described, the powers in the Bill are already used by other parts of Government. Can she provide us with any evidence of their success? Are they doing the job they were made for? Have they led to a change in behaviour in the way potential fraudsters set up accounts or attempt to disguise beneficiary interests?
Georgia Gould
I really appreciate the focus on vulnerability and oversight, because with these powers comes a huge amount of responsibility. The questions that have been raised today are really important.
First, the joint account holder will be able to make their own representations for review. The starting point will be the equal split, as was set out, but they will be able to make representations and ask to have their rights reviewed as part of the investigative process.
On the wider point about vulnerability, which was well made, there is a huge amount of established practice in Government, and the PSFA will seek to learn from that. The Government debt management vulnerability toolkit will be utilised. All the authorised officers will have training in vulnerability and economic abuse. Vulnerability assessments will take place in every single instance of debt recovery and vulnerability will be kept under review. A range of training and safeguards is in place around our approach.
On clause 21, I reassure the shadow Minister that there is precedent in HMRC. There can be both an internal review and an appeal, which is set out in clauses 34 and 31.
A wider point was made about whether we have looked at different and wider powers. The thing to remember about the powers is that in the majority of cases, but not all cases, we expect them to be used to recover funds from organisations rather than individuals, which is why we have focused on the financial side of debt recovery and penalties. Other powers are used by other Departments. I said earlier that we want to continue to be able to use other legal procedures to pursue recovery, including liability orders, and the Bill will not stop us doing so. We have a range of options in front of us.
Rebecca Smith
I thank the Minister for that reassurance and for outlining that there are further abilities to recover funds. Particularly in recoveries from organisations, does that include the seizure of assets should that be necessary? A lot of organisations might be asset rich but cash poor. If we seek to retrieve money on behalf of the Government, is the ability to seize assets, if required, within the framework the Minister alluded to?
Georgia Gould
Among the powers in the Bill there is only the power to recover debt through the ways that I have set out.
Question put and agreed to.
Clause 17 accordingly ordered to stand part of the Bill.
Clause 18 ordered to stand part of the Bill.
Clause 19
Requirement for banks to provide information
Question proposed, That the clause stand part of the Bill.
Georgia Gould
The clause outlines the information notices that can be given to a bank, how the bank must comply, the information it must provide and how the information can be used.
To determine whether to make a direct deduction order, an account information notice or a general information notice may be given. This is crucial in ensuring that sufficient financial information is gathered to facilitate informed debt recovery decisions, thereby enabling the effective recovery of public funds. The information provided by the banks is necessary and proportionate to ensure that the liable person’s financial situation is considered before a direct deduction order is made. This approach is already used by HMRC for its comparable direct recovery of debt, and it is also requested by the DWP in part 2 of the Bill.
The information gathered will protect vulnerable people, prevent hardship and safeguard non-liable joint account holders, while acknowledging the vital need to recover public funds lost to fraud and error. Banks must comply with a notice under the clause, and may be liable to a penalty for failure to comply without a reasonable excuse—this will ensure that the measures are adhered to. Furthermore, banks are prohibited from notifying account holders that they have received a notice under clause 19, to avoid tipping off debtors and thereby prevent money from being moved from the account. Overall, the clause is necessary in furthering the effective recovery of public funds. Having outlined the key provisions in clause 19, I commend it to the Committee.
Mike Wood
Clause 19 grants the Minister significant powers to obtain financial information from banks before making a direct deduction order, including the ability to request three months of bank statements, or perhaps statements covering a longer period where specified. The power to issue an account information notice requires banks to provide statements to determine what deduction should be made, and the power to issue a general information notice requires banks to disclose an individual’s account details, balances and correspondence addresses.
Clearly, in many investigations there will be good reason why some or all of that information is necessary, appropriate and justified. Of course, some of the information will be extremely sensitive, so we need necessary safeguards and appropriate oversight to ensure that sensitive information is requested and subsequently shared only where it is directly necessary to the investigation, and where the Minister or PSFA has justifiable grounds to think either that an error is costing the public sector significant amounts of money or that there has been a case of deliberate fraud. As I said about the previous grouping, a prohibition on banks informing the liable person that an information notice has been issued is a sensible measure to prevent that person from taking action to frustrate attempts to recover money that ought to be recovered—they could, for example, empty their account before deductions could take place. In principle, we support powers designed to ensure effective debt recovery under the right circumstances and when used in the right way, but there are several concerns regarding proportionality and oversight when it comes to protecting legitimate privacy rights.
First, on the unlimited timeframe for bank statements, clause 19 states that the Minister must obtain at least three months’ worth of statements, but can request a longer period if specified in the notice. What criteria will determine whether more than three months of statements is needed? Is there a reason why no upper limit is specified within the clause on how far back those requests can go? Clearly, the further back that requests are made for a bank statement, the greater the risk that they could lead to overly intrusive requests that may not be entirely necessary for the debt recovery.
On the broad information-gathering powers, the general information notice allows the Minister to demand a full list of all accounts held by the liable person, their details and their addresses. Presumably, that is for the specific financial institution that the notice refers to. Are there any safeguards to prevent excessive or disproportionate use of those notices? Must there be a reasonable suspicion or at least a threshold to be met before those powers can be exercised? The Bill states that the Minister can only request information to exercise their core functions, but that is obviously a very broad measure so could be interpreted very broadly.
Banks would be prohibited from informing the liable person that an information notice had been issued. Although that prevents individuals from evading deductions, it means that they may be unaware of a Government investigation into their finances even after the event. Are there any circumstances in which the liable person might be informed that their financial data has been accessed—perhaps after an investigation has been closed? Does the Minister envisage any independent oversight to ensure that those powers are used proportionately?
On the burden on banks and financial institutions, on which my hon. Friend the Member for South West Devon and I have tabled amendments to be debated later in the proceedings, these powers will require banks to process and respond to Government information notices, likely adding costs and administrative burdens to those institutions. Have the Government consulted with financial institutions to assess how proportionate the kinds of requests envisaged under the Bill are, the ease or the difficulty of compliance, and the estimated cost to banks and the financial sector? During evidence last week, some financial institutions did not seem to have any idea of what scale of burden that would be putting on their members. Again, a large part of this came back to the lack of visibility of draft codes of practice.
On privacy and data protection concerns, although the Bill states that the Minister can only request relevant information, that can be interpreted broadly. What legal protections exist to ensure that financial data is accessed and used appropriately for the very narrow purposes for which these clauses are intended? Will there be an independent review mechanism to assess whether those powers are used lawfully and proportionately?
Finally, given the wide-ranging implication of the powers, further clarity and safeguards are needed to balance effective debt recovery against individual privacy rights. I would welcome further details from the Minister on those critical issues, so that we can be comfortable going forward that the wide-ranging powers that we would be granting to the Minister and the PSFA cannot be misused and that individual privacy rights will be protected and respected.
Steve Darling
I ask the Minister to reflect on how speedily the Bill is going through Parliament. As we heard from the hon. Member for Kingswinford and South Staffordshire, financial institutions are not clear about the impact on or the cost to them. When we legislate in haste, challenges will often come out of the woodwork in the longer term. In this particular area, again, the issue is about the safeguards. We assume that we are dealing with reasonable people, but we do not have to look far in international news to see what can go wrong when unreasonable people gain power.
Where are the safeguards? When holding a Minister to account, it is often assumed that the Minister will be a reasonable person. Sadly, however, in the future the Minister may not be a reasonable person, so where are the safeguards for individuals? Also, as alluded to earlier in the debate, it would be helpful to have some assurance on the banks and the impact on them.
Georgia Gould
Let me go through those points in turn. The first question was about why someone might need information before three months. There are two critical reasons why: one is to ascertain potential vulnerability and affordability plans—we have talked about safeguarding joint account holders so as to have more information—and the other is to prevent people from evading paying: if more information were needed to ensure that the assets had not been moved. Throughout, we have tried to balance ensuring fairness for the taxpayer and protecting vulnerability. I hope it will give some reassurance that such powers are used effectively elsewhere in Government. We have learned from best practice.
I talked through the process of the first notice, and that will be where the individual is informed that that information has been requested. As we have discussed, a number of safeguards are built into the process, and the intention when recovering debt will be to work with the individual and to make it collaborative. If people refuse to pay, only at that point would we apply to the courts or a tribunal, where safeguards are of course in place.
To the wider question of what safeguards hold the system to account, as I have outlined and as we will discuss in more detail later, a team answerable to an independent chair will oversee every part of the process, including the ability to look at live cases and at the patterns, to ensure proportionate use of the powers. That individual will report to Parliament. Separately, a fully independent body will review the full use of the powers. We expect that to be His Majesty’s Inspectorate of Constabulary and Fire and Rescue Services. The Bill also includes a provision to make the PSFA a statutory body, and so fully independent of the Minister. While it remains in this smaller phase, where we are testing the powers, the independent safeguards are built in.
On the point about the consultation with the finance bodies, I hope the Committee heard in the evidence that UK Finance was clear that we have been having a constructive dialogue on all of the issues. The PSFA has published an impact assessment, which suggests that, in the first instance, banks will need to look at a very small number of cases. We have committed to testing and learning alongside the process as the PSFA grows. There will be established practice for working closely with the banks. We expect the burden on banks for the application of the PSFA powers to be limited. I hope that gives some reassurance on oversight.
The Chair
With this it will be convenient to discuss clause stand part and clause 23 stand part.
Mike Wood
Clause 22 outlines how much can be directly deducted from a liable person’s bank account, while clause 23 specifies the information that must be included in direct deduction orders. These provisions are central to the enforcement mechanism and yet there are many questions that remain about their practical implementation and fairness.
As we have said many times in Committee, it is very difficult to assess how the system will work without seeing a draft code of practice. As Anna Hall from the Money and Pensions Service said when giving evidence last Tuesday,
“the code of conduct will be the critical thing. One of the things is that if frontline staff are not picking up vulnerabilities, or they are not trained in how to sort out affordability, in empathic listening or in all the protocols about how to have different types of conversations with people in different types of vulnerable situations—if those things are not in place—some of the processes in the Bill will not be as effective. It comes down to the training for frontline staff, and the capacity and processes to then follow up on what has actually been disclosed, that will enable those repayment plans to be put in place before those later processes. If those are not in place, that could cause some real issues. How successful this Bill is will come down to the code of conduct, as many have said.”––[Official Report, Public Authorities (Fraud, Error and Recovery) Public Bill Committee, 25 February 2025; c. 30, Q49.]
The Minister kindly promised during earlier sessions that:
“As for the development of the codes of practice, as I hope the Committee will see today, I will refer to the measures that are to be put in the code of practice as we go through the clauses, so that we can have some discussion about that.”––[Official Report, Public Authorities (Fraud, Error and Recovery) Public Bill Committee, 27 February 2025; c. 92.]
This is another occasion where it would be helpful, as the Minister suggested, to know a bit more about the code of practice, to enable us to scrutinise the provisions better. As witnesses have said, the code of practice is key to how effective the provisions will be. The effectiveness of the Bill will depend on matters such as the training for frontline staff on assessing affordability and vulnerabilities, the processes to evaluate hardship and to create fair payment plans, and the protocols to identify and support people in vulnerable situations.
Can the Minister provide further information about the code of practice, when it will be available for scrutiny and how it will relate to those elements of these clauses? How will the direct deduction system work in practice? As I say, this is a question about staff training and decision making; it will be an operational matter rather than something that can necessarily be directed from Westminster or Whitehall, so how will staff determine a suitable recovery amount and timeline? What principles will guide repayment plans, and how will assessments be made to ensure that affordability and prevent hardship?
Without knowing those matters, it is difficult to judge the appropriateness of some parts of these clauses, because there obviously will be some vulnerable individuals who might be subject to some of the measures in these clauses. What safeguards will be in place for those who require additional support? Will special provisions exist for individuals facing mental health issues, financial abuse or crisis situations?
I turn to the limits on deduction amounts. This is an area where we think the Government are possibly not going far enough: they are setting a maximum deduction limit even when sufficient funds exist and even when the Minister is satisfied that there has been deliberate fraud and an intention to deprive the taxpayer of money that should rightfully be being spent on public purposes.
Obviously, there are some safeguards in the clauses relating to hardship and essential living costs. The legislation states that deductions must not
“cause…hardship in meeting essential living expenses,”
but just how is that hardship to be assessed? Would someone who fraudulently obtained money be allowed to retain it if they successfully argued that they would suffer hardship from repaying it, even if they were never entitled to the money in the first place? And where does that line fall? Presumably, we would not expect them to be able to retain money to allow them to lead a certain quality of life that they may be used to, but that is obviously very different to being able to pay essential bills.
Under the Bill, in cases of fraud, only 40% of credited amounts can be deducted in the relevant period. We are not sure why that cap is in place when the individual was never entitled to the money. If a person has sufficient funds and there has been a conscious—perhaps even organised—attempt to defraud the public sector, why limit recovery rather than allowing full repayment?
That brings me to amendment 19, which stands in my name and that of my hon. Friend the Member for South West Devon. It proposes removing the 40% cap to ensure full recovery under this legislation where possible and subject, obviously, to the safeguards to which I have referred—the hardship test and the independent oversight that is contained within the clauses.
Mrs Lewell-Buck, if you had defrauded the taxpayer out of £100,000—I am not for a moment suggesting that you would—and £100,000 happened to be visible within your bank account, and the Minister was satisfied that that was the result of a conscious course of action on your part to defraud the taxpayer and that there was no reason to imagine that losing it was going to cause you obvious hardship, why should you be allowed to keep £60,000 of that £100,000 in your bank account, even though the money was simply not yours? In that hypothetical situation—I ought to repeat that—it would be stolen money. It does not seem right that the legislation appears to protect 60% of defrauded money and prevents recovery through these mechanisms, so I intend to push amendment 19 to a Division. Who is subject to the safeguards in the clause? If the Government are confident that those safeguards are robust enough to apply to the first 40%, it seems that they ought to be robust enough to apply to the remaining 60% as well.
Returning to clause 22, what happens if too much is deducted? The Bill states that the Minister must not deduct more than the payable amount, which is a sensible and logical bar to set. However, what mechanisms exist to correct over-deductions? What recourse does a liable person have if an error is made and they suffer loss as a result of an over-deduction?
Neil Coyle (Bermondsey and Old Southwark) (Lab)
Is the shadow Minister suggesting a level of deductions that is acceptable? The amount that the Department for Work and Pensions can claim back has fluctuated in recent years. Are the Opposition proposing a level at which that threshold should be set?
Neil Coyle
I am not talking about the amount for those who have committed fraud but for the second group that the shadow Minister mentioned, where there perhaps has been a mistake.
Mike Wood
In the case of non-fraudulent claims, where the Minister is not satisfied that there has been fraud on the part of the liable person, I would be inclined to go with the Government’s figure of 20%. That is reasonable in the case of errors, and it obviously allows for longer-term recovery where a genuine mistake has been made. Where there is deemed to have been fraudulent activity, it does not make sense to give those responsible the protection of protecting 60% of the money that they have stolen.
Neil Coyle
Is the shadow Minister’s other concern, with those who have committed fraud, that he thinks the payment should be faster? The Bill allows for 100% of this falsely claimed sum to be recouped, but he seems to be suggesting that he would like to see that done faster. Is that the nature of the amendment?
Mike Wood
Obviously, the Bill allows for sums to be recouped through regular earnings. Where money is in a bank account, we have established that the money is there from the information notices and other measures in the Bill. If the full amount that has been defrauded is available within the account, it seems to make little sense not to be able recover that sum from the account, rather than relying on a deduction of earnings order.
Clause 23(5) requires banks to comply with direct deduction orders. Have the financial institutions been consulted on those obligations and are they content with them? As was said earlier, the evidence that we heard last Tuesday suggested that many financial institutions did not seem to have a grasp of what those obligations and burdens might look like, as well as the costs that would arise.
To conclude, the effectiveness of these provisions will depend heavily on the codes of practice on staff training and on fair procedures. Further clarification is needed to ensure deductions are proportionate, transparent and do not cause undue hardship, particularly in cases of fraud and financial vulnerability. But where there has been demonstrable fraud, the Opposition see no reason to protect 60% of credit in a bank account where it may be linked to conscious efforts to defraud the taxpayer. I would welcome the Minister’s response to those concerns.
Steve Darling
The Liberal Democrats support this Conservative amendment. I will not go over the arguments again, as they have been well put. Some clauses talk about safeguards. It is about the culture of the organisation, making sure that individuals have professional curiosity and how to foster that within the organisation. Professional curiosity can bear significant fruit for a number of Government organisations when they conduct activities, but broadly we are supportive.
Siân Berry (Brighton Pavilion) (Green)
It is a pleasure to serve under you today, Mrs Lewell-Buck. I do not support the Conservative amendment. A lot of the discussion in Committee has been about reducing the risk of harm to potentially vulnerable people and people caught up in these frauds, who might not deserve to be punished in any way. I would not support taking out a measure that is there presumably to reduce the consequences of making an error. Therefore, I will not support the amendment.
Georgia Gould
I welcome the opportunity to respond to the amendment and to clarify an error that I made in a previous discussion that might have contributed to some confusion. When I talked about the recovery of debt and a limit to the amount that will be recovered, I mentioned up to 40% of assets when I meant to say credited amounts. To be clear, in the instance that the shadow Minister mentioned—say the Member for Kingswinford and South Staffordshire defrauded the Government, they had £200,000 in their account and it was a lump sum, the powers would enable the PSFA to recover that money, with the safeguards of not leaving that person in financial destitution. The 40% is related to ongoing repayments and the speed of repayment. I hope that that gives some reassurance to the hon. Member.
To the points that Opposition Members have made about vulnerability and training, the PSFA authorised officers will be highly trained. They are subject to professional training and a code of ethics within that. That includes the kind of professional curiosity that the hon. Member for Torbay talked about. On debt recovery, they will work to establish debt practice, including the debt management vulnerability toolkit, which is publicly available. I would be pleased to send him those documents so he can understand the vulnerability assessments that will be made and scrutinise them.
To go through the detail of the clauses, specifically for a regular direct deduction order, the total deductions in a 28-day period must not exceed either 40% or 20% of the amount credited to the account in the relevant period: for fraud, 40% is the maximum; for error, the maximum is 20%. Throughout the Bill, we have sought to bring powers that are used elsewhere into the PSFA, not to create brand new powers for the PSFA. This provides assurance of their effective and proportionate use, and we are doing the same here. The 40% maximum limit is in line with existing legislation, such as the DWP’s existing direct earnings attachment powers and the Child Maintenance Service deduction from earnings order powers.
Mike Wood
I thank the Minister for giving us some clarification on that, but the direct deduction is different from an earning attachment where there is likely to be another similar amount coming in the following month. The Minister suggested I might have £200,000 in my account, which I think would raise a few eyebrows all around. But if all £200,000 had been the result of fraud from the public sector, and I chose to put that regular direct deduction order in place, my understanding of clause 22(3) is that in the first month the maximum that could be deducted would be 40% of £200,000—which is £80,000.
Georgia Gould
First, I want to make absolutely clear that I was not accusing the hon. Member of any fraud, but just using a hypothetical. In that instance, the PSFA would use the lump sum direct deduction orders, so they would be able to take the full amount. They would not need to use the direct earnings attachment. It would be a lump sum direct deduction order that would recover that money. As I said, there are no limits to that, except that it does not cause hardship in meeting essential living expenses. I hope that provides some reassurance.
The 40% maximum limit is in line with existing legislation. The amendment seeks to remove the 40% cap for fraud, allowing a higher percentage of regular deductions to be made. To be absolutely clear, for lump sum direct deduction orders, there is no maximum limit on the total amount of deductions. However, the lump sum deduction must still adhere to the core principles, in meeting essential living expenses and be otherwise fair. That ensures that where a higher proportion of the payable amount is present in the account, we can recover the debt more efficiently while maintaining those key safeguards.
We are also able to issue a lump sum direct deduction order and then establish a regular direct deduction order. That allows us to take an initial higher amount of deduction, with regular payments thereafter where appropriate. This is a better route than allowing for a higher level of deductions. It builds on established practice, is proportionate while still being impactful, and it limits the disincentive to earn that an unlimited regular deduction would create. A too-high regular deduction would disincentivise earnings so strongly that it would result in slower, not faster, recovery of funds for our public services.
I turn to clause 22, which sets out the amount of deductions that there may be under an order. We have ensured that the amount of debt we collect at any given time is fair. That is why we established maximum limits based on whether debt was accrued due to fraud or error. We have discussed the safeguards and precedent at length, and the powers here build on precedent across Government. A key consideration throughout the creation of the debt measures was to robustly prevent hardship, learning from best practice. The challenge was to balance that with the need to send a strong deterrent message to those who have the means to pay their fraud and error-related debt to Government, but refuse to do so.
Clause 22 caters for that by ensuring that the terms of the order will not cause the liable person, any other account holder, or a person living with or financially dependent on the liable person or any other account holder, hardship in meeting essential living expenses. To ensure we include other considerations outside of this list, the terms of the order are also required to be otherwise fair in all circumstances.
Clause 23 provides the contents and effect of direct deduction orders. Regular and lump sum direct deduction orders must specify the amount, or a method for calculating the amounts, to be deducted and when. A regular deduction may specify different amounts or different methods to be deducted at different times. For example, the first deducted amount may be higher than the following payments to recover the debt in the most efficient way possible. Deductions may not be made until 28 days after an order has been made. That provides a safeguard for the liable person, allowing them the requisite time and opportunity to request a review under clause 45. Banks must comply with the direct deduction order, whether regular or lump sum, to ensure adherence to these measures. A penalty may be imposed for failure to comply under clause 53.
Clauses 22 and 23 send a strong message to those with fraud and error-related debt to the Government, while preventing hardship and protecting those who are vulnerable. They play an essential role in the operation of a direct deduction order and align with the core principle of seeking the effective recovery of public funds.
I have set out the powers that are available under the Bill, but as I said earlier, they do not prevent the Government also being able to use powers that are already available, such as applying to the courts to seize assets. Having outlined the key provisions in clause 22 and 23, I commend both to the Committee.
Mike Wood
Given the Minister’s reassurances, I will not press amendment 19 to a Division now, but we may wish to come back to the matter on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 22 and 23 ordered to stand part of the Bill.
Clause 24
Bank’s administrative costs
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
New clause 6—Report on cost implications for banks—
“The Secretary of State must, within three months of the passing of this Act, publish a report on the expected cost implications of the provisions of this Act for banks.”
Amendment 23, in clause 103, page 63, line 35, at end insert—
“(3A) Before bringing into force any of the provisions of Part 1 of this Act, the Secretary of State must consult with banks as to the costs which will be incurred by banks upon application of the provisions of Part 1.
(3B) Where consultation finds that the expected costs to banks are at a disproportionate level, the Secretary of State may not bring into force the provisions which are expected to result in such disproportionate costs.”
Georgia Gould
Clause 24 enables a bank to deduct administrative costs that it has reasonably incurred when complying with a direct deduction order from the liable person’s account. This provision is essential to ensure that banks are adequately compensated for the administrative efforts required to comply with the orders, thereby facilitating the efficient operation of debt recovery processes while protecting account holders from undue financial strain. A direct deduction order will then specify how the bank can deduct its administrative costs while complying with the maximum amount of total deductions as specified in the clause 22.
Clause 37 contains a power to make further provision through regulations as to the administrative charges which can be imposed by the banks. That power will be used to introduce a cap on the charges which can be imposed under this clause and which can be adjusted in line with inflation and to ensure that the charges remain reasonable at all times. The amount may be deducted by the bank immediately prior to the direct deduction order. To safeguard against that causing unintended hardship, the question of deducting the bank’s administrative costs for the liable person must be taken into account when complying with the hardship considerations outlined in clause 22. That will ensure that the direct deduction order and deduction of the bank’s administrative costs do not cause the liable person, other account holders, those living with the liable person or joint account holder or those financially dependent on the liable person or joint account holder hardship in meeting essential living expenses and that the deductions are otherwise fair in all circumstances.
Regarding the burdens on the financial services sector, the Government are extremely mindful of the burdens that the Bill places on industry, including financial institutions. We want to ensure that banks are not subjected to disproportionate burdens or costs in complying with these measures. As I have outlined, that is why we met with key representatives of the finance industry, including UK Finance, individual banks, building societies and the Financial Conduct Authority, to ensure that there is close and sustained engagement on this Bill. We heard directly from UK Finance in evidence last Tuesday. The finance sector has supported the Bill’s objectives and there are constructive conversations already taking place. The direct deduction order powers in this Bill align with those existing powers and we will continue working with the DWP to align direct deduction order processes across both Departments where possible to simplify implementation.
Mike Wood
As the Minister said, the clause allows for deductions from a liable person’s account to include reasonable costs incurred by the bank in processing the deduction order. While the clause will ensure that banks can recoup legitimate administrative expenses, several important questions arise about fairness, oversight and overall financial impact.
Steve Darling
I echo many of the concerns raised by the shadow Minister. There are serious issues with giving a blank cheque to banks to undertake certain activities. How are they planning to calculate what their cost is? Is it purely the direct cost of that activity, or are they able to ladle into that some of their central costs? Clearly, if they did not exist as a bank, they would not be able to undertake these activities. There is uncertainty, and we wish to see fairness and transparency. Some feedback from the Minister on this matter would be extremely welcome, because although it is fair that people pay for the activity to be undertaken by banks, so that the burden does not fall on either the banks or the taxpayer, it is important that it is equitable. I look forward to the Minister’s response.
Georgia Gould
I referred in my opening remarks to the positive and ongoing conversations that we are having with banks and the UK finance industry, and that was reflected in the evidence we heard. A UK Finance representative said that a number of conversations with industry have taken place since the measures were announced, and referred to “constructive conversations”.
Concerns were raised about safeguards for the charges that banks could put in place under the PSFA measures, and I have already outlined some of the safeguards in place. The deduction of a bank’s administrative costs should not cause the liable person, other account holders, those living with the liable person or joint account holder, or those financially dependent on the liable person or joint account holder hardship in meeting essential living expenses, and they should be fair.
There are further protections in the Bill. Clause 37 contains the powers to make further provisions through regulations on the administrative charges that can be imposed by the bank. The powers will be used to introduce a cap on the charges that can be imposed under the clause and adjusted in line with inflation. To give further reassurance to the Committee, this is in line with the powers that HMRC has through the Enforcement by Deduction from Accounts (Imposition of Charges by Deposit-takers) Regulations 2016. For HMRC, the regulations specify that the amount should be
“the lesser of…the amount of those administrative costs reasonably incurred by the”
bank “and £55.” So there is precedent, and the necessary regulations will be made in due course.
In my view, new clause 6 is not required. We have already published the Bill’s impact assessment, which sets out the minimal expected cost to businesses of its measures, where it has been possible to do so, including to banks. The impact assessment has been green-rated by the Regulatory Policy Committee. DWP has also committed to providing estimates in a subsequent impact assessment of the business costs for DWP’s eligibility verification measure, within three months of Royal Assent. So DWP has already come forward to commit to bringing forward that information as part of the package. I am confident that that will provide the necessary transparency that the shadow Minister seeks, and I hope that our commitment again today to provide those costs reassures hon. Members.
Equally, we believe that the purpose of amendment 23 is already provided for through the regulation-making powers under clause 37. As I stated, we have consulted and will continue to consult the banks to implement the measures in part 1 of the Bill, as set out in the published impact assessment. In part 1, the costs to banks are expected to be minimal and offset by the ability of banks to recover administrative costs from the liable person.
Clause 24 enables the banks to recover administrative costs from the liable person, and clause 37 provides for regulations to be made in relation to the costs that a bank may recover by virtue of clause 24. We intend the regulations to be reasonable for those paying and for the banks. Before introducing such regulations, a consultation must occur with those representing the interests of banks. We are committed to continuing engagement and consultation with the financial services sector through the passage of the Bill and its implementation —indeed, that has been ongoing since evidence was given last week.
It is important to put the cost to banks in the context of the amount that will be recovered under the Bill, which we estimate to be £940 million—money that is vital to delivering public services. It is right that every part of the system plays its part in recovering money that was lost to fraud. Having outlined the key provisions in the clause, I urge the Committee to agree that it should stand part of the Bill.
I have just received a message: I thought I said that DWP would produce an impact assessment in 12 months, but I said three months. I assure everyone that it is 12 months.
Question put and agreed to.
Clause 24 accordingly ordered to stand part of the Bill.
Clause 25
Insufficient funds
Question proposed, That the clause stand part of the Bill.
Georgia Gould
The clause sets out the action to be taken if the amount in the account is lower than the amount specified in the direct deduction order. Should that situation arise in relation to a lump sum direct deduction order, no deduction is to be made by the bank, and the bank must notify us as soon as possible. If it occurs in relation to a regular deduction order, the order is to be read as requiring the deduction to be made on the same day the following week. If the amount in the account still remains lower, no deduction is to be made and the bank must notify us as soon as possible. That approach ensures that individuals are not unduly penalised or driven into financial hardship because of insufficient funds, while maintaining the integrity of the debt recovery process through prompt communication and reassessment. Having outlined the key provisions of the clause, I commend it to the Committee.
Mike Wood
The clause outlines the procedure when a bank account does not contain sufficient funds to fulfil a direct deduction order. The key provisions are as follows. For lump sum deduction, if the full amount is not available, no deduction is made and the Minister is notified. For regular deductions, if the necessary funds are not available, an attempt is to be made again on the same day the following week. If funds remain insufficient, no deduction is made and the Minister is notified.
I have some key questions and concerns as to what happens next. Once the Minister is notified, what are the next steps? Does the notification trigger further action to recover the money through other means? Is there a set timeframe in which the Minister must decide on further steps? Does the Minister have discretion to determine the best course of action, or are there prescribed steps that must follow? If funds are unavailable in the specified account, is there a process to check whether the liable person has other accounts in their name with other financial institutions that may have sufficient funds? Would the Minister have the power to issue a further general information notice to a bank in order to identify other accounts that could be used for recovery?
Georgia Gould
I am grateful for the shadow Minister’s questions. This clause and his questions really highlight the balance between safeguarding vulnerability—ensuring that people are not left without money to be able to support themselves and dependants—and recovering all the money owed to the Government.
Hopefully, the shadow Minister will be reassured that alternative recovery methods will be available, including using other powers in the Bill to gather information on, or recover money from, other accounts held by that liable person. If an individual continues to try to frustrate the process, as the shadow Minister has described, there are civil penalties through deduction orders of £300. If all the powers in the Bill are frustrated, the authorised officers will be able to apply to the courts to seize assets and to use other powers available. There are a number of options to ensure the full recovery of defrauded money to the state.
Question put and agreed to.
Clause 25 accordingly ordered to stand part of the Bill.
Clause 26
Restrictions on accounts: banks
Question proposed, That the clause stand part of the Bill.
Georgia Gould
Direct deduction orders will be an effective tool in recovering money owed to the public sector. However, it is important that we include measures in the Bill to make clear the obligations of banks and account holders with regard to the orders.
Clause 26 introduces restrictions on accounts from the perspective of banks. The bank must ensure that the account is not closed at the request of the account holder. If the notices relates to a lump sum direct deduction order, the bank must also secure that no transactions occur that would reduce the balance below the amount specified on the order, or the bank may transfer the specified amount, or the amount in the account if it is lower, into a hold account created by the bank to protect it. The bank must ensure that no transaction occurs that would result in the hold account’s balance falling below the amount transferred into it. When a bank transfers an amount into a hold account, it must ensure that in doing so, it does not cause any disadvantage to the liable person or any account holder. These provisions are essential and are a key safeguard to ensure that funds required for recovery are preserved while also protecting account holders from any disadvantage, thereby maintaining trust and fairness in the enforcement process.
Clause 27 imposes restrictions on account holders to prevent them from taking any action that may frustrate the effect of the first notice or direct deduction order, which the shadow Minister raised concerns about. To clarify, frustrating the effect of the first order in this context means frustrating the effect of the proposed direct deduction order, the terms of which are set out in the first notice. Frustrating the effect of the first notice or the final direct deduction order might include a liable person creating a new bank account in order to redirect the payment of their salary, or the liable person falsifying the extent of their protected essential living expenses.
These restrictions are vital to ensure that funds necessary for debt recovery are not deliberately concealed or moved, thereby upholding the fairness and integrity of the public fund recovery system. They are also balanced within the wider direct deduction order measure, which includes review and appeal rights that are also intended to be subject to independent oversight, to be discussed later. Should a person frustrate the effect of the first order or direct deduction notice, a trained authorised officer may decide to impose a penalty under clause 53.
Mike Wood
Clause 26 places significant responsibilities on banks once a direct deduction order has been issued. The bank must ensure that the account is not closed while a deduction order is active, prevent transactions that would reduce the balance below the required deduction amount—for example, the transfer of funds—and ensure that these actions do not cause disadvantage to the liable person.
I have a few questions about those responsibilities. How are banks expected to assess disadvantage or hardship, based on what is likely to be very limited information available to them about their account holders? What guidance or criteria will be provided to banks to determine what constitutes a disadvantage to the liable person? How can banks assess the potential immediate impact of blocking transactions, including preventing spending on essentials—for example, food or utility bills—and any consequences that might arise from that? How will they consider longer-term financial obligations, such as rent or mortgage payments, disruption to which could cause significant hardship?
The lack of a code of practice makes it difficult to properly scrutinise these measures. The code of practice is expected to provide crucial details on how banks should balance enforcement with protecting individuals from undue harm, but we will have to wait until after we have made decisions in Committee and in the Bill’s remaining stages to see it. It would be helpful if the Minister could clarify how these concerns will be addressed in the code of practice and provide as much specificity as possible.
Clause 27 states that account holders must not take actions that frustrate the direct deduction process, such as closing the account, moving funds elsewhere to evade the deduction or engaging in other actions that undermine the effectiveness of the recovery process. The matter of penalties for non-compliance needs to be looked at carefully. What penalties will be imposed if an account holder deliberately frustrates the deduction order? Would non-compliance be treated as a civil offence, or could it lead to criminal penalties in cases of deliberate obstruction? If the financial institution failed to prevent it, would that be a civil offence, or would it be seen as a regulatory issue?
Is there an appeal mechanism if an account holder can prove that a transaction was necessary and not an attempt to evade the deduction? For example, what would happen if someone urgently needed to pay rent or buy medicine and did not realise it would interfere with the deduction order? Would there be any flexibility in cases of financial difficulty, and how would that be assessed?
Given the significant responsibilities placed on banks and the potential impact on individuals, further clarity is needed on how banks will be guided in assessing disadvantage and hardship, how the code of practice will address these concerns and ensure practical implementation, what penalties will apply if an account holder frustrates the deduction process or if a financial institution fails to prevent such frustration, and what appeals or exceptions exist for necessary transactions that unintentionally interfere with the deduction order. Those clarifications are essential for ensuring that the system is both effective and fair.
Georgia Gould
It is important to set out again that these powers will be used in the last instance and, in many cases we hope they will be a deterrent. In the majority of cases, we expect people to engage with the authorised officers and come to a voluntary agreement. If people do not agree, the powers will be used only after an application to a court to determine the ability to recover that debt. In the first instance, we expect these powers to be used in a very limited fashion; the impact assessment talks about fewer than 10 cases a year. There is ample time to work through with banks how these powers are used and ensure that it is proportionate.
The shadow Minister raised concerns that the powers are too harsh in some cases and that they will leave people vulnerable in others, which shows the balance involved. The measures have been carefully thought through, and they include safeguards for vulnerability but also the ability to step in if people are deliberately frustrating the process.
We will issue guidance to banks on how the three months of bank statements will be determined, and authorised officers will work with banks to ensure that this works effectively. The shadow Minister asked about the penalty. It will be a £300 fixed penalty notice for failing to comply. As with every part of this, people will be able to request a review and, ultimately, to appeal.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Clause 27 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Gerald Jones.)
Border Security, Asylum and Immigration Bill (Fourth sitting)
Tuesday 4th March 2025
(1 day, 19 hours ago)
Public Bill CommitteesBorder Security, Asylum and Immigration Bill 2024-26 View all Border Security, Asylum and Immigration Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Notices of Amendments as at 4 March 2025 - (4 Mar 2025)
The Chair
Would everyone please ensure that all electronic devices are turned off or switched to silent? We now continue line-by-line consideration of the Bill. The grouping and selection list for today’s sitting is available in the room, as well as on the parliamentary website. I remind Members about the rules on declarations of interests, as set out in the code of conduct.
Matt Vickers (Stockton West) (Con)
It is a pleasure to serve under your chairmanship on your first outing, Mr Stuart. Clause 5(3) requires those who are co-operating with the commander in the exercise of their functions to put in place arrangements governing co-operation between the commander and that person. Does the Minister have a view about what those agreements will look like and what sort of obligations will fall on both parties?
The Minister for Border Security and Asylum (Dame Angela Eagle)
It is a pleasure to serve under your chairmanship, Mr Stuart. It will be the first occasion of many, I am sure. I hope you enjoy chairing Bill Committees as much as I enjoyed doing so in the previous Parliament.
Clause 5 places a duty on partner authorities to co-operate with the commander in the carrying out of their functions. The commander is tasked with maximising the effectiveness of our collective response to border security threats. That requires a whole-of-Government response, which will be enabled by this clause. It is recognised that partner authorities have wide-ranging functions that extend well beyond tackling border security threats. The duty set out in the clause extends only so far as it is appropriate and compatible with partner authorities’ other functions. That ensures that partner authorities across the system work in lockstep to enhance border security while continuing to enable the vital work undertaken by partners in other contexts, beyond border security matters.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6
The Board
Question proposed, That the clause stand part of the Bill.
Dame Angela Eagle
Clause 6 places a duty on the Border Security Commander to establish and maintain a board to assist with the exercise of their functions. That unique forum enables senior representatives from across the border security system to convene to shape our collective response to organised immigration crime and other border security threats. The commander will consult the board when developing strategic priorities for border security, which makes the board a crucial forum in shaping the whole-of-Government response to these threats.
Matt Vickers
Clause 6 states:
“The Commander must establish and maintain a board to assist the Commander in the exercise of the Commander’s functions.”
It is all quite open-ended: the chair will be the commander, and the board will be made up of one or more representatives from each relevant partner authority. Will the Minister explain on what basis the commander might decide to have representatives from partner authorities? Why do all partner authorities not need to be represented?
Subsection (6) states:
“The Commander must hold meetings of the Board at such intervals as the Commander thinks appropriate.”
Does the Minister have any views about how regular the meetings should be? What sort of matters does she envisage the board will deal with?
Dame Angela Eagle
The Bill is a framework within which the Border Security Commander operates, but it is not prescriptive because the people who drafted the Bill could not see what the priorities will be in the future. It is a framework that enables the Border Security Commander to respond to what is going on at the time, without limiting him.
There has been a common theme throughout the speeches from the Opposition. They seem to feel that somehow the commander does not have sufficient empowerment to command the border security system, that he is not independent enough, and that he somehow cannot get things done, but the functions outlined in these clauses are not the sole capabilities of the commander’s role as empowered by the Home Secretary and the Prime Minister.
The Border Security Command is not an operational entity, but a strategic leader for border security. Representatives on the board would be Departments such as the Foreign, Commonwealth and Development Office, His Majesty’s Revenue and Customs, the Department for Transport, the Department for Environment, Food and Rural Affairs and the Cabinet Office, as well as operational partners such as the National Crime Agency, the UK intelligence community and security services, Border Force, Immigration Enforcement and policing. Those kinds of people will be convened for a strategic purpose. It makes sense, if we think about it, that the commander can bring these people together as and when he or she sees a need for them to meet, depending on what is on the agenda and what is going on.
The commander is already using the role and its associated capabilities to deploy key functions to lead on border security across Government, including deploying additional resources across partners, such as the additional £150 million for border security that has been announced by the Government, and developing border security legislation to be used by operational partners, such as the powers in this Bill. In last week’s evidence sessions, we heard from operational partners such as the police, the NCA and the Crown Prosecution Service on how useful they felt the powers in the Bill would be in their everyday operational capacity. The operational commander can also lead on international engagement diplomatically, and has accompanied both the Prime Minister and the Home Secretary on journeys to Italy, Germany and Iraq to ensure that we have meetings at the highest levels with people in other jurisdictions, to try to get more co-operation going to deal with the cross-border issues of border security.
The Bill provides a new significant wide-ranging power to lead the border security system strategically, which is being done for the first time. All partner authorities, defined as those public bodies with functions in relation to border security, must, as a legal duty, have regard to the strategic direction set by the commander. However, this works best if there is not a battle between different bits of the Government—if there is co-operation and co-ordination—and that is what these structures are designed to try to achieve. The Bill will, for the first time, provide a clear and long-term vision for border security, bringing together and providing leadership to all parts of the system that work to maintain the integrity of our border and immigration systems both domestically and internationally.
I hope that that has provided a little more explanation for the Opposition on the thinking and approach behind some of the powers set out in the clauses we are considering, and most specifically in clause 6.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Clause 7
Delegation by the Commander
Question proposed, That the clause stand part of the Bill.
Dame Angela Eagle
Clause 7 ensures that the functions of the Border Security Commander can be delegated to an authorised civil servant when required. Flexibility in the exercise of these functions will support the most efficient and effective delivery of the Government’s actions to tackle border security threats.
Matt Vickers
Clause 7 makes provision about the delegation of the commander’s functions. Subsection (1) provides that
“The functions conferred on the Commander by this Chapter may be exercised by any civil servant authorised by the Commander for that purpose.”
This is further evidence, were any needed, that the post of commander might not be a serious one. We have already seen that the Bill does not specify any minimum qualifications or experience for the commander, and we have seen why: they are not really in charge of anything.
There are serious questions to answer on the delegation of functions. What sort of functions does the Minister envisage the commander potentially delegating under this clause? Can any specific functions be named? The Bill does not specify any level of seniority for those the commander might delegate functions to. Is there any grade within the Home Office that the Minister thinks it would not be appropriate for the commander to delegate to? What oversight will there be of any delegation process?
Dame Angela Eagle
I set out in some detail in my reply on the previous clause some of the things that the commander is involved with, including some of the meetings he is involved in convening and the purpose of those strategic meetings. During the evidence we heard last week from operational partners, both the NCA and the police chiefs set out some of the benefits they felt there would be.
Margaret Mullane (Dagenham and Rainham) (Lab)
Does the Minister agree that we seem to be having repetition in our discussions about the commander and his abilities within his role? The role is respected, and that came up in the evidence we heard. Does she feel that there is repetition of this point, with the Opposition picking up on it at every moment?
Dame Angela Eagle
The Opposition have asked which bits of the commander’s functions may be delegated and to what level. In theory, it can be any of them. We are trying to ensure that there are no issues in primary legislation that would mean something is prevented from being delegated that would have been effective.
I do not think that the hon. Member for Stockton West would expect me to go into great detail about what might happen with delegation in the future, but I can give an example. If there was to be a high-level visit to Iraq to conclude a memorandum of understanding on returns and activity against organised immigration crime, and the commander was detained elsewhere, it would be possible to delegate that function to somebody who would then go in his place.
We are trying to get to the stage in legislation where we create the commander and give flexibility as to how the job can be put into effect in scenarios that may crop up, without being too prescriptive. I hope that the hon. Member for Stockton West will accept that example of the sort of thing that may crop up.
Chris Murray (Edinburgh East and Musselburgh) (Lab)
It is quite interesting to hear the points that the Minister is making, considering the conversation we had this morning about the commander being functionally a civil servant. Although I was never officially a civil servant in the proper sense, from my experience it is really important that senior leaders within the civil service are able to avail themselves of delegation capacities as needed.
It can be done for many reasons. It could be a bandwidth issue, where someone has multiple priorities and needs to delegate to someone else because they are not able to be in two places at once—and looking at the responsibilities of the commander as set out in the legislation, there are a lot. It could also be a resourcing issue or because of a conflict of interest. That brings me to the point I was making about this being a civil service role; there need to be proper conflict of interest considerations. That is what we are taking account of here.
Dame Angela Eagle
My hon. Friend is right that circumstances often crop up that require this kind of provision. All clause 7 does is allow it, so I commend the clause to the Committee.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Clause 8
Designation of an Interim Border Security Commander
Question proposed, That the clause stand part of the Bill.
Dame Angela Eagle
Clause 8 ensures that the functions of the Border Security Commander can continue to be exercised in the event that the post of commander is vacant for a period, or if the commander is incapacitated or temporarily unavailable. This ensures that the work to enhance our border security and undermine the people smuggling gangs threatening our borders continues in the event that the post either falls vacant or is effectively vacant for a period.
Matt Vickers
Clause 8 allows for an interim Border Security Commander to be designated. I would be grateful if the Minister could confirm that this is essentially a stopgap either because a Border Security Commander is going to step down without a replacement yet secured, or for reasons of temporary incapacity to carry out their functions.
Subsection (2) specifies that the interim Border Security Commander can be designated
for such period as the Secretary of State thinks appropriate.”
I would like the Minister to explain whether there is a limit to what could be regarded as appropriate. This is, on the face of it, a temporary measure, so what counts as temporary for these purposes? What are the safeguards against an interim appointment carrying on indefinitely?
Subsection (3) says that the temporary designation can last no
“longer than the period for which no Commander is designated or (as the case may be) the Commander is incapacitated or unavailable”,
but no time limit is set out in the Bill. Are there any minimum qualifications the Minister would expect an interim commander to have?
Dame Angela Eagle
Clause 8 is clearly there in the event of the commander being incapacitated or ill and unable to do the job for a while. It is not unusual that people have life experiences that mean they have to take time off work. In that kind of instance, an interim commander could be appointed, pending the return of the role holder, who may be receiving medical treatment or may be incapacitated in some way. There may also be a gap between the resignation or retirement of a commander and reappointment, although one would hope that planning ahead would mean that that would be minimised. The clause addresses the practical issue of having an interim in case there were an issue with appointment.
The interim commander would, obviously, be expected to have the skills to do the job to the full extent. No time limit has been put into primary legislation because if there were a hard timeline it would make it harder in practical terms to get a replacement. It is very much a horses for courses thing, allowing there to be an interim in the case of incapacity, retirement or replacement while the replacement is advertised for and appointed in the usual manner.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Clause 9 ordered to stand part of the Bill.
Clause 10
Exclusion of application to the armed forces
Question proposed, That the clause stand part of the Bill.
Dame Angela Eagle
Clause 10 states that the duties in this chapter of the Bill do not apply to the armed forces, clause 11 makes amendments to the Data Protection Act 2018, and clause 12 provides definitions of the terms used. The work of the armed forces and the Ministry of Defence makes a significant contribution to the security of the United Kingdom. The Border Security Commander will work across Government, including with the Ministry of Defence, to enhance our border security. Clause 10 recognises the unique work of the armed forces. While the Border Security Commander will work closely with the armed forces, including through the military aid to the civil authorities process, it is correct that the important duty of our armed forces remains independent from the functions outlined in this chapter. That is achieved by clause 10.
Clause 11 amends the Data Protection Act 2018 to ensure that the Border Security Commander may process data for law enforcement purposes. That information is vital to build a shared understanding of the nature of border security threats and inform the priority setting process. Clause 12 provides definitions for the terms used in chapter 1 of the Bill for the reader’s understanding and to ensure clarity on definitions during the implementation and operation of the legislation.
Matt Vickers
Clause 10 makes it clear that this chapter does not apply to the naval, military or air forces of the Crown. Clause 11 is an amendment to the Data Protection Act 2018 to allow the Border Security Commander to be added to the list of competent authorities in relation to the processing of personal data carried out for a law enforcement purpose. Given how toothless the Border Security Commander appears to be, will the Minister explain why this measure needs to be added to schedule 7 of the Data Protection Act, as well as what law enforcement purposes the commander will have and for what purpose they will be processing personal data?
Dame Angela Eagle
The hon. Member asked why the Border Security Commander should be processing data collected from electronic devices. He will know that later in the Bill, there are some new powers that involve collecting, in an intelligence-led way, data from suspected organised immigration criminals. The point is to ensure that data is collected in a lawful manner, and that is why clause 11 allows the Border Security Commander to process data for law enforcement purposes. Some of that is about the counter terrorism-style powers, which we will discuss in relation to later clauses—I do not want to have that debate here—but it is really an enabling power to put beyond doubt the legality of the collection of such material.
Question put and agreed to.
Clause 10 accordingly ordered to stand part of the Bill.
Clauses 11 and 12 ordered to stand part of the Bill.
Clause 13
Supplying articles for use in immigration crime
Pete Wishart (Perth and Kinross-shire) (SNP)
I beg to move amendment 3, in clause 13, page 7, line 12, at end insert—
‘(1A) For the purposes of subsection (1), P cannot commit an offence if P is an asylum seeker.’
This amendment would specify that the offence created by clause 13 (“Supplying articles for use in immigration crime”) cannot apply to asylum seekers.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Amendment 4, in clause 14, page 8, line 11, at end insert—
‘(2A) For the purposes of subsection (1), P cannot commit an offence if P is an asylum seeker.’
This amendment would specify that the offence created by clause 14 (“Handling articles for use in immigration crime”) cannot apply to asylum seekers.
Clauses 14 and 15 stand part.
Pete Wishart
It is an absolute pleasure to serve under your chairing this afternoon, Mr Stuart. I welcome you to the Committee.
Clauses 13 to 18 are where we start to get into the serious business of the Bill, and where some of its most concerning and controversial aspects are revealed. Nowhere is that more certain than in clauses 13 and 14.
The Government tell us that their whole intention and focus is exclusively on smashing the gangs, disrupting their business and bringing to justice as many of the people associated with and involved in this vile trade as possible. In everything we do in the Committee and in the House, the community must ensure that the Government are supported in that ambition and intention. That is one thing that unites the whole House, and we wish the Government every success in disrupting the gangs, smashing their business operations and bringing them to justice.
As we look at clauses 13 and 14, the first thing we have to do is assess and judge whether they assist in that process. I think we have to come to the conclusion that they do not, and they could make the situation a lot worse. They will certainly make the conditions of those who seek to come to our shores—some of the most wretched people in the world—much harder and more intolerable.
Jo White (Bassetlaw) (Lab)
Does the hon. Member hold the view that an asylum seeker cannot be above the law when it comes to participating in smuggling gangs?
Pete Wishart
I do not think anyone would assert, contend or propose that. Everybody is subject to the laws. Clauses 13 and 14 are designed to create new ways to criminalise people. I have listened carefully to the Government’s rhetoric, and I believe the focus and ambit of these new laws is to smash the gangs and disrupt their business, but they will not do that. The only people who will be ensnared, entrapped and put on the wrong side of these laws are asylum seekers. I say candidly to the hon. Lady that we are creating new ways to further criminalise the most wretched people in the world, and that is a grotesque ambition for this Government.
I tried to find out from the senior law officers who gave evidence how many members of gangs would be apprehended and brought to justice as a result of these new clauses. The law officers could not tell me. I do not blame them for that; they probably did not know. I suspect it would be really difficult even to make some sort of guess about how many criminals would be brought to justice as a result.
I also asked what would be the ratio of ordinary asylum seekers to gang members—the ones who secure this vile trade—but the law officers could not tell me. However, I know and suspect, as I am sure they do, that nearly everybody who falls foul of the clauses will be an asylum seeker. I suspect they know—I do, and probably everybody else does—that very few gang members will be brought in front of any of our judiciary as a result of the provisions.
Chris Murray
There is an issue around taxonomy and categorisation here. Anyone is entitled to claim asylum. It is a universal human right. Anyone from any nationality and background, whatever their criminal history, is entitled to make a claim to be an asylum seeker. It is possible to be a member of a criminal gang and plan on claiming asylum. From my 15 years of working in the asylum and immigration service, I know it is an undeniable point of fact that some people exploit that to delay or get around the system, and we must act on such abuse.
Does the hon. Member agree that we have to be careful in our classifications? There is a distinction between an asylum seeker who has a genuine claim to refugee status but who might not be eligible, and someone exploiting the system.
The Chair
Before the hon. Member responds, that was far too long, Mr Murray. Please try to keep interventions short. Of course everyone is welcome to speak in the debate.
Pete Wishart
Thank you, Mr Stuart. That is a reasonable point; I think the hon. Gentleman is on to something. Of course some gang members will pretend to be asylum seekers, but it is up to the fine people who came in front of our Committee to determine and ascertain the truth. We should not create further ways to criminalise people that focus almost exclusively on asylum seekers. We must find ways to differentiate; we cannot have blanket, broadly defined clauses that include everybody.
The hon. Member for Edinburgh East and Musselburgh has a fine history and record of working with asylum seekers and refugees. He has seen the briefings, as I and all Committee Members have. He will therefore know that practically every charity and organisation that works with, and tries to improve the lives of, asylum seekers and refugees tells us that ordinary asylum seekers—those fleeing conflict, oppression and extreme poverty—will be the ones caught up in these new measures.
My amendments are very straightforward. Let us exclude asylum seekers from the provisions of clauses 13 and 14. I want to do that for a number of reasons, but the one the Minister might be most attracted to is that doing so will actually help the Border Security Commander. It will allow him exclusively to focus, laser-like, on the Bill’s main target: the gangs that ply this evil trade. Let us forget about the riff-raff and the chaff. Let us focus our attention on those who arrange and organise this vile trade across the channel, and go for them.
Tom Hayes (Bournemouth East) (Lab)
Does the hon. Gentleman agree with what Rob Jones, the director general of operations at the National Crime Agency, said in his oral testimony last Thursday? He said:
“We are not looking to pursue asylum seekers who are not involved in serious and organised crime. That is not what we do. This is about tackling serious and organised crime and being as effective as we can be in doing that.”––[Official Report, Border Security, Asylum and Immigration Public Bill Committee, 27 February 2025; c. 35, Q35.]
If we read the tea leaves, it is almost as if the hon. Gentleman is saying that there is an intent to pursue asylum seekers. Moreover, the NCA’s remit is already to be laser-focused and go after those gangs, as he recommends.
Pete Wishart
Rather lengthy interventions are a feature of this Committee, but I am happy to go with that if everyone else is. The hon. Gentleman is right to refer to the National Crime Agency. I listened carefully to what Mr Jones had to say to the Committee, and I have no doubt about his intention. I do not think he really wants to ensnare asylum seekers; I do not think that is his focus. But he has these two badly drafted and broadly defined clauses as the net that will scoop everything up. As the hon. Member for Edinburgh East and Musselburgh said, everybody will be in that net, and it will be a matter of trying to sieve them.
Why not start with the presumption that we will go for the gangs exclusively and leave aside those who come our shores to apply legitimately for asylum in the United Kingdom? Let us not waste time criminalising such people. The main problem, as I have said, is that the clauses are so broad in scope. They are not just a fishing net; they are a trawling net, trying to lift out everybody who comes across the channel.
The clauses cover not only direct acts of people smuggling, but incidental activities that may not involve any criminal intent. In combination with other clauses, they would make it a crime to supply or receive almost any item that one suspects could be used to facilitate illegal travel to the UK. The proposed legislation criminalises collecting or even viewing information that could be useful in making irregular journeys, if there is reasonable suspicion that it could assist others in migration. Although the Government couch a lot of this in humanitarian language, the provisions will not prevent deaths and harm at sea. Instead, they will criminalise people on the move who have no alternative route to the UK.
Let us look at the provisions in a little bit more detail. Supplying, offering to supply and handling articles for use in immigration crime will now get someone a maximum sentence of 14 years’ imprisonment. Although there are some limited humanitarian exemptions—for example, offering food and drink—the provisions considerably broaden the potential prosecution of migrant assistance and support. Importantly, with all the proposed new offences, there appears to be no explicit defence for those who are on the move.
Then there are the provisions about collecting information for use in immigration crime. Such information includes arranging departure points, dates and times; in other words, information that it would be necessary to gather if someone attempted to make such a journey themselves. The Bill makes it clear that evidence could include someone’s internet history and downloads. The Government contest this, but even looking up a weather map could put someone on the foul side of these clauses. I expect the Government will tell me, “No, of course that won’t happen,” but nothing in the clauses that we are debating states that that activity is exempt.
Becky Gittins (Clwyd East) (Lab)
It is a privilege to serve under your chairship, Mr Stuart. Did the hon. Member feel that the Crown Prosecution Service gave that assurance at our evidence session last week? The witness categorically stated that such circumstances would not pass the criminal test or the public interest test. Does the hon. Member think it is important that we do not make such inferences when we discuss the Bill, so that we can see clearly how our criminal justice system applies these things?
Pete Wishart
That is a helpful and useful intervention, and the hon. Lady is right that the CPS did say that. I listened again very carefully to what was said, because concerns about these provisions have been raised repeatedly. I am sure that the CPS is serious about that, but I challenge the hon. Lady to look at the provisions and tell me how such a scenario could not be caught. The Bill is badly drafted because it provides the conditions to allow such a perception to develop. I know the Government do not want to arrest people who are looking at weather maps. I am certain that is not their intention at all, but when we examine the Bill we can see that it will allow that very thing to happen.
The Minister refers to the provision in section 25 of the Illegal Immigration Act 1972 or 1973—
Pete Wishart
1971—there we go. Section 25 of that Act offers the protection of allowing for a reasonable explanation of why people are caught up in such activity. That is useful when it comes to this Bill, but why do we have to rely on something like that? We are creating a new Bill, which does something specific and unhelpful for some of the poorest and most wretched people who exist on our globe. We have a responsibility for those people under our international obligations and conventions, and this new legislation does nothing to assist them.
The collection of data from people’s phones is facilitated by the Bill, which creates new broad powers to enable the search and seizure of electronic devices. I will come back to the main point I made on Second Reading. We did not get much time to elaborate on this, but I think it is pertinent to the clauses that we are debating, and the Committee must consider it properly.
The gangs have a monopoly and an exclusive right to the irregular migration market. There is no other way for asylum seekers to get to the UK. It just is not possible. There are safe routes available for a small number of countries, but for the vast majority of potential asylum seekers in war-torn regions, areas and countries around the world, the only way to claim asylum in the United Kingdom is to put themselves at the mercy of the gangs, and to go on a small boat to get across the channel.
Business is booming. I do not know if anyone saw the shots today from the camps in France—I think it was on Sky News. What a hell on earth they are! What a disgrace that is for us, who are part of the problem. We cannot get the situation resolved, and we are keeping some of the poorest people in such circumstances. Shame on us, and shame on everyone in the international community who allows such conditions to develop and thrive. Business is booming for the illegal gangs.
I will tell you something else, Mr Stuart. It will only get better for the gangs when the Government cut the international aid budget. What do they think will happen? Do they think that conditions in those areas will get better? Of course they will not. That will lead to so many more people making the journey to the UK, and it will be down to the Government.
Pete Wishart
I do not know whether the hon. Gentleman has noticed, but for the last three years we have had a refugee crisis from Ukraine—and there is such a distinction between how we have responded to Ukraine and how we have responded to everybody else. We put forward legal routes to allow Ukrainians to come to our country. My local authority, Perth and Kinross council, has the largest number of refugees from Ukraine in the whole of Scotland except the city of Edinburgh. I am immensely proud of the generosity of spirit of the people I represent who are taking part in that scheme.
Is it not so different when we allow schemes like that? That is what we are asking the Minister for. We will have a depopulation crisis towards the middle of the century, and immigrants might be at a premium by 2060 or 2070. Why have we not been inventive and creative? Why are we not looking to do things other than leave that mess—that disgrace—on the shores of France, as we have done to date?
I am sure the Minister will tell us that there is the defence of “reasonable excuse”. I accept that, and I know that it applies to each of these new offences—in other words, if a person has a reasonable excuse for engaging in the relevant conduct, they will not be guilty of the offence. I know that that is exactly what she will tell me, and she is already indicating that that is the case. But the burden lies on the defence to adduce sufficient evidence of a reasonable excuse, and if they have done so, it is for the prosecution to prove the contrary beyond reasonable doubt.
To be fair, the Bill sets out a non-exhaustive list of circumstances in which the defence of reasonable excuse would apply. Under clause 13, for example, a person will have a reasonable excuse if
“their action was for the purposes of carrying out a rescue of a person from danger or serious harm”.
They will also have a reasonable excuse if they were acting on behalf of an organisation that aims to assist asylum seekers and does not charge for its services. All that is purely a matter of judgment, and there does not seem to be a specific threshold for conviction. The maximum sentences for each of the new offences is pretty stiff and those for offences in clauses 13 and 14 in particular are disproportionately high. To put it in context, the offence of possession of articles used in terrorism has a maximum sentence of 15 years’ imprisonment, but someone could get 14 years for falling foul of the provisions in clauses 13 and 14.
The Bill is likely to have an impact on the prison population—I think I heard the hon. Member for Stockton West address some issues about the prison population with the Minister.
Tom Hayes
It is a pleasure to serve under your chairpersonship, Mr Stuart, as I should have said earlier. Is the hon. Gentleman saying that the proposed sentence for the facilitation of small boat smuggling and criminal activity is too high? Did I hear that correctly? Please do correct me if I am wrong.
Pete Wishart
The hon. Gentleman is wrong, and he did not hear me correctly. I am talking about the new offences in clauses 13 and 14, falling foul of which could result in a maximum of 14 years’ imprisonment. He might contend that that might get some gang member, but I am suggesting otherwise. I suspect that practically nobody from gangs involved in this vile trade will be caught up in these offences, but ordinary asylum seekers will be.
Lastly on the prison population, there is a notable lack of robust evidence that lengthier custodial sentences achieve a deterrent effect or a reduction in reoffending. That is explicitly not acknowledged in the impact assessment for the Bill, which states:
“There is limited understanding of the behavioural impact of this intervention, so the deterrence effect on dangerous behaviour may not be realised as intended.”
I do not know whether the Minister believes that the new laws she is creating will make the slightest bit of difference to those who are in areas of conflict or fleeing oppression. I am not entirely sure that asylum seekers sitting down on the beach, or in the deserts of Sudan, in Afghanistan or in Iran, are the least bit cognisant of the developing, hardening and draconian laws of this country, put in place in Committees like this one. I suspect that they do not know about them—and, if they did know about them, they would not care less. Their sole and exclusive priority is saving their family’s and their children’s lives, and getting the hell out of that place.
That is the irritation; those asylum seekers could not care less about the Border Security, Asylum and Immigration Bill that is being debated here today. They want out, and they will do anything possible to rescue their family. Imagine that, after all that journey, after sitting in these boats, after being in the hands of the people smugglers and those gang members, they arrive in the good old United Kingdom, only to be apprehended on the basis of clauses 13 and 14 of the Bill.
Mike Tapp
His speech—my apologies; I will not make that mistake again. It is really important that we look at what is covered in the Bill, and how it enables our Border Security Command, the National Crime Agency, the police, the border forces and the security services to act. We said before the election, in our manifesto, that we were going to take this on in a counter-terror style, so that we can get to those who are looking to launch the boats before they launch them. These clauses go some way to achieving that; I will not quote the NCA director general again, but he was very enthusiastic about that. The further clauses include acts taking place abroad and not just in the United Kingdom.
On the specific amendments, we must be clear. We do not know who is a genuine asylum seeker at the point that they seek to cross; we will not know for some time. The elephant in the room is that, even if they are genuine asylum seekers, they are in France. They are not in danger, as they would be in Sudan, and putting others at risk by preparing these crossings, facilitating them or being involved is not acceptable. Asylum seekers are not above the law, and these clauses ensure that they will be held to account.
Katie Lam (Weald of Kent) (Con)
As hon. Members will have read, clause 13 creates a new offence of
“Supplying articles for use in immigration crime”.
The offence has two limbs. First, that the person supplies or offers to supply those articles to another person, and secondly that, when they do so, they know or suspect that the item will be used in connection with any offence under sections 24 or 25 of the Immigration Act 1971—illegal entry and assisting unlawful immigration, respectively. I have a question for the Minister on the reasonable excuse elements of the clause. It is a defence for a person charged with this offence to show that they had a reasonable excuse. Subsection (3) defines a reasonable excuse as explicitly including that,
“(a) their action was for the purposes of carrying out a rescue of a person from danger or serious harm”,
which seems reasonable, or,
“(b) they were acting on behalf of an organisation which—
(i) aims to assist asylum-seekers, and
(ii) does not charge for its services.”
That second defence seems to the Opposition to create a large loophole in the law. Does the Minister accept that these defences will have the effect of exempting non-governmental organisations from criminal charges for helping asylum seekers to cross the channel? Why would the Government seek to do that?
The defence categorises organisations that aim to assist asylum seekers into those that do not charge for their services and those that do. Surely this criminal offence is a criminal offence regardless of who is responsible; why would it be any less criminal if someone does it voluntarily? Why is making money from something the determinant of whether it is a crime? As we heard in evidence, charities can be “mischievous”—I think that was the word used—in their activities and in how close they come to facilitating illegal crossings to the UK. Does the Minister accept that the activities of some charities can veer close to the line of facilitating illegal entry? If so, what do the Government intend to do about it?
The threshold for the defence is low. The accused simply needs to provide sufficient evidence to raise an issue, and the contrary must not be proved beyond reasonable doubt. Might that be why the Home Office impact assessment considers that between four and six prison places—I believe the central estimate is five—will be required per year once this steady state is reached? The Home Office has lauded the new powers and offences in the Bill as being key to smashing the criminal smuggling gangs, but it does not appear to consider that many people will be convicted under the new offences. How can both those things be the case?
Clause 14 creates the new criminal offence of handling articles for use in immigration crime. The person has to receive or arrange to receive a relevant article, remove or dispose of an article for the benefit of another person, or assist another person to remove or dispose of a relevant article. Again, the clause provides the same defence to the offence as clause 13 does—namely, that the action of the accused was
“for the purposes of carrying out a rescue of a person from danger or serious harm”,
or that they were acting
“on behalf of an organisation which—
(i) aims to assist asylum-seekers, and
(ii) does not charge for its services.”
I therefore have the same questions for the Minister about this defence as I did for the defence in clause 13.
Clause 15 provides a definition of “relevant article” for the purposes of the new offences in clauses 13 and 14. There are exemptions for food and drink, medicines, clothing, bedding, tents or other temporary shelters, and anything to preserve the life of a person in distress at sea or to enable such a person to signal for help. Will the Minister set out the kinds of articles that she therefore expects to be captured by the offences in clauses 13 and 14? It would be useful to know what items the Home Office, Border Force and the police specifically wish to disrupt. There is also a power in clause 15 for the Secretary of State to amend the list of relevant articles. Will the Minister explain what purpose that power serves? The list of what counts as a relevant article is almost limitless, so does she envisage that the power will be used primarily to create exemptions?
The hon. Member for Perth and Kinross-shire has tabled amendment 3 to specify that if a person is an asylum seeker, they cannot commit the offence in clause 13: supplying articles for use in immigration crime. It would be good to understand why the Scottish National party does not think it is possible for asylum seekers to commit that offence. How are law enforcement officers supposed to know that a person is genuinely an asylum seeker—and even if they are, what happens if their application is subsequently rejected?
The hon. Gentleman also tabled an amendment to require the commander to include in their annual report information about how they have paid due regard to the Human Rights Act 1998 and the European convention on action against trafficking. My views are the same as those set out by my hon. Friend the Member for Stockton West on amendment 1.
Chris Murray
I apologise for my longer interventions, Mr Stuart; I will try to bundle them all into this speech.
One of the most important things that we heard during evidence was from Dr Walsh from the Migration Observatory. He said that demand for cross-channel crossings is essentially inelastic. Even if the price of a crossing doubles, there will still be demand for it; people rise to meet that price. That tells us that deterrence and disruption of the demand alone will never be enough to tackle the horrors that we are seeing in the channel at the moment. We must also disrupt the supply of ability to cross the channel. That is an important part of the Bill, and these clauses go right to the heart of it.
On the point about criminalising all asylum seekers, ahead of oral evidence, I read carefully the submissions we have had from organisations I have worked with in the past. I found the testimony of the Crown Prosecution Service very convincing. It stated clearly that in addition to the primary legislation, the CPS will produce guidance that will set out both the public interest threshold and evidential test that it would seek in order for a case to go to prosecution. It was very clear that the kind of hypothetical examples set out by the hon. Member for Perth and Kinross-shire would not meet that threshold.
On the point about decriminalising all asylum seekers, to clarify the point I was trying to make in my interventions, during a crossing anyone can declare themselves an asylum seeker. That then breaks down into different categories: someone who is genuinely eligible for asylum in the UK and will, when they go through the process, get refugee status; someone who is genuinely seeking asylum, but will not meet the threshold when they go through the process and will not get such status; and someone who knows that they are ineligible, or might be eligible on some counts, but is engaged in the criminal act of facilitating illegal entry into the UK and putting those other people’s lives in danger. At that moment, it is not possible to distinguish between those people; the asylum process is there to do that.
Were we to accept the premise of the hon. Gentleman’s amendment, it would be a wrecking amendment. I know it is not intended that way, but it would in reality be a wrecking amendment to any kind of intervention on a crossing at sea.
Pete Wishart
The hon. Gentleman neglects to mention one thing. He is correctly summarising what is happening with the amendments, but it is already illegal to arrive into the UK illegally—that is what is happening. That is why so many people have been arrested and are now being processed and sent back. It is illegal to come to the UK just now if you have no means to support yourself when you are here. All the Bill is doing is finding new ways to criminalise people. I do not know what the point of the new clauses is, when all that is already happening.
Chris Murray
The hon. Gentleman is making an important point, but I do not accept that the proposal is creating new criminal offences for all asylum seekers or for all people; it is creating new criminal offences for those engaged in the exploitation of people and the trafficking or smuggling of them across the channel in great danger. We cannot allow that to continue if we care about those people’s lives at all.
In the constituency of every single MP in this room, there will be a cannabis factory where a probably under-age Vietnamese child is working at cultivating cannabis. If they arrived in the past two years, they came across in one of those boats. Significant, serious organised crime networks are exploiting the vulnerability of those people in order to facilitate such crossings. This proposal is how we stop them doing it, and that affects every one of our communities.
I am aware that I am testing people’s patience, but I want to make two final points. The first is about the criminalisation of organisations that help asylum seekers. That is an important point, and the distinction has to be clear. I did have concerns about this measure being in the Bill, but the evidence sessions completely reassured me. The testimony of the CPS was that asking about the weather in Dover when in Calais, and those kinds of things, would not be facilitating immigration crime. The testimony that the National Crime Agency is using these measures to tackle serious and organised crime makes it clear what the purpose of the clauses is.
The hon. Member for Kent—
Chris Murray
Weald of Kent, sorry—that is quite far south for me. The hon. Lady made a point about the sector and charging for services. Some organisations out there are charitable and provide services for free, and some organisations charge enormous fees and are extremely exploitative. That is where that distinction comes from. That would be my interpretation of the legislation.
Chris Murray
That is absolutely right—but, in my experience of the channel coast and of working in the refugee sector, those do not exist. Anyone who was to do that would probably be giving immigration advice, which is a regulated component under UK legislation. That would be structured differently from someone on the coast or on a boat or vessel, in the way that this legislation sets out. I am happy to be corrected, but that would be my interpretation.
Finally, I come to the point about mobile phones and the different things listed that can be seized when a vessel is disrupted. Last week, we heard so much evidence—there is so much evidence out there—that the crossing of the channel is the final stage in a very long process involving criminal gang networks, organised crime networks and just immigration networks that stretch through Europe, including allied countries and countries very difficult for us to have relationships with. We know that those smuggling networks are all orchestrated by mobile phone, so it is important that the Bill incorporates that.
On the concerns that the hon. Member for Perth and Kinross-shire about criminalising the most wretched people in the world, the exemptions in the Bill are clearly humanitarian. They are clearly the kinds of things that people need to survive on a dangerous sea crossing or on their arrival. The only exception is their phone. It is because we know that the data taken from those phones is critical in the fight that phones are excluded. That is why it is important that that component remains in the Bill.
Sarah Bool (South Northamptonshire) (Con)
It is an honour to serve under your chairmanship, Mr Stuart.
These provisions relate to the supplying or handling of articles, the majority of which will, I assume, be held outside the UK. Clause 17, which we will come to, tries to ensure that the offences have effect outside the UK, but how does the Minister see that working in practice? The majority of people will be out of the realms of this law, so how will we enforce it?
On clause 14, on the handling of articles, the Law Society has great concerns that asylum seekers may be victims if they are forced to handle goods. How does the Minister propose to address that point?
Dame Angela Eagle
We have had an interesting debate, and Members have come at this complex problem from different angles. The hon. Member for Perth and Kinross-shire would give everyone who gets on the boats the benefit of the doubt, the hon. Member for Weald of Kent was somewhere towards the opposite end of that spectrum, and we had everything in between.
The important thing that we need to get right in this Bill is that we must give those who are trying to prevent dangerous boat crossings all the tools they tell us they need to help them deal with the criminal gangs that have been allowed to take hold across the channel and who are currently perpetrating this evil trade. We all agree that we want to stop that.
I am starting by talking about what we agree on, and I will then explain how the clauses will assist. We all agree that the right way to go about this is to ensure that the decisions about who is allowed to come into our country are taken by the authorities in the country, rather than by sophisticated, internationally organised criminal gangs with supply chains that go across many jurisdictions, and which make millions out of their illegal trade.
I want to give the Committee a couple of examples to put some flesh on the bones of what we are trying to do with the clauses in this group. Although people may think they are wide-ranging, their purpose is not to criminalise every asylum seeker, or even the vast majority of asylum seekers. Our approach will be intelligence-led. The National Crime Agency and others who police our borders have told us that these powers will assist them in doing the things they most want to do. The NCA gave evidence last week in which it said that its strategy is to prevent, which is to deter participation in organised immigration crime; to pursue, which is to disrupt the way that organised criminals work; to protect, which is to detect and act before the damage has been done—not wait until there are deaths in the channel, but stop small boats being launched in the first place—and to prepare, which is to manage and deal with the issues.
I am going to read into the record a couple of examples, to give Members an insight into what we are trying to achieve. These powers are short of those in section 25 of the Immigration Act 1971, because they relate to preparatory acts, which is what these clauses deal with. These are two case studies from the National Crime Agency. The first relates to the offence of handling articles. In November 2024, a man called Amanj Hasan Zada, who organised cross-channel small boat crossings from his home in Lancashire, was jailed for 17 years after being found guilty of people smuggling charges following an investigation by the National Crime Agency. Investigators were able to link him to three separate crossings made from France to the UK in November and December 2023, and he was convicted under section 25. Each crossing involved Kurdish migrants who had travelled through eastern Europe into Germany, Belgium and then France.
It is possible that the reasonable suspicion element meant that investigators would have met the requirements to arrest and charge him earlier, ahead of the section 25 powers becoming an option, if the new offences had been on the statute book when this was going on. This man was also moving between the UK and Iraq regularly, meaning that these powers would have assisted investigators. He was overseas, but he had access to some of these articles when he was in the UK, so he would have been in the scope of the offence, and we would have been able to interdict and arrest him earlier and prevent those crossings from happening. Part of the idea of the new offences is that they are intelligence-led, but they relate to preparatory acts. They are attempting to disrupt before the more serious section 25 offence happens, and therefore they will prevent some of the damage done if that is allowed to happen because the authorities do not have enough evidence to arrest on the more serious offence.
Let me tell the Committee about another case study. An investigation into an Albanian organised crime gang using small boats to facilitate illegal immigration to the UK led to the arrest of an individual who was identifying rigid-hulled inflatable boats for sale on behalf of that gang. The gang subsequently bought and used the identified boats for organised immigration crime purposes. The individual was never directly involved in the movement of migrants or the purchase of those boats; he simply sourced them. The NCA provided evidence that they were on the periphery of the organised criminal gang and were researching for the gang to support their criminality. Despite that evidence, he was never directly involved in the actual facilitation, so the case could not go through to charging.
The preparatory acts offence would have enabled prosecution in that case, as the individual took part in the research and planning of acts to facilitate organised immigration crime, despite not being directly involved in the facilitation and illegal entry of migrants. Both the type of information and the circumstances the information was collected under would be captured by the new offence, and the evidence that the NCA had would have been sufficient for a sentence of up to five years.
We are talking about doing prevention work, to disrupt, to interdict and to stop some of this stuff happening before it has reached its full maturity and people’s lives have been put at risk in the channel. It is a different approach. To sit, watch and wait until something has happened and people have perhaps died is one way of doing it, but the entire approach of the counter-terrorism style powers, of which the powers in this clause are an example, is what the NCA and other people have asked us to assist them with. They see the pattern in their information gathering: how these things are organised, what the patterns are, who is involved and how they do their business. They have demonstrated to me and others that these kinds of powers would be really useful in a preventive way and may very well save lives. I hope that giving those two examples will mean that we have more of a handle on the kind of things that the clauses are trying to do.
The hon. Member for Perth and Kinross-shire was worried that the powers will criminalise all asylum seekers. That is not the intention. The intention of these powers is to be completely intelligence-led and focused on perpetrators, whether they are on the periphery or directly involved. More than 95% of people whom we know of who arrive illegally on small boats claim asylum. The hon. Member’s amendments, which would take all people who claim asylum out of consideration of these offences, would be an obvious way of avoiding the offences being brought to bear and could be used by any of the people who are involved in organised immigration crime to avoid the powers being used against them. Therefore, while I am sure it was not his intention at all, the effect of the amendments is to wreck the approach to prevention and disruption that these powers represent in the Bill.
I want to be clear—it is important that I put this on the record, so I will say it again—that it is not the intention to target asylum seekers with these new offences. The offences do not penalise individuals for entering illegally any more than they are penalised already, but they criminalise the conduct of activities connected to facilitation and illegal entry offences through the supply or handling of articles. In practice, the focus will be intelligence-led and targeted at those who law enforcement believe to be working in connection with organised criminal networks. Believe you me, Mr Stuart, those networks exist in the UK and they come across on small boats themselves. They also travel between the UK and some of the countries of origin they are working with. We know that that is exactly what happens because we can track and follow some of them. It is therefore important that we can bring these powers to bear. We know there are individuals who have claimed asylum in the UK and operated criminal activity from within the UK as part of a wider criminal gang with networks overseas in order to facilitate smuggling into the UK—I have just given the Committee an example. That is a phenomenon we are aware of today and we cannot exclude anyone with an asylum claim from the scope of these new offences, as the hon. Member for Perth and Kinross-shire would want us to, regardless of the circumstances.
Excluding asylum seekers fuels abuse and exploitation of the asylum system, as well as the intentional frustration of our criminal justice system, with those involved in the supply and handling of articles able to claim asylum on arrival or arrest and therefore evade prosecution. I am sure that that was not the hon. Member’s intention, but I hope he will also take at least some comfort from what I have said about this power not being applied to everybody, but instead being very focused and intelligence-led. We cannot provide blanket exemptions. I hope given the explanation, he will therefore withdraw the amendments.
Turning more broadly to what the clauses will achieve in practice, clause 13 creates a new offence of supplying or offering to supply an article where the individual knows or suspects that the article is to be used in relation to an offence under section 24 of the Immigration Act 1971, which covers illegal entry, or section 25, which covers the facilitation of unlawful immigration.
Criminal smuggling gangs are using wide international and transnational networks to supply items for their criminal ventures. The new offence is intended to allow law enforcement to target those who act in a way that removes themselves from the direct act of people smuggling, so as to allow them to be caught under existing legislation. It will allow for earlier intervention, as in the example I have just used, potentially before boats have even been launched and lives risked. That is the prevention side.
Pete Wishart
I wish I could say that I was reassured by the Minister’s response. There were things she said that encouraged me and that I think she was genuine and sincere about. She, and everybody who has contributed today and who we have heard from over the past couple of weeks, is right that we do not want to arrest asylum seekers. That is the last thing we want to do, and I accept that that is the case in practically everything that anybody has said. However, more asylum seekers will be arrested because of these clauses. More will be facing justice, whatever way it applies, right across the United Kingdom because of these new offences.
What we have forgotten is that it is already illegal to enter the UK irregularly. In 2020, 6,477 people were arrested because they arrived in the UK irregularly. With clauses 13 and 14 we are not addressing the illegality of issues such as people coming to the United Kingdom; we are finding new ways of ensuring that those people will be subject to court proceedings—to being on the wrong side of UK law—and that is the thing that concerns us most.
Many people have referred to agencies that gave us support today. I listened to the NCA’s evidence, and some of it was very interesting and compelling. I accept that it wants to target the gang members and those involved in this violent trade, and that is what we should be helping it to do. Obviously, asylum seekers will get caught up in all that, but let us enable the NCA to focus exclusively on trying to apprehend the gang members and secure justice rather than trying to find new ways to criminalise people coming to the UK,.
Dame Angela Eagle
Will the hon. Gentleman not take my word that the offences will be intelligence-led? They are not targeting all asylum seekers, but they certainly would target someone coming over on a boat who may claim asylum, who has been involved in an organised immigration gang, and who has been organising the supplies for it.
Pete Wishart
I obviously accept the Minister’s word when it comes to all this, but we need to look at what is in the Bill. There are measures that we do not like and that we do not think will help to achieve the major objective, which is to disrupt the gangs’ business model and ensure that they are brought to justice. That just does not happen with these new clauses. The measure to which amendment 3 refers does not offend me in the same way that the subject of amendment 4 does. I will withdraw the amendment, but I reserve the right to push the next amendment to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 ordered to stand part of the Bill.
Amendment 4 negatived.
Clauses 14 and 15 ordered to stand part of the Bill.
Clause 16
Collecting information for use in immigration crime
Question proposed, That the clause stand part of the Bill.
Dame Angela Eagle
The provisions in clause 16 create an additional tool to act earlier to disrupt criminal gangs smuggling people into the UK. The new offence targets specified preparatory activities associated with people smuggling. These activities relate to the collection, recording and possession, viewing or accessing of information that is likely to be useful to a person organising or preparing for a journey of more than one person into the UK, where their entry or arrival constitutes an offence under section 24 of the Immigration Act 1971. These specified activities must also be conducted in circumstances giving rise to reasonable suspicion that the information being collected, recorded, possessed, viewed or accessed will be used in organising or preparing for such a journey.
This clause is levelled strongly against people-smuggling gangs and their associates. It includes a defence for someone of undertaking these specified activities for their own journey only. Also included as a defence is a non-exhaustive list of reasonable excuses, where one express excuse is conducting these activities to carry out or to prepare to carry out the rescue of a person from danger or serious harm. The maximum sentence for this offence is five years’ imprisonment.
Katie Lam
Clause 16, as the Minister has just set out, creates a new offence of collecting information for use in immigration crime. A person commits such an offence if a person:
“collects or makes a record of information of a kind likely to be useful to a person organising or preparing for a relevant journey or part of such a journey…possesses a document or record containing information of that kind, or…views, or otherwise accesses, by means of the internet a document or record containing information of that kind.”
This is an extremely wide set of information that is being criminalised. We understand the desire to keep these offences broad in order to capture as many offenders as possible, and we support that aim. However, if the definition is too wide, there is a risk that it becomes meaningless and therefore self-defeating. So, it is important to understand how the Minister believes law enforcement will assess whether the information is of a kind likely to be useful to a person organising or preparing for a relevant journey. Could she please explain how this test will be met in practice? It would also be helpful, for similar reasons, to know when the CPS will publish its guidance on what might meet the threshold for an offence to be committed under this clause. Finally, it is again a defence for an organisation that aims to assist asylum seekers if it does not charge for its services. So, we have the same questions and concerns about this defence as we did in relation to the preceding clauses.
Mike Tapp
I will quickly talk about this clause, because it is one of my favourite clauses in the Bill. Having worked in a counter-terror role in the past, I know that one of the most effective ways of preventing terror attacks on the streets of the United Kingdom is by identifying hostile reconnaissance, whether it is physical or online. That is why I am so happy to see this clause in the Bill, because it gives our authorities the opportunity to get to these vile criminals before they take to the seas.
Dame Angela Eagle
I take my hon. Friend’s point. This clause is very much about being able to capture preparatory work for any effort to evade our immigration laws and bring people over in small boats, illegally putting their lives at risk and potentially costing lives in return for money.
This clause is about a wide range of potential research, but there are also explicit safeguards within it that are sufficient to protect individual migrants and refugees, or families of refugees, trying to help family members to flee danger or serious harm. The defence that a person is conducting these activities exclusively in preparation for their own journey protects individuals from falling foul of this law. The clause is explicitly focused on and aimed at the work done by gang-affiliated facilitators of immigration offences.
The express reasonable excuse of
“carrying out, or preparing for the carrying out of, a rescue of a person from danger or serious harm”
may—depending on the circumstances—protect the families of refugees wanting to help their loved ones flee. There is also an express reasonable excuse for a person
“acting on behalf of an organisation which…aims to assist asylum-seekers, and…does not charge for its services.”
The list of reasonable excuses in the Bill is not exhaustive, so it is very much a question of looking at the information that has been gathered and making a judgment, knowing that the idea of this offence is to focus specifically on organised immigration criminality, not the individuals who may be asylum seekers or may be being trafficked.
Dame Angela Eagle
Clause 17 provides for the offences set out in clauses 13 and 14—the supply and handling of articles for immigration crime—and clause 16—the collecting of information for immigration crime—to apply to activities committed both inside and outside the UK, regardless of the nationality of the person by whom they are done. The activities criminalised by these offences are often carried out overseas, as well as in the UK, by perpetrators of various nationalities to facilitate people smuggling to the UK. This clause will strengthen the offences, enhancing the ability to disrupt those involved in this trade, indiscriminate of their nationality and the location of their crime.
Clause 17 also makes provisions for, where an offence under clauses 13, 14 or 16 is committed outside the UK, proceedings to be taken in the UK. For application in Scotland, this clause provides that those proceedings are to be made in accordance with the relevant processes and bodies of the devolved Administration. Finally, this clause provides that section 3 of the Territorial Waters Jurisdiction Act 1878, which requires consent from the Secretary of State for certain prosecutions of non-UK nationals on territorial waters, does not apply. In doing so, the impacts of these offences are not narrowed and law enforcement is able to pursue perpetrators of these offences when committed on territorial waters.
Katie Lam
Clause 17 sets out that the offences of supplying articles for use in immigration crime, handling articles for use in immigration crime and collecting information for use in immigration—so the clauses that we have just discussed—apply to things done both inside and outside the United Kingdom, regardless of the nationality of the person by whom they are done. In essence, clause 17 makes these three new offences extraterritorial. Subsection (2) provides that where the offence is taken outside the United Kingdom, proceedings may be taken in the United Kingdom.
When we heard evidence from Sarah Dineley, the head of international at the Crown Prosecution Service and the national CPS lead, she said that this provision and subsection (7) of clause 18, which extends the offence of endangering lives at sea to acts committed outside the UK, create challenges. She said,
“we can obtain intelligence and evidence from our overseas counterparts at both judicial and law enforcement level…the Crown Prosecution Service has a network of liaison prosecutors based across the world…we can issue what are called international letters of request. They require the recipient country to execute the action, or to provide the information that we have asked for.”––[Official Report, Border Security, Asylum and Immigration Public Bill Committee, 27 February 2025; c. 31-33, Q30.]
However, she also said that, for these new offences to work, there has to be “dual criminality”; that is to say,
“there has to be the equivalent offence in the country that we are making the request to, and there are some gaps across Europe in establishing dual criminality for all the immigration offences that we currently have on our books.”––[Official Report, Border Security, Asylum and Immigration Public Bill Committee, 27 February 2025; c. 33, Q33.]
Can the Minister reassure the Committee that offences equivalent to those in clauses 13, 14 and 16 exist internationally in relevant partner countries so that we can be assured that the extraterritorial scope of the offences will be effective in tackling organised immigration crime? Can she name those offences or share a list? We fully support the aims of the Government but are keen to establish the efficacy of these measures in disrupting the vile work of people-smuggling gangs.
Dame Angela Eagle
I thank the hon. Lady for her observations. In practice, the clause allows for prosecution where an offence was committed overseas. It may well rely on evidence sharing from an international partner. She is right to talk about the network of CPS prosecutors across other jurisdictions.
In the time that I have been in the Home Office, we have been strengthening those ties and growing them further. We have done a lot of work via arrangements such as the agreement we came to with the Italians; the German agreement; the work we have done with the Calais group; the information we are sharing in and around the Balkan countries about the routes that go through those countries; the work that the Home Secretary and the Border Security Commander have done in not only Italy, but Iraq, the Kurdish region and Tunisia and some of the other countries that tend to be countries of transit. We are focusing more and more on how we can co-operate operationally.
Some of that work involves cross-country and cross-jurisdiction work to hit particular organised immigration crime across the piece on a set day. There have been some very good examples of cross-jurisdictional days of action. The muscles in this area are strengthening and being worked more. This clause is an added power that will make it easier for us to continue that work.
Tom Hayes
I draw attention to what Sarah Dineley, the head of international at the Crown Prosecution Service, said in her testimony:
“I will start with how we rebuild relations with key allies.”––[Official Report, Border Security, Asylum and Immigration Public Bill Committee, 27 February 2025; c. 38, Q41.]
That implies that relations with key allies have been strained and need rebuilding. She then said:
“I have talked about our network of liaison prosecutors.”––[Official Report, Border Security, Asylum and Immigration Public Bill Committee, 27 February 2025; c. 38, Q41.]
She then talked about how there is regular engagement and said that engagement events with overseas prosecutors have increased in recent months. Does the Minister agree that one of the reasons we have had an asylum backlog in recent years, and our asylum system has been described as a disaster, a meltdown and worse in oral testimony, is that we strained our relations with key allies?
Dame Angela Eagle
Yes. When things are cross-jurisdictional and cross-country, one has to be able to co-operate with other jurisdictions with some respect for their particular prosecutorial approach in order to be able to share information and work together operationally and diplomatically to deal with the significant challenges that organised immigration crime presents. The Government certainly want to renew and strengthen their approach in that area, and have made a good start.
People should not underestimate how often people who break this law and would fall foul of this increase in jurisdiction come to visit the UK. It is possible that we could pick them up and charge them here and, in some instances, follow them and wait for them when they arrive. The extension of jurisdiction, which is the essence of clause 17, will provide us once more with what we hope will be an extremely effective new tool that will help us to disrupt and begin to dismantle some of the organised immigration criminal gangs.
Question put and agreed to.
Clause 17 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned.—(Martin McCluskey.)
Terminally Ill Adults (End of Life) Bill (Sixteenth sitting)
Tuesday 4th March 2025
(1 day, 19 hours ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 View all Terminally Ill Adults (End of Life) Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 4 March 2025 - (4 Mar 2025)
The Committee divided: - Ayes: 8 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 13 - Question accordingly negatived.
The Chair
Will everyone please ensure that their electronic devices are turned off or switched to silent mode? As I am sure the Committee is aware by now, tea and coffee are not allowed in the room.
Clause 4
Initial discussions with registered medical practitioners
Amendment proposed (26 February): 278, in clause 4, page 2, line 16, leave out from beginning to “nothing” in line 16 and insert—
“(1A) No registered medical practitioner may raise the subject of the provision of assistance in accordance with this Act with a person if that person has made an advanced decision which has been recorded in their medical records that they will not in future wish to seek assistance under this Act.
(1B) The provisions in subsection (1A) do not prevent a person indicating to a registered medical practitioner that they wish to change their previous decision and seek assistance under the Act if they have the capacity to do so.
(2) Other than the condition in subsection (1A),”.—(Sarah Green.)
This amendment would prevent a doctor from raising assisted dying with a patient if that patient had previously recorded an advanced decision that they would not in future wish to seek assistance under the Act.
Question again proposed, That the amendment be made.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 8, in clause 4, page 2, line 16, leave out from “practitioner” to end of line 20 and insert
“shall raise the subject of the provision of assistance in accordance with this Act with a person who has not indicated to that or another registered medical practitioner that they wish to seek assistance to end their own life”.
Amendment 124, in clause 4, page 2, line 16, leave out from “practitioner” to end of line 20 and insert
“shall discuss assisted dying with a person unless that matter is first raised by that person.”
The amendment prevents a registered medical practitioner from discussing the provision of assistance under the Act unless that matter is first raised by that person.
Amendment 319, in clause 4, page 2, line 20, after “person” insert
“who has attained the age of 18”.
Amendment 339, in clause 4, page 2, line 20, after “person,” insert
“, unless that person has a learning disability or is autistic, in which case—
(a) the person must be provided with accessible information and given sufficient time to consider it; and
(b) at least one of a—
(i) supporter, or
(ii) independent advocate;
must be present for the discussion.”
This amendment would require that, if the person is autistic or has a learning disability, they must be given accessible information and sufficient time to consider it. Additionally there must be at least either a supporter or independent advocate.
Amendment 368, in clause 4, page 2, line 20, after “person” insert
“, unless that person has Down syndrome, in which case the registered medical practitioner must be acting in accordance with any statutory guidance issued by the Secretary of State under the Down Syndrome Act 2022 to meet the needs of adults with Down syndrome.”
Amendment 320, in clause 4, page 2, line 21, after “person” insert
“who has attained the age of 18”.
Amendment 270, in clause 4, page 2, line 25, at end insert—
“(3A) Before conducting a preliminary discussion under subsection (2) the registered medical practitioner must ensure that the person has no remediable suicide risk factors which pose a significant risk to their life.”
This amendment requires that the doctor ensures that there are no remediable suicide risk factors before proceeding to the initial discussion about assisted dying.
Amendment 276, in clause 4, page 2, line 31, at end insert—
“(4A) A medical practitioner must not conduct a preliminary discussion with a person under subsection (3) until a period of 28 days has elapsed, beginning with the day the person had received a diagnosis of the terminal illness.”
This amendment would mean a doctor could not conduct a preliminary assessment until 28 days from the day the person received a diagnosis of the terminal illness.
New clause 6—Advance decision of no effect—
“An advance decision, made pursuant to sections 24 to 26 of the Mental Capacity Act 2005, which stipulates that the maker of the decision, having become incapacitated, wishes to be provided with assistance to end their own life in accordance with this Act, shall be null and void and of no legal effect.”
The new clause prohibits an individual from making an advanced directive for voluntary assisted death in the eventuality he or she were to become incapacitated at a future date.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Mr Efford.
As I have stated previously, my remarks on behalf of the Government on these amendments will provide a factual explanation. I shall not offer a position on how the Committee should vote, as that remains a matter of conscience. The overarching theme of the amendments relates to the requirement on how and when a medical practitioner may raise the matter of assisted dying.
Clause 4(2), as drafted, provides that nothing prevents a medical practitioner from using their professional judgment to decide when to raise the subject of assisted dying. Amendment 278 seeks to prevent a doctor from raising the subject of assisted dying if the person has a recorded advance decision in their medical records that states that in future they will not want assisted dying.
The Mental Capacity Act 2005 enables a person with capacity to make an advance decision to refuse a specified form of treatment in future, should they lack capacity. A person who has lost capacity under the Mental Capacity Act would not be eligible for assisted dying under the Bill. Where such an advance decision is in place, the effect of the amendment would be to prevent the doctor from raising the subject of assisted dying, unless the person indicates to the doctor that they wish to change their previous decision, that they wish to seek assistance under the legislation and that they have the capacity to do so.
Technically, amendment 278 appears unnecessary, because advance decisions under the Mental Capacity Act are not relevant to assisted dying. That is because advance decisions are about refusing treatment at a time when a person no longer has capacity, and assisted death would be available only to those who have capacity.
As drafted, clause 4(1) states:
“No registered medical practitioner is under any duty to raise the subject of the provision of assistance in accordance with this Act with a person”.
but clause 4(2) specifies that they may do so if, in exercising their professional judgment, they consider it appropriate. Amendment 8 would prevent a registered medical practitioner from raising with a person the subject of provision of assistance under the Bill, unless the person has indicated to that practitioner or to another registered medical practitioner that they wish to seek assistance to end their own life. The effect would be that any conversation on assisted dying will need to be patient-initiated, and not at the discretion of the medical professional within a wider conversation about end-of-life care.
The effect of amendment 124, as with amendment 8, would be to prevent a registered medical practitioner from raising with a person the subject of provision of assistance under the Bill. That would mean that the person will need to indicate to a registered medical practitioner that they wish to seek assistance to end their own life before an initial discussion can take place. The effect would be that assisted dying can be discussed only if the patient has initiated the conversation.
The Government’s assessment of amendment 319 is that, as drafted, it would not prevent the subject of an assisted death from being discussed with a person who is under 18. There is already a requirement that, to be eligible for the provision of assistance under the Bill, a person must be aged 18 or over at the time that they make their first declaration under clause 1(1)(b).
Amendment 319 would impose additional requirements on the approach that a medical practitioner must make if raising the subject of assisted dying with a person who has a learning disability or is autistic. It would require the person to be provided with accessible information and given sufficient time to consider it. It would further require that they must have a supporter and/or independent advocate present for the initial discussion. The amendment would require that a person with autism or a learning disability must have a supporter or independent advocate present for the discussion, even when they have capacity or are high-functioning. Autism is a spectrum disorder, meaning that autistic people have diverse and varying needs, so the effect of the amendment would vary among individuals.
It is already the case that all registered medical practitioners, in meeting their professional standards, are expected to communicate information clearly and effectively. That includes allowing sufficient time for the individual to consider and process the information provided. For example, the General Medical Council’s “Good medical practice” states that all GMC-registered clinicians
“must take steps to meet patients’ language and communication needs”
to support them to
“engage in meaningful dialogue and make informed decisions about their care.”
Amendment 368 would require registered medical practitioners, when deciding if and when it is appropriate to discuss assisted dying with a person with Down’s syndrome, to act in accordance with the Down Syndrome Act 2022. The Act requires the Secretary of State to issue guidance to relevant authorities on what they should be doing to meet the needs of people with Down’s syndrome. Although this work is being taken forward as a priority by the Department, no statutory guidance has yet been published under the Act.
The relevant authorities in scope of the Act are institutions such as NHS trusts. The Act does not provide for guidance to be prepared for individual doctors. The relevant authorities must have due regard to the statutory guidance, which enables them a degree of discretion in following it, but the amendment would require medical practitioners to act in accordance with the guidance. It might therefore create uncertainty as to how a doctor can comply with their obligations under the Bill.
Danny Kruger (East Wiltshire) (Con)
I hear what the Minister says—the guidance does not exist and there is concern that the amendment may therefore induce some confusion—but would the answer not be to put a commitment into the Bill that the Secretary of State will issue guidance on how the 2022 Act could be applied in the context of the Bill?
In the light of our conversation at the Committee’s last sitting, I put on the record my intention to press the amendment if the Minister cannot give a commitment now to introduce an amendment later that the Secretary of State will introduce statutory guidance to ensure that proper care is taken of people with Down’s syndrome in accordance with amendment 368.
Stephen Kinnock
The challenge is the dissonance in how the guidance under the Down Syndrome Act, which is currently very close to publication, is directed towards authorities such as trusts, but there is no coverage around individual doctors. At this stage, without seeing a clear distinction between the two or how it would work for individual doctors, the Department’s concern is that it could create confusion as to the obligations on individual medical practitioners under the 2022 Act. I am obviously open to conversations about how to clear that up, but the lacuna between the authorities and the individual doctors is the problem being flagged by the Department.
Kim Leadbeater (Spen Valley) (Lab)
I take the Minister’s comments on board. Will he agree to a conversation with me and with the right hon. Member for East Hampshire (Damian Hinds), who tabled amendment 368, to take the discussion forward?
Stephen Kinnock
I am happy to have conversations with the hon. Lady and other hon. Members, but as things stand it is not clear to the Department or to me how the proposal would work in practice.
Kit Malthouse (North West Hampshire) (Con)
I apologise for having arrived ever so slightly late, Mr Efford. In the Minister’s view, is it conceivable that he or any future Minister—or, indeed, the current or any future chief medical officer—would not consult with groups representing those with Down’s syndrome in drawing up the various guidelines on the Bill?
Stephen Kinnock
Extensive consultations have taken place with all the key groups and advocacy organisations on Down’s syndrome in the drafting of the guidance. The guidance is very close to publication; once it is published, it will form the basis of a further consultation. It is an iterative process.
Kit Malthouse
Perhaps I was not clear. I meant the guidance on this Bill. Although the Minister may not necessarily be able to say what will be in it, is it conceivable that the CMO, in drawing up guidance as a requirement under the Bill, would not consult Down’s syndrome groups? My point is that, given what has been expressed and the desire of the Committee, I cannot see that a CMO would not talk to Down’s syndrome groups in any event.
Stephen Kinnock
I thank the right hon. Gentleman for that clarification and apologise for my misunderstanding; I thought he was referring to the guidance that we are currently working on under the terms of the 2022 Act. Yes, absolutely: the Bill currently specifies a two-year commencement period, within which a whole range of operationalisation work will need to be done. All of that will need to be consulted on; we will not do it all in an ivory tower from Whitehall or Westminster.
Danny Kruger
It is welcome that a commitment has been made to meet my right hon. Friend the Member for East Hampshire, who tabled the amendment, but a commitment to consult is not the same thing as specific protections in the Bill for people with Down’s syndrome. What we really need is a commitment in the Bill that there will be statutory guidance. There will be opportunities for that later, so we may not need to press the amendment to a vote, but if we cannot have a commitment, we must press it.
Stephen Kinnock
It is absolutely the hon. Member’s prerogative to press the amendment to a vote if he so wishes. As things stand, because of the baseline, which is the GMC guidance that I have just read out, we constantly go back to the Government’s position that the current corpus of guidance, regulations, advice, training, expertise and professional judgment is, in essence, satisfactory to the Department. We believe in and rely on the professional judgment of the experts in the field. That remains our fundamental position.
The effect of amendment 320 would be that the safeguards in clause 4(4) in respect of the preliminary discussion apply only where the person seeking assistance is aged 18 or over. The amendment would not prevent a discussion with a person under 18. As the Committee will be aware, there is already a requirement that, to be eligible for the provision of assistance under the Bill, a person must be 18 or over when they make their first declaration under clause 1(1)(b).
Amendment 270 would make it a requirement for a registered medical practitioner to ensure that there are no remediable suicide risk factors before proceeding to the initial discussion about assisted dying. The amendment does not state what is to happen if the practitioner considers that there are remediable suicide risk factors. As the Committee will be aware, we rely on medical practitioners to make judgments in relation to their patients that draw on their training, experience and expertise. We would expect the judgment and skill of a medical professional to be brought to bear where there are remediable suicide risk factors.
Amendment 276 would mean that a person is unable to have a preliminary discussion or make a first declaration to be provided with assistance to end their own life until 28 days after receiving a terminal diagnosis. The amendment would add an additional pause into the process for a person who has received a terminal diagnosis in the preceding 28 days. The 28-day pause would apply regardless of the patient’s prognosis, even if they had only one month left to live, for example.
New clause 6 would ensure that an advance decision to refuse treatment under the Mental Capacity Act 2005 cannot be used to seek assisted dying. Our analysis suggests that the new clause is not necessary, because an assisted death is available only to those with capacity, whereas advance decisions provide for a person to be able to refuse treatment at a future time when they have lost capacity. If a person still has capacity, they may be eligible for an assisted death. If they do not have capacity, they will not be eligible, irrespective of whether they have made an advance decision.
That concludes my remarks on this group of amendments. As I say, the Government have taken a neutral position on the substantive policy questions relevant to how the law in this area could change. However, I hope my comments and observations are helpful to Committee members in considering the Bill.
Rebecca Paul (Reigate) (Con)
I appreciate the opportunity to speak briefly, Mr Efford. Many other speakers have already made excellent points in support of the amendments, so I will not repeat them, but I would like to put on record one pertinent point.
During these proceedings, there has been a tendency by some to speak as though assisted dying were another type of treatment or healthcare option being offered by medical practitioners, rather than a completely different and separate offering. I have grave concerns about that. The legal norm, and GMC guidance, is that patients should be offered all reasonable medical treatments. A medical treatment can be defined as something that combats disease or disorder. It is fundamentally about healing, relief of symptoms, recovery and cure. Straightaway, we have a conflict. Assisted dying ends the life of a person. It is not a treatment in the normal sense—
Rebecca Paul
We are talking about what a medical practitioner can and cannot say. During the debate, there was a lot of talk about whether it was a medical treatment or not. If so, guidance indicates how it should be treated, so whether it is a medical treatment or not is relevant and pertinent to the clause. I have an important point that I would like to put on the record; I am happy to raise it at a different point, but I honestly believe that clause 4 is the right place.
The Chair
The problem is that this is not a general debate on clause 4; it is a debate about a specific group of amendments. We may come later to a general debate on clause 4.
The Chair
If there is a stand part debate, that will be the right time to make a contribution about the general principles of clause 4.
Rebecca Paul
Okay. I will just put it on the record that whether or not something is a medical treatment is vital. It is possible to give medical treatments without consent, so we need to have that debate.
Kim Leadbeater
It is a pleasure to serve under your chairship, Mr Efford. The amendments relate to the initial discussions with medical practitioners, and it is important to highlight that clause 4(1) states:
“No registered medical practitioner is under any duty to raise the subject of the provision of assistance in accordance with this Act with a person.”
However, subsection (2) states that
“nothing in subsection (1) prevents a registered medical practitioner exercising their professional judgement”.
Doctors and healthcare professionals, like any other group of people, hold a range of views on assisted dying. We need only reflect on the oral and written evidence to see that. However, the British Medical Association has a neutral position on assisted dying, and its representatives were very clear when I met them, and in oral evidence to the Committee, that they wanted an opt-in model for doctors to provide assisted dying, as well as the right to decline to carry out activities directly related to assisted dying, for any reason. These requests have therefore been incorporated into the Bill.
The BMA was clear in its submission that it opposes amendments 8, 124 and 276, as well as amendment 342, which we will come to later. It said that adding a prohibition or limiting factors in the Bill would
“create uncertainty and legal risks for doctors, which may inhibit effective doctor/patient communication and understanding.”
It welcomed the Bill’s provision that a doctor is not under a duty to raise assisted dying, which it felt was necessary to avoid any suggestion that doctors have a legal duty to raise it. It was concerned that these amendments would remove that provision, leaving doctors in a position of legal uncertainty. It said:
“If doctors are concerned that they may be legally obliged to raise assisted dying with all potentially eligible patients, this will impact on how, when, and by whom the issue is raised…It is essential that decisions about when and how to discuss assisted dying are made on the basis of what is best for the patient—rather than to avoid legal challenge. All patients deserve to have this important and sensitive conversation with a doctor who is confident, competent and happy to have the discussion…Doctors should be able to talk to patients about all reasonable and legally available options; a provision that limits or hinders open discussion about any aspect of death and dying is likely to be detrimental to patient care. Doctors should be trusted to use their professional judgement to decide when and if a discussion about assisted dying would be appropriate, taking their cue from the patient as they do on all other issues.”
That is the BMA’s position, and I agree.
As Duncan Burton, the chief nursing officer for England, said in oral evidence to the Committee,
“it is clear that there is increasing discussion in society around death and dying, and I think that is important. It is important that we have discussions and support people with their choices at the end of life, so anything we can do to increase that is important.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 41, Q22.]
Dr Ryan Spielvogel from California told us:
“People cannot make informed decisions for themselves if they do not know what their options are. While this is top of mind for all of you and for the doctors…even if this Bill becomes law, the general population is still not going to realise that it is an option.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 105, Q143.]
He strongly advised against not allowing doctors to discuss patient choice, because in his experience that really hampers their ability to take care of patients. Dr Jessica Kaan of End of Life Washington reiterated the point:
“It is a huge burden to put on patients and their loved ones if they have to bring it up themselves. I would highly caution against any sort of language that requires that, because it is just not fair to them. They are already going through so much”.––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 106, Q143.]
In the light of our recent discussions, I draw the Committee’s attention to the current BMA guidelines regarding patient requests for assisted dying. Those guidelines will obviously need updating if the law changes, but they are comprehensive and give us a much greater understanding of the approach that doctors take when speaking to terminally ill patients, as well as what these hugely sensitive conversations look like, which is really important to know.
The BMA guidance addresses situations in which patients make an explicit request for doctors’ assistance in or information about ending their life or hastening their death. I will refer to that guidance now. The guidance advises the doctors to
“Explore the patient’s feelings, emotions and thoughts….It might be helpful to discuss their understanding of their condition or their fears and concerns…If you feel that the patient is depressed or suffering from another mental health condition, or would benefit from more support, therapy or counselling should be offered.”
Doctors are also advised to
“Use the opportunity to address those concerns: you should also investigate whether other practical arrangements could help improve the patient’s quality of life. Involve a colleague: you might like to involve a more experienced colleague—making clear to the patient that this is what you will be doing.”
The guidance also talks about involving other sources of support:
“you might like to seek support and input from other members of the healthcare team, such as a specialist palliative care team, colleagues from mental health, or the chaplaincy or voluntary services.”
Danny Kruger
The hon. Lady says that the GMC states that doctors have an obligation to raise the treatment options before them, and I think that she thinks that this is a treatment option. Surely the obligation is on doctors to raise assisted dying in all cases where it may be an option for the patient. Does the hon. Lady agree that doctors should offer assisted dying when that treatment may be appropriate for the patient?
Kim Leadbeater
I agree that, under the provisions of the Bill, the doctor will have a duty to lay out options available to the patient, if they meet the eligibility criteria—absolutely. That is the whole purpose of the Bill.
Danny Kruger
I am grateful to the hon. Lady for giving me a very clear answer. I just want to be totally clear that we understand each other. Is she saying that every doctor facing a terminally ill patient—someone who is eligible under the Bill—should make clear to them that they have the option of an assisted death?
Kim Leadbeater
Well, that is the purpose of clause 4: the doctor has to lay out the options available to the patient as long as all the criteria are met.
We can see from the guidance that currently exists that doctors take a very sensitive and patient-centred approach to end-of-life conversations. If the law were to change, that approach would continue with additional training specifically related to assisted dying, as has been discussed. It would also mean that the issues that doctors currently face around discussing assisted dying would be addressed.
As the BMA says, at the moment
“The law does not provide a clear definition of which actions might constitute assisting or encouraging suicide…What if a patient wishes to travel abroad for assisted dying? While the act of travelling abroad for assisted dying is not illegal, assisting, facilitating, or encouraging someone to do so is a criminal offence…doctors need to be aware of the possibility of legal and professional sanctions if they were to do so.”
I imagine that that must create a real sense of jeopardy for doctors. Similarly, the GMC recognises that doctors will face challenges in
“ensuring that patients do not feel abandoned”,
while ensuring that the advice or information that they provide does not encourage or assist a person to end their own life.
These are very difficult conversations for patients and doctors, but by legalising assisted dying in this country we can give clear guidance through a robust legal framework, and create the thorough, transparent process that is currently lacking. These conversations provide a safeguard while the person is still alive. As the former director of public prosecutions, Sir Max Hill, told the Committee,
“In each of the 27 cases I considered, the deceased individual was already dead, and that is when the scrutiny started. The major advantage of the Bill, if I can put it that way, is that that will be reversed, and scrutiny will be before death.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 86, Q111.]
Mark Swindells from the General Medical Council told us:
“We do get inquiries from doctors who are concerned that they are doing the right thing when it might become apparent to them that a patient wants to travel overseas to access assisted dying.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 46, Q36.]
Bringing those conversations out into the open has to be better for the patient and the practitioner.
Lewis Atkinson (Sunderland Central) (Lab)
With reference to amendment 8, and further to the intervention from the hon. Member for East Wiltshire, can my hon. Friend reflect on the provisions as set out in clause 4(1) and (2), which say that the issue relates to doctors’ professional judgment and that doctors are under no obligation to raise those issues in any situation?
Kim Leadbeater
Absolutely. This is about professional judgment, which is what the BMA is really clear about. Doctors have to be able to use their professional judgment. They are not under any obligation to raise the issue, but they are not under any obligation not to raise it. The BMA is really clear about that. I thank my hon. Friend for his intervention.
I welcome amendments 319 and 320 from my hon. Friend the Member for Bexleyheath and Crayford and I thank him once again for his positive engagement with the Bill. He raises a very valid point about the initial discussion. While the Bill is very clear that it applies only to terminally ill adults over the age of 18, in that someone would have to be over 18 to make the first declaration, it is not clear that the initial discussion could also not happen with someone under the age of 18.
We should not prohibit open conversations with terminally ill young people and their families, as they create openness, transparency and safeguards and provide much-needed support at what most of us can only imagine must be the most difficult time of anyone’s life. However, I think it should be made clear that the actual assisted dying process cannot be embarked upon unless someone is over the age of 18. I have taken advice about how best to incorporate that into the Bill from a drafting perspective. As a result, I have tabled amendment 418, which applies to clause 5, and states that regulations must provide that the first declaration contain, among other things,
“a declaration that they have had a preliminary discussion with a registered medical practitioner, that they were aged 18 or over when they had that discussion, and that they understand the information referred to in section 4(4)(a) to (c) that was provided during that discussion”.
As such, the aim of amendments 319 and 320 is achieved. I hope that that is to the satisfaction of my hon. Friend the Member for Bexleyheath and Crayford.
With regard to amendment 339, I have listened very carefully to the concerns of my hon. Friend the Member for Bexleyheath and Crayford, who tabled it, and the evidence from Mencap chief executive Dan Scorer, who suggested that for terminally ill people with learning disabilities
“that initial conversation has to be incredibly well supported and structured…the person should have accessible information in advance of that discussion so that they are fully informed about all their rights in terms of treatment options at end of life”. ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 280.]
I absolutely agree with the intention of the amendment. I am seeking advice on the legal and technical implications, as I believe there is some tightening up that would need to be done around some of the phrasing, such as the concept of “sufficient time” or what would constitute a “supporter”. I therefore cannot support the amendment as it stands, but I am very happy to look at ways to take this forward and to meet my hon. Friend to discuss the amendment, which, quite rightly, gives special consideration to people with autism and learning disabilities. I know that my hon. Friend the Member for Penistone and Stocksbridge is also considering tabling amendments that would have a similar effect; perhaps we could all meet together.
I also reassure my hon. Friend the Member for Bexleyheath and Crayford that I am considering the involvement of people with learning disabilities, and groups representing them, in the development of guidance and training on assisted dying and end-of-life conversations. As Dan Scorer said,
“people with a learning disability should be involved in the development of that guidance” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 281.]
I absolutely agree.
Amendment 368, tabled by the right hon. Member for East Hampshire, has been discussed this morning. I sought advice about it as it was new to me. I believe that no statutory guidance has yet been published under the Down Syndrome Act, so we lack detail. That Act resulted from another private Member’s Bill; I am sure we can all agree what an excellent process this is for making important changes to the law. As the Minister said, the amendment is likely to be unworkable for doctors so I cannot support it. I would, however, be very happy to discuss the thoughts of the right hon. Member for East Hampshire and look at how we can meet his objectives—possibly through an addition to new clause 8, which is about the duty to consult and the Secretary of State consulting with the Equality and Human Rights Commission. At that point, the specific needs of not just people with disabilities but those with other protected characteristics will be represented. Alternatively, we could look at the codes of practice in clause 30.
I am happy to take those discussions forward and may even be able to speak to the right hon. Member for East Hampshire at the drop-in session he is doing this week with the National Down Syndrome Policy Group, ahead of Down’s Syndrome Awareness Week.
Kit Malthouse
As the hon. Lady will know, a number of our proceedings have been misinterpreted, shall we say, on social media. For complete clarity, with regard to the initial conversation, the Bill leaves to the discretion of the doctor whether it is appropriate to raise the matter, given their knowledge of the patient. They have no obligation to raise it. If the patient themselves indicates a wish to raise the matter, then a doctor is under an obligation to lay out all the options available to that patient. We would not want to leave the outside world with the impression that, in all circumstances, the doctor is obliged to raise the option of assisted dying. It is only when they professionally think it is appropriate or if the patient raises it with them.
Kim Leadbeater
The right hon. Gentleman is absolutely right. As I have said, the BMA has been very clear that doctors should use their professional judgment. For example, if they had a patient whom they knew to be deeply religious and who had no interest whatsoever in an assisted death, it is highly unlikely that they would raise the possibility. It is up to them to use their professional judgment to accommodate the wishes of the patient. It has to be a patient-centred approach.
Sarah Green (Chesham and Amersham) (LD)
We have had a good debate on the amendments in this group. I do not intend to push amendment 278 to a vote, and I have nothing further to add to my previous remarks. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 8, in clause 4, page 2, line 16, leave out from “practitioner” to end of line 20 and insert
“shall raise the subject of the provision of assistance in accordance with this Act with a person who has not indicated to that or another registered medical practitioner that they wish to seek assistance to end their own life”.—(Daniel Francis.)
Question put, That the amendment be made.
Danny Kruger
I beg to move amendment 342, in clause 4, page 2, line 23, leave out
“may (but is not required to)”
and insert “must”.
This amendment would strengthen the requirement for a registered medical practitioner to conduct a preliminary discussion.
The Chair
With this it will be convenient to discuss the following:
Amendment 285, in clause 4, page 2, line 28, leave out paragraphs (a) to (c) and insert—
“(a) the person’s diagnosis and prognosis, in consultation with a specialist in the relevant illness, disease or medical condition,
(b) any treatment available and the likely effect of it, in consultation with a specialist in the provision of such treatment,
(c) any palliative, hospice or other care, including symptom management and psychological support, in consultation with a specialist in palliative care.”
This amendment ensures that a specialist carries out the assessment of the patient, the treatment options available and the palliative care options available, since these may not be known to a doctor coordinating an assisted death.
Amendment 343, in clause 4, page 2, line 28, at end insert
“, including any relevant probabilities and uncertainties surrounding the person’s diagnosis and prognosis.”
This amendment would make clear that the doctor conducting an initial discussion is required to discuss the probabilities and uncertainties of any estimates of how long a person may have to live.
Amendment 344, in clause 4, page 2, line 29, at end insert
“, including the risks and benefits of such treatment, potential side effects, and the impact of the treatment on the person’s quality and length of life.”
This amendment would make clear that the doctor conducting an initial discussion is required to discuss the impact of any treatment available.
Amendment 275, in clause 4, page 2, line 30, leave out “any available” and insert “all appropriate”.
Amendment 108, in clause 4, page 2, line 31, at end insert
“and offer to refer them to a registered medical practitioner who specialises in such care for the purpose of further discussion.”
This amendment would require the doctor who has an initial discussion with a person about assisted dying to offer to refer them to a specialist in palliative, hospice or other care.
Amendment 183, in clause 4, page 2, line 31, at end insert—
“(and, accordingly, such a preliminary discussion may not be conducted in isolation from an explanation of, and discussion about, the matters mentioned in paragraphs (a) to (c)).”
This amendment emphasises that the initial discussion mentioned in subsection (3) may not be conducted without also explaining and discussing the matters mentioned in subsection (4).
Amendment 425, in clause 4, page 2, line 31, at end insert—
“(4A) Where a person indicates to a registered medical practitioner their wish to seek assistance to end their own life in accordance with this Act, they must be referred to a multidisciplinary team to explore options for relevant care and support.
(4B) The Secretary of State may by regulations specify the requirements for the multidisciplinary team under subsection (4A).
(4C) The regulations must include a requirement for the multidisciplinary team to include all of—
(a) a registered medical practitioner or registered nurse,
(b) a person registered as a social worker in a register maintained by Social Work England or Social Work Wales, and
(c) a practising psychiatrist registered in one of the psychiatry specialisms.”
Amendment 53, in clause 7, page 4, line 8, at end insert—
“(ca) has relevant and available palliative care options.”
This amendment would mean that someone is only eligible for assistance in ending their own life under this Act if they have relevant and available palliative care options.
Amendment 54, in clause 7, page 4, line 17, leave out “(g)” and insert “(h)”.
This amendment is consequential on Amendment 53.
Amendment 426, in clause 7, page 4, line 26, at end insert—
“(4) The coordinating doctor may not take the steps set out in subsection (3) unless they receive confirmation from a multidisciplinary team that the person has had a meeting with that multidisciplinary team as specified in section 4.”
Amendment 286, in clause 9, page 5, line 36, leave out paragraphs (a) to (c) and insert—
“(a) the person’s diagnosis and prognosis, in consultation with a specialist in the relevant illness, disease or medical condition,
(b) any treatment available and the likely effect of it, in consultation with a specialist in the provision of such treatment,
(c) any palliative, hospice or other care, including symptom management and psychological support, in consultation with a specialist in palliative care.”
This amendment ensures that a specialist carries out the assessment of the patient, the treatment options available and the palliative care options available, since these may not be known to a doctor coordinating an assisted death.
Amendment 424, in clause 40, page 23, line 37, at end insert—
“‘preliminary discussion’ means a discussion of a kind mentioned in section 4(3);”.
This is a drafting change.
Kit Malthouse
On a point of order, Mr Efford. I seek your guidance on the votes that we have just taken on the last group of amendments. If any Member, or any external person, were to attempt to misrepresent part of the debate on those amendments, what could we do? For example, in respect of amendment 368, tabled by my right hon. Friend the Member for East Hampshire, with regard to people with Down’s syndrome, somebody could imply or state on social media that the Committee has refused to look at accommodations for those people, therefore disregarding their welfare under the Bill. As you will be aware, that would be a serious misrepresentation of the debate and the intention of the Committee. If a Member of the House or somebody external did that, what measures could we take to correct it?
The Chair
I suggest that you take the advice of the House on that, because what people say outside of the Committee is beyond my jurisdiction. The House has rules, and if those rules are breached, it is up to any hon. Member, including the Member himself, to raise that with the appropriate authorities.
Danny Kruger
On that ruling, Mr Efford, I concur that it is not your job to police social media but I respect the point made by my right hon. Friend the Member for North West Hampshire: it is important that we accurately reflect the debates held in this place. For my part, I will not be commenting externally that the House has disregarded people with Down’s syndrome. I respect and appreciate the point made by the Minister and the hon. Member for Spen Valley that there will be an effort to engage with the Down’s syndrome community in the drafting of further consultation and guidance. Nevertheless, the Committee did just choose to reject an amendment that would have required the Government to put into the Bill the protections specified by the Down’s syndrome community and my right hon. Friend the Member for East Hampshire. I will be making that point, but I undertake to do so accurately and fairly.
I turn to amendment 342 and the other amendments in this group. There is a lot to discuss, and I will get through it as fast as I can. We are talking about the “initial discussion” and the “preliminary discussion”. It might be helpful to clarify those terms, because clause 4 is confusing. The clause refers to an “initial discussion”, which is when the doctor, or maybe the patient, raises the idea—it is unclear who will do that and how. The initial discussion does not actually need to take place at all, but if it does, then, according to the Bill, a preliminary discussion “may” be held, at which the topic is discussed in more detail and there is discussion of the requirements that need to be met, and so on.
I welcome amendment 342, which was tabled some time ago by the hon. Member for Shipley (Anna Dixon). It provides that if an initial discussion is held—that is to say, if the topic is raised as an option and the patient indicates their wish for an assisted death—then a preliminary discussion must also be held. Over the weekend the hon. Member for Spen Valley tabled amendment 419. That would amend clause 6, but I mention it here because it reaches back to clause 4 by stating that the co-ordinating doctor must either hold a preliminary discussion or see evidence that one has been held at an earlier stage.
I was alarmed that the Bill initially envisaged a situation in which someone could turn up to an assisted dying provider and pay their registration and administration fees, and the only thing the co-ordinating doctor would be required to do is check their photo ID. It is extraordinary that that was viewed as acceptable in the first place, so I welcome the tabling of amendment 419. My difficulty is that it leaves clause 4 quite vague and optional about whether a preliminary discussion would take place, and then it applies a retrospective compulsion at a later stage. It allows the preliminary discussion to be not very preliminary at all, because it might take place quite some time later, at the point the co-ordinating doctor is witnessing the first declaration. It could be weeks or months after the process has started, once the patient has found a doctor willing to do the assessment and the paperwork for assisted dying. Rather than tacking the provision on to clause 6, which deals with proof of identity for the witnessing of the declaration later on, let us have it where it is needed—let us insist on it here at the outset of the process.
What should the preliminary discussion consist of? I will speak now to amendment 183 in the name of the hon. Member for Spen Valley, and amendments 343 and 344 in the name of the hon. Member for Shipley. In her explanatory statement to amendment 183, the hon. Member for Spen Valley suggests that it “emphasises” that the preliminary discussion must include a discussion of palliative care options. That is, I am afraid to say, repetitive of the sentence at the start of clause 4(4), which says that the practitioner conducting a preliminary discussion must discuss all the options listed. In the words of my right hon. Friend the Member for North West Hampshire, this is embroidery of the Bill—it is fine lacework, unrelated to the job of the clause itself. The statement in the clause that the doctor must discuss palliative care is, of course, already the law under the Montgomery judgment. There is a genuine obligation on the doctor to discuss all the options that the patient has, which will obviously include palliative care.
I welcome the amendments tabled by the hon. Member for Shipley, which would require the doctor to be clear about the uncertainties of the prognosis and the risks and benefits of the various treatment options. That is absolutely right. That is not embroidery. As a result, patients will make better-informed decisions with full awareness of what is known and, crucially, what is unknown about their prognosis. A requirement in the Bill leaves no room for doubt.
I am concerned by the suggestion that has been repeatedly made that adding obligations for doctors to do their job as guidance currently states is somehow unnecessary or harmful. Indeed, the selective approach of referencing only some elements of GMC guidance in the Bill increases legal uncertainty. Clauses 7 and 9 include only some elements of GMC guidance on the information that doctors must give to patients. There are five areas that the GMC says information should usually include, but the Bill omits
“uncertainties about the diagnosis or prognosis, including options for further investigation”
and
“the potential benefits, risks of harm, uncertainties”
and so on. The guidance explains:
“By ‘harm’ we mean any potential negative outcome, including a side effect”.
Those are quotes from the GMC guidance that are not reflected in the Bill at the moment. Some parts are, but some are not. I think the fact that some guidance has been excluded would be treated as legally significant by the courts. I would be interested to know why the hon. Member for Spen Valley takes the position that those aspects of the guidance should be excluded, and whether she feels that uncertainties and risks of harm are not relevant to the discussion that doctors should have.
We are often told that this Bill is the safest in the world. Other jurisdictions that have inspired the Bill specify in more detail what informed consent should consist of. In Oregon, the doctor must cover the potential risks, the probable result of taking the medication and the feasible alternatives. In Victoria, the doctor is required to discuss the potential risks—in fact there is a whole series of obligations on them. Interestingly, they are encouraged to inform the registered medical practitioner, so to tell the patient’s doctor what is happening, if they do not know already. South Australia specifies all the same things. In his amendment 50, my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer) is trying to mirror precisely that. That is exactly what should be in the Bill, and yet we are told that it is the safest legislation in the world.
Other amendments in this group address who should do the preliminary discussion or referral, and who else should be involved. Amendment 108 in the name of the hon. Member for East Thanet (Ms Billington), which would require the doctor to offer a referral to a palliative care specialist, is very helpful. It is significant that the Committee has already voted not to mandate referral to a palliative care practitioner at the early stage—that fork in the road that we debated earlier—so people will be facilitated down one fork in the road only. This is an opportunity to ensure that there is in fact a referral to a palliative care specialist.
Kim Leadbeater
I just want to let the hon. Gentleman and the Committee know that I met my hon. Friend the Member for East Thanet last night, and I am delighted to support her amendment 108.
Danny Kruger
I am very pleased to hear that. That is very encouraging news, because I have been concerned that the hon. Lady was resting her case on amendments to clause 12, which would not require a palliative care specialist. I am grateful to her for intervening to inform us of that.
Nevertheless, we need to go further. The amendments in the name of the hon. Member for York Central (Rachael Maskell) would require that a specialist, rather than just a GP, leads the initial assessment. The fact is that despite their enormous range of expertise, general practitioners are not qualified or confident in making prognoses of terminal illness. The written evidence from the Association for Palliative Medicine of Great Britain and Ireland cited a 2021 paper showing that over half of GPs were not consistent in how they applied their predictions to different patients. It is important that specialists in the relevant conditions should be involved in these assessments so that patients receive expert input with a lower risk of error.
It is significant that, during the Second Reading debate on 29 November, the House was unanimous in its appreciation of, and praise for, palliative care specialists. It seems strange that their expertise should not be considered essential to a terminally ill person’s consideration for an assisted death. When we look at other countries, we see that it is not an exceptional safeguard. South Australia’s Voluntary Assisted Dying Act 2021 specifies:
“Either the coordinating medical practitioner or each consulting medical practitioner must have relevant expertise and experience in the disease, illness or medical condition”—
we are not using that any more—
“expected to cause the death of the person being assessed.”
I urge the Committee to reflect on the South Australia model, which is good in this regard.
I turn to amendment 53, in the name of my hon. Friend the Member for Runnymede and Weybridge, and amendment 275, in the name of the hon. Member for Sunderland Central. The Bill currently requires doctors to discuss “available” palliative care options, but that may limit what patients are told. Amendment 275 would provide that patients should be informed of “all appropriate” palliative care alternatives, even if they are not readily available in their local area. We do not want patients choosing assisted dying simply because of unequal geographic provision of palliative care making them unaware of alternatives that could improve their quality of life.
I would go even further in support of amendment 53, which hits the nail on the head. Fundamentally, we have always said that assisted dying should be available only to people who palliative care cannot help. That is what amendment 53 entails: it states that assisted dying should be available only for people for whom the relevant palliative care is actually an option and, if they decline it, that would be their choice.
Finally, I will speak to amendments 425 and 426 in my name, which express the need for a proper multidisciplinary team at the right stage of the assisted dying process. The hon. Member for Spen Valley has emphasised the importance of multidisciplinary teams, and I welcome everything she said. It is very good to get her agreement, through the amendments that she has tabled, that two doctors working alone are not enough to protect and support every patient. I welcome that recognition.
Amendments to clause 12 attempt to fill this gap by introducing the expertise of a psychiatrist and a social worker, but they do not fulfil the role of a multidisciplinary panel. Rachel Clarke, one of the witnesses who told us to consider multidisciplinary assessments, has written subsequent to the amendments being tabled: “A ‘judge plus’ panel”—there will not actually be a judge, so perhaps we should call it a “lawyer plus” panel—
“is not an MDT…the panel’s scrutiny comes only at the end of the process, not at the beginning, when a patient first asks for the intervention of assisted dying. Yet this is a moment of peak vulnerability.”
We will get on to the question of whether a judicial panel should replace a High Court judge, but I emphasise very strongly that the introduction of this process is not the equivalent of having a proper multidisciplinary team considering the application for an assisted death at the appropriate moment.
As the Association for Palliative Medicine said last week, the Bill
“does not align with the standard multi-professional team…decision-making process used across the health service.”
It said that the panel is too distant from the patient and comes too late in the process. It said that the Bill would be stronger if the initial assessments were
“carried within a multi-professional team model”.
It is at the stage we are debating here—in the initial assessments—that the MDT needs to apply. For the record, if it has not been properly noted before, I also state that when the hon. Member for Spen Valley quoted Dr Sarah Cox on the importance of multidisciplinary teams, Dr Cox was not endorsing clause 12, but explicitly arguing for earlier introduction of the multidisciplinary process.
Kim Leadbeater
To be clear on the multidisciplinary approach, the point that I was making in that contribution was that that happens already. We are misrepresenting what goes on in current practice with terminally ill patients if we say that there is not a multidisciplinary approach, as indeed various witnesses told us. It is important to acknowledge that.
Danny Kruger
The hon. Lady is absolutely right that that is what witnesses told us, but we need to ensure that it happens in all cases; the purpose of these amendments is to ensure that good practice is universal. In the case of assisted dying, bad practice would be terrible. Of course, good doctors seek the guidance of others and do not operate in isolation, but the Bill would allow them to do so. It is important to ensure that the system lives up to the good practice that she refers to.
Committee members will be glad to hear that I am not going to rehearse the arguments about capacity and coercion, but those concerns are why it is important to have a multidisciplinary team at an early stage. The Committee has rejected all attempts to strengthen the capacity test, but it could at least allow a psychiatrist to have an earlier role in the process of checking for capacity. We heard from multiple witnesses about the importance of doing that, and that is what National Institute for Health and Care Excellence guidance states. As the hon. Lady said, it is good practice, so as Professor House said in his evidence to us, it would not be “a terribly radical thing” to do it.
On coercion, as the social worker Jess Carrington wrote to us:
“The only people who are comprehensively trained to recognise signs of abuse, in particular, coercive control, are social workers.”
According to research by Dr David Ross, doctors suspect less than 5% of cases of elder abuse. I will not rehearse the arguments around coercion, but I hope that the Committee will note that the only way—or the best way; it will not be foolproof—to ensure that coercion is spotted is by having a social worker at the very beginning of the process.
I think that is enough from me, Mr Efford—I am sure you agree.
Sean Woodcock (Banbury) (Lab)
I rise to speak to amendments 108, 343 and 344. I am delighted that the promoter of the Bill, my hon. Friend the Member for Spen Valley, has said that she accepts amendment 108, which was tabled by my hon. Friend the Member for East Thanet. It would require a doctor who was having an initial conversation with a person about assisted dying to “offer” to refer them to a palliative medical specialist. That would give the patient a chance to discuss end of life matters in depth with somebody who has the necessary expertise.
We have spent much time in previous sittings on palliative care options, and there was some understandable concern about removing autonomy from those looking for assisted dying. I hope that amendment 108 strips away that concern, because it is about offering, not mandating, more information. When we are talking about autonomy, I think that all Committee members would agree that anybody making an autonomous choice could only benefit from more information, rather than suffer as a result of it.
The Bill says that when a doctor has an initial conversation with a person about assisted dying, they should explain and discuss
“any available palliative, hospice or other care, including symptom management and psychological support.”
The amendment aims to ensure that the patient has access to the best available information to make a decision about what they do next. It would act as a safeguard to prevent people from choosing assisted dying because they did not have a chance to have a thorough and accurate discussion about the care options available to them.
As I said, several people were concerned about autonomy, and providing people with the opportunity to meet a specialist. The written evidence from Hospice UK explains that there are currently wide misunderstandings about hospice care at societal level. It says:
“Implementation of assisted dying without care given to public awareness about palliative care is likely to worsen individuals’ ability to make decisions regarding their end of life. People will need access to information about the services and support available to them.”
That reminds the Committee that terminally ill people at the end of their life often may not know the options available to them. I am sure that every Member in the room wants to avoid that situation, and the option of a discussion with a specialist aims to ease some of that fear and provide accurate information.
In order to make palliative and hospice care a genuine choice, it is important that patients with concerns are able to speak to someone who can answer all their questions and offer accurate information. Marie Curie’s written evidence says:
“There must be clear recognition within the Terminally Ill Adults (End of Life) Bill that genuine choice at the end of life cannot exist unless dying people are able to choose to receive high quality palliative and end of life care”.
Unfortunately, we know that the state of palliative care in this country is not yet of evenly accessible quality. The amendment would not solve that problem—there is quite a lot of work to do in that regard—but it would at least improve the Bill. It would give every patient the option of a discussion about palliative medicine and would make some ground on access. We all want to ensure that those with terminal illnesses are given good support and confidence in their decision at the end of their lives. Amendment 108 would do that, and would give people the opportunity of a real, informed choice, which is why I am delighted that the Bill’s promoter, my hon. Friend the Member for Spen Valley, has agreed to it.
My hon. Friend the Member for Shipley, who tabled amendments 343 and 344, has a distinguished record in policymaking in health and social care. She served as chief analyst and director of quality and strategy at the Department of Health. Both amendments are very thoughtful, and we would do well to adopt them. It would be helpful to explain what they would do before I set out why I think that hon. Members should vote for them. Amendment 343 would change clause 4(4), on page 2, which reads:
“If a registered medical practitioner conducts such a preliminary discussion with a person, the practitioner must explain to and discuss with that person—
(a) the person’s diagnosis and prognosis”.
If the amendment were made, subsection (4)(a), on line 28, would go on to read
“, including any relevant probabilities and uncertainties surrounding the person’s diagnosis and prognosis.”
Amendment 344 would change paragraph (b) on the next line, which says that the doctor must discuss with the patient
“any treatment available and the likely effect of it”.
If the amendment were made, paragraph (b) would go on to read
“, including the risks and benefits of such treatment, potential side effects, and the impact of the treatment on the person’s quality and length of life.”
Like amendment 108, amendments 343 and 344 are both intended to improve the quality of information that patients receive when they have their initial discussion about assisted dying. The first amendment addresses what many of the expert witnesses have identified as a key problem with the Bill. Clause 2 requires a doctor to have prognosed that
“the person’s death…can reasonably be expected within 6 months.”
I will not go over the various arguments that we have already had in Committee about that, but many of the very senior doctors who gave evidence to the Committee have said that it is extremely hard for medical professionals to give a prognosis with such assurance.
The Marie Curie palliative care research department at University College London also submitted written evidence, numbered TIAB 39. Those experts said:
“The Bill’s requirement for a prognosis of death within 6 months could lead to significant errors, where individuals either receive assisted dying prematurely or are denied it when desired. The variability in prognostic accuracy, especially for non-cancer illnesses, may exacerbate inequities in patient care.”
They went on to say:
“We also question how the term “reasonably” will be interpreted by doctors, and this is likely to vary between doctors, but also by the same doctor with different patients”.
The Marie Curie palliative care research department also said that predicting someone’s death “too soon” can result in early palliative care, and that such early care is
“not a harm in the same sense as might be implied in the context of assisted dying.”
Dr Simon Opher (Stroud) (Lab)
I will briefly go through my impressions of the amendments. A lot of amendments in this group call to mind one of the difficulties that we are having in Committee, which is about the role of professional integrity against what we should be putting down in law. One problem is that, if we state something in law and a professional does not do it, then they are acting in an illegal way—and that introduces a different concept into a medical consultation. We must be very careful about introducing to a medical consultation a load of requirements in law, therefore reducing the freedom of that consultation whereby the doctor and patient can decide on what is best for the patient.
Amendment 342 is in the name of my hon. Friend the Member for Shipley. I reiterate that all the amendments have been tabled in good faith, and I absolutely respect them. The amendment would mean that the initial doctor—who is likely to be a GP—to whom the person comes and wants to speak to about assisted dying “must” conduct a preliminary discussion, rather than
“may (but is not required to)”.
The problem there is that some doctors will be conscientious objectors to assisted dying and we have to protect their integrity. We must not force them to do something that is against their will.
I note that amendment 341, which we will come to later, is about the obligation to give information to the patient if they ask for assisted dying. That is an appropriate amendment, but forcing a doctor who does not agree with assisted dying to discuss it is not fair on the medical practitioner. That is not what the Bill is about. In many other places, there is freedom for the medical doctor to avoid getting involved in discussions if they do not wish to. That is an incredibly important part of, and concept in, this Bill. Without that, I think the medical profession would not accept the Bill. That is very important.
Amendment 285 is about needing to consult a specialist in the relevant illness. I think we need to understand the process of what will happen under the Bill. Let us take an example of a patient under an oncologist—a cancer specialist. The oncologist will almost certainly say at some point during the consultation with the patient, “I think that there is no further treatment that is going to prolong your life, and you are likely to have six months or less to live.” That will be done by a specialist. I do not know general practitioners who would confidently predict a prognosis of six months or less; it would come from a specialist. Indeed, cancer care in this country, until the palliative phase, is generally run by specialists and hospitals. GPs are not generally involved, apart from to support the patient. However, if the oncologist feels that the patient has less than six months to live, they would probably come to see the doctor under this legislation, and the initial discussion will then take place. They will already have a steer as to the likely prognosis.
Naz Shah (Bradford West) (Lab)
I am trying to understand. My hon. Friend is saying that the oncologist is a specialist, but that they might not be the first doctor to have the first discussion; he said that they might not want to be a part of this process. I would like to understand that a bit more.
Dr Opher
As far as I see, under the Bill there is an initial discussion when a patient who is requesting assisted dying goes to see a medical practitioner. It does not specify what type of practitioner, which is good because it means they can ask either the oncologist or the general practitioner. That initial discussion is with a doctor, and then the doctor will refer for the first declaration, or they may do the first declaration themselves. That is how the Bill is set out, but the general practitioner will have had specialist opinions on the patient. They would not just say, “Well, maybe you’ve got less than six months to live—I don’t really know, but let’s have a guess.” This will be based on informed information from a specialist.
Danny Kruger
I do not want to labour the point, but does the hon. Member not acknowledge the Bill does not require that at the moment? He is saying that it will happen. Why will it happen—just because the doctors do their job well? Does he recognise there is no obligation to have this wide consultation with other specialists under the Bill? The doctor could do just as he has described and take a decision on their own.
Dr Opher
Again, this is a really interesting part of the Bill. If a doctor is routinely giving prognoses of six months where that is not appropriate, they will come up against the General Medical Council for being poor doctors, and the regulation around poor doctors is within the medical profession. If it is proven that someone has given a diagnosis that they cannot back up in any way, they would then be subject to their own professional standards. That is one of the things here: we cannot go through this Bill and specify the medical requirements at every stage, because that comes under a different format, which is called the General Medical Council. If someone has given a prognosis of six months or less, and if that is clearly inaccurate and would be contested by other doctors, they would be brought before the General Medical Council.
Lewis Atkinson
Does my hon. Friend agree that the provision of a further independent doctor assessment—both one and two—in addition to the doctor conducting the initial discussion, would provide a further safeguard for a diagnosis, if terminality could not be supported by other professionals?
Dr Opher
I absolutely agree. We are imagining that the doctors will all be independent and will not know anything about what other doctors have said, but there will be communication and access to medical records, and they will also tell the original doctor what their opinion is, and so on.
If we accept these amendments, we risk over-embroidering the Bill, which will make it almost impossible for doctors to say anything in a consultation. We must leave that free, because that is a central tenet of medical care, and if we put laws around it, there will be legal process over the medical consultation, and doctors will be frozen with fear about breaking the law. They are regulated by the GMC, and we are all terrified of referrals to the General Medical Council for that very reason: because we are trying to operate at the best standard that we can. I truly understand the amendments, but I do not think they will make the Bill any safer, and that is what we are all here for.
Jake Richards (Rother Valley) (Lab)
I am very sympathetic to the amendment and have thought long and hard about it. Can my hon. Friend explain to me, from his experience, but also from looking at the Bill and speaking to others, the effect of clause 4(4)(b)? As a non-clinician layperson, it appears to me that if a medical practitioner is discussing the likely effect of any treatment, then by its very nature that would lead to a discussion about prognosis, and the uncertainty and certainty around that.
Dr Opher
What my hon. Friend points out is absolutely true. The Bill’s drafting is simple but very effective. For prognosis, for example, it says that it is
“reasonably…expected within 6 months.”
As we have discussed many times in this Committee, prognosis is not exact; it is an estimate. It suggests that the patient has a terminal illness—that is to say, the illness will lead to their death. All we are arguing about is exactly when that will happen. It is reasonable to say, as doctors already do, “It is likely that you have six months to live.” That is not exact—as doctors, we cannot predict the future, even if people think we can. I totally accept that. However, we can make estimates as to what is likely to happen.
As my hon. Friend just mentioned, there are lots of really good news stories of people living longer than their prognosis. However, for the Bill to be effective, and to give relief to people who genuinely need it, we have to have a prognosis, based on medical evidence, of six months.
Dr Opher
Again, I bring my hon. Friend back to the fact that this is a Bill in law, and what we have to guide us as doctors is the General Medical Council, which sets standards for doctors. That is how we do it. If we are hemmed in by legal matters, we can break the law without being aware of it, if we are not careful. If too many legal parameters are set around medical consultations, the patient will get less good care because the doctor will not be free to offer it. I can see that my hon. Friend does not agree with that, but it is the case.
Danny Kruger
The hon. Gentleman is praying in aid the General Medical Council as if it is some sort of effective backstop. He says that the guidance does not need to be in the Bill because it is there hovering over doctors anyway, but the Bill makes explicit reference to GMC guidance—some of it is in there. If he objects to our suggestion to include the full GMC guidance in the communication that should be had, why does he support the presence of some of the guidance that doctors should give? The Bill does not include what the GMC requires: uncertainties about diagnosis or prognosis. Why not include the full GMC guidance in the Bill, seeing as we are including some of it already?
Dr Opher
Sorry, Mr Efford. I do not deny that the hon. Member makes a good point, but if we embroider this too much, the Bill will not be safe. That has been the case throughout. Any good medical care is based on giving treatment, availability and the likely effects of that, and on giving prognosis and the chance of the prognosis being longer or shorter. That is all based in good clinical care.
On amendment 343, the uncertainties of estimates of how long a person has to live are covered in clause 2(1)(b):
“the person’s death in consequence of that illness, disease or medical condition can reasonably be expected within 6 months.”
“Reasonably” is part of the Bill. It suggests that one cannot say that the estimate is exact. The Bill does not say that it is exact; it says that it is a reasonable estimate of that person’s life. I think that takes care of that amendment.
In amendment 344,
“the risks and benefits of such treatment, potential side effects, and the impact of the treatment”
are covered by
“any treatment available and the likely effect of it”
in clause 4(4)(b). My general point is that none of the amendments are actually wrong; they are just unnecessary. I would like to leave it at that.
Lewis Atkinson
I will be brief, as I am conscious that the Committee needs to make progress. I will speak briefly to amendment 275 in my name, which, as others have said, amends the current reference of “any available” to “all appropriate”. Listen—people at the end of their life deserve the best. They deserve to know about and have the option to access all appropriate care. In my experience of the NHS, that is exactly what clinical teams ensure patients get. But we need to guard against any suggestion that the information given should be somehow filtered around availability, which I know is not the intention of my hon. Friend the Member for Spen Valley.
In my experience, views on availability are often incorrect anyway, so ensuring that “all appropriate” options are offered in information is the best thing to do. If nothing else, it creates a level of societal pressure to ensure that all appropriate care is available, which I hope we can all support.
Lewis Atkinson
No, I am going to make some progress because I am conscious of the time, and we want to get through these provisions.
I want to speak in favour of amendments 108 and 183. Those two amendments, taken together with amendment 275, create additional safeguards and assurances on the points made by colleagues on Second Reading that this is not cannot be raised in isolation—as my hon. Friend the Member for Spen Valley has made clear should not be the case—and that referral should always be offered to specialists in palliative and wider care.
As others have said, those patients will almost undoubtedly be in touch with a variety of different multidisciplinary healthcare teams. The suggestion that there must be a further referral to another multidisciplinary team under the Bill, regardless of which teams an individual is seeing, is therefore not appropriate. I also refer Members to amendment 6 to clause 9, which states that a referral to a psychiatrist “must” be made. My hon. Friend the Member for Spen Valley has indicated that she is in favour of that amendment. That reinforces the fact that there will be a multidisciplinary approach, including psychiatric input, where there is any doubt before the third-tier stage of the panel.
For those reasons, I do not feel the other amendments—285, 343 and so on—are necessary. By accepting amendments 275, 108 and 183, we will be able to strengthen the Bill in the way that was set out to the House, and as we heard in oral and written evidence.
Sojan Joseph (Ashford) (Lab)
I rise in support of the amendments, especially amendments 342 and 425. We have discussed various aspects of the Bill, especially capacity, coercion and medical practices, under many previous amendments. As somebody who worked as a mental health nurse for many years, and who worked as part of a multidisciplinary team, I think that amendments 342 and 425 are some of the most important.
Amendment 342 talks about the preliminary conversation with the medical practitioner with whom the patient makes contact. Do we not think that the doctor who knows most about that patient is the best person to have that preliminary discussion? They will have the most information about them. When the patient, who has gone through so much difficulty, goes to their doctor or to a GP who knows them well and says, “I would like to choose the assisted dying pathway,” would that doctor then say, “I do not want to discuss this. Somebody else will.”?
Kim Leadbeater
Is my hon. Friend not concerned about the concept of conscientious objection? The BMA strongly opposes amendment 342, because it does not think doctors should be obligated to have that initial conversation if they do not want to.
Sojan Joseph
There are other people who support this concept, and they are the people who will be having the conversation—we have both sides of the argument. I believe that the best person to have that preliminary discussion would be the doctor who knows about that patient the most—about their circumstances, prognosis, family situation and pain. We talk about compassionate care, but where is the compassion in here? I am not saying that another doctor would deny that—but I am talking about compassion. Someone going through the most difficult time in their life would have the confidence to talk to the person who knows the most about them, which is why I fully support that the initial discussion should happen with them. I am not saying that they should say yes or no, but they should be talking about the care provisions and options available to the patient. Amendment 342 is one of the most important amendments we will debate.
I will move on to amendment 425. When I tabled amendment 1, my thinking was that a psychiatrist should be involved in these discussions, but I think amendment 425 will safeguard most of the concerns we have discussed in previous sittings. Amendment 425 talks about a “multidisciplinary team” and having a psychiatrist involved as well. Written evidence was sent to us on 29 January by the Royal College of General Practitioners, which recommended that a separate pathway that
“covered every stage of the process would ensure healthcare professionals of multiple disciplines…who wanted to do so could still opt in to provide assisted dying, but this would be arranged through a different pathway.”
The hon. Member for Sunderland Central spoke earlier about how patients may be going through many multidisciplinary teams already, but it could be that none of those multidisciplinary teams have talked with them about assisted dying. They could have been pharmacists or nurses talking about the patient’s care—not assisted dying. We are talking about setting up a multidisciplinary team with a mental health nurse, doctor and social worker who can look in detail at evidence of the patient’s capacity, whether they are choosing it because they feel they are a burden, and whether there is any coercion. I think that is a safeguard for most of the concerns we have discussed in previous sessions. I would love to see a psychiatrist involved, because psychiatrists deal with some of the most challenging patients, including those with suicidal thoughts, on a day-to-day basis. They are the most experienced people to carry out a capacity assessment and, if they are a part of the multidisciplinary team, it will safeguard the Bill.
I strongly support amendment 425 and I urge Members to consider it. It will reassure many people who are concerned about some of the discussions. I know it also talks about giving power to the Secretary of State to formalise who should be part of the multidisciplinary team, which would be a discussion for later. I thank the Committee for giving me the opportunity to speak in support of the amendment.
Naz Shah
I rise to speak to amendments 285 and 286, tabled by my hon. Friend the Member for York Central. On amendment 285, we have to understand that, in medicine, clinicians only retain the areas of expertise in which they have clear confidence. I am grateful to my hon. Friend the Member for Stroud, who made very powerful points that, if anything, actually support this amendment. This is why we have developed a health system with so many specialities. Although generalists have incredible knowledge, they cannot confess to the depth of understanding that someone who dedicates their career to a speciality has. Therefore, the amendment seeks to draw on such knowledge rather than assume that a GP, for example, specialises in all fields of medicine.
Clause 4(4) would require a generalist to work alongside a specialist to secure the understanding of a patient’s diagnosis and prognosis. Once again, I recognise that my hon. Friend the Member for Stroud suggested that that already happens and does not need to be tied up in law. However, I feel the amendment gives us more protections if we are to make the Bill safe. It would then enable specialist clinical advice to be provided in the conversation about treatment options.
Danny Kruger
I am afraid the situation is even worse, because the fact is that under the Bill they will not be liable for mistakes made in pursuit of the scheme set out in the Bill. They will be exempt. They are indemnified against civil liabilities for malpractice in the course of their job. It is only guidance, and GMC guidance specifies that breaking the guidance is not itself necessarily considered a serious matter. The provisions are not strong enough at all.
Naz Shah
The hon. Member makes a valid point. That brings us to a very important question: do we wait for something to have happened? In this instance, people will have died.
If we were considering kidneys, for example, and the issue of consent, it would require somebody independent. It needs a specialist. We come back to the point about specialisms: whether they relate to diagnosis, coercion, the care pathway, palliative care or the drugs that bring a person’s life to an end, which we will discuss later, these are specialisms. I know that later my hon. Friend the Member for Spen Valley will speak to her amendment about the panel, which is intended to require expertise. That is what amendment 285 speaks to, and I hope hon. Members will support it.
Amendment 286 would set out the requirements for the co-ordinating doctor and ensure that the standards are upheld throughout the process of assessment, so that the patient and clinician have the highest levels of advice available. Even though the co-ordinating doctor might already have sought the advice of specialists as part of their assessment, the purpose of having an independent doctor is to assess the patient without preconceptions influenced by the co-ordinating doctor’s decision-making process. It is therefore important for the clinician to have access to the same level of advice to inform their clinical decision making.
In medical practice, should a second opinion be sought, the person providing that second opinion might consult a range of sources to establish an opinion. This measure would therefore be in line with normal medical practice. I hope that hon. Members will support the amendments.
Dr Tidball
With respect, I stood earlier and your colleague acknowledged it.
Dr Tidball
I rise to speak in support of the hon. Member for Spen Valley. I thank her for driving amendment 183 forward and for taking on board my input and that of others on strengthening the language in the clause to include the amendment. I will set out why I support clause 4 overall, as augmented by the language in the hon. Lady’s amendment 183, along with amendment 275 from my hon. Friend the Member for Sunderland Central, and amendment 108.
To ensure that there is a compassionate choice at the end of life, it is right that the Bill is tightly drawn around the final stage of terminal illness for adults and includes the strongest safeguards. In my speech on Second Reading, I said:
“The choice of assisted dying as one option for adults when facing six months’ terminal illness must be set alongside the choice of receiving the best possible palliative and end of life care, or it is no choice at all.
Having analysed the Bill closely, therefore, there are changes I would want to see in Committee to strengthen those options and ensure the way that choice is presented by medical practitioners is always in the round.”—[Official Report, 29 November 2024; Vol. 757, c. 1052.]
I am satisfied that the amendments from my hon. Friends the Members for Spen Valley and for Sunderland Central will strengthen the Bill in that way, ensuring that choice for those seeking assistance is more efficient and effectively presented in the round by medical practitioners.
Amendment 183, in the name of my hon. Friend the Member for Spen Valley, emphasises that the initial discussion under clause 4(3) may not be conducted without also explaining and discussing the matters mentioned in subsection (4). It would ensure that the registered medical practitioner must explain to and discuss with the person their diagnosis and prognosis, any treatment available and its likely effect. Amendment 275, in the name of my hon. Friend the Member for Sunderland Central, would ensure that they also discussed “all available” palliative, hospice or other care, including symptom management and psychological support. I support amendments 183 and 275 because, having looked closely at barriers to access to healthcare for disabled people and others over the past 15 years, I believe in the need for transparency, accessibility and equality of choice of healthcare as a fundamental key principle.
The BMA’s written evidence, at paragraph 5.6, sets out its support for clause 4. In particular, it expounds on the principle that there should be no prohibition on a doctor initiating discussion with a patient about assisted dying. Doctors should be trusted to use their professional judgment to decide when and if discussion about assisted dying would be appropriate, taking their cue from the patient as they do on other issues. The BMA goes further, stating:
“Some patients find it difficult to bring up sensitive subjects in their consultations,”
Being able to have these discussions is necessary and helpful.
Dr Tidball
I will make progress.
Clause 4 creates no duty to raise assisted dying, a point supported by the BMA. Keeping things secret is not helpful for the patient making such difficult decisions about how best to live their death with dignity and respect.
Dr Tidball
I will make progress.
In reply to a question from me about those who are seeking assistance, Dr Jane Neerkin, a consultant physician in palliative medicine, said:
“For them, it is about trying to regain some of that control and autonomy and being able to voice for themselves what they want. That is what I tend to see that people want back at the end of life.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 201, Q263.]
Importantly, amendments 183 and 275 would strengthen clause 4 to ensure that we avoid a situation that gives those with the most social capital more choice, while leaving those who might otherwise be unaware of all other options available to them without that choice. If the Bill is passed by Parliament without them, it will exacerbate health inequalities rather than abating them.
Together, the amendments expound and elaborate on the need for discussion of all appropriate palliative and other end-of-life options available to someone with a six-month terminal illness. I commend them to the Committee.
Stephen Kinnock
The amendments would make changes to the discussion between the medical practitioner and the patient. They are largely focused on clause 4, on the initial discussions, but several are thematically linked or related to later clauses.
Amendment 342 would impose a requirement on the registered medical practitioner to conduct a preliminary discussion with a person where that person has indicated that they wish to seek assistance to end their own life. As it stands, the Bill allows registered medical practitioners to opt out should they not wish to hold that conversation with someone, although they have an obligation under clause 4(5) to refer an individual to another medical practitioner for that discussion.
The amendment would remove that discretion and thus remove the opportunity for a medical professional to opt out of having the preliminary discussion. That may conflict with the principle set out in clause 23 that no registered medical practitioner or other healthcare professional is under any duty to participate in the provision of assistance. Our analysis suggests that in removing discretion as to participation, the amendment could interfere with an individual’s rights under article 9 of the European convention on human rights, on the freedom of thought, belief and religion, and article 14, on the prohibition of discrimination.
Amendment 285 would require the registered medical practitioner who conducts a preliminary discussion with a person on the subject of an assisted death to discuss with them, in consultation with a specialist, the person’s diagnosis and prognosis, any treatments available and their likely effects, and any available palliative, hospice or other care. The amendment would therefore require additional registered medical practitioners or other specialists to be consulted as part of the preliminary discussion under clause 4(4). The additional time required for consultation with specialists would be likely to lengthen the period over which a preliminary discussion can take place.
I also note that clause 9, “Doctors’ assessments: further provision”, will already require the assessing doctor to make such other inquiries as they consider appropriate in relation to the first and second assessments.
Naz Shah
The Minister’s point speaks to what my hon. Friend the Member for Stroud and I have spoken about in relation to the amendment, so I wonder which bit he supports. The Minister says that there will be extra time, but my hon. Friend pointed out that doctors do this routinely, so the objection is only that it will be on the face of the Bill. I just want to understand the Minister’s position on that.
Stephen Kinnock
If I understood the point that my hon. Friend the Member for Stroud was making, I think it was that the basic provisions in place enable doctors to carry out their work based on their experience and expertise, whereas the amendment would require additional registered medical practitioners or other specialists, so that would be in addition to what my hon. Friend was talking about.
I turn to amendment 343. As the Bill stands, a registered medical practitioner undertaking a preliminary discussion with a patient is required to discuss the person’s diagnosis and prognosis. The amendment would require a registered medical practitioner also to discuss any relevant probabilities and uncertainties of a person’s diagnosis and prognosis. It would put an additional legal requirement on what needs to be discussed during the preliminary discussion with the patient. In considering whether the amendment is required, the Committee may wish to note that all doctors acting in accordance with the General Medical Council’s “Good medical practice” are expected to discuss uncertainties about diagnosis and prognosis, and potential risks and uncertainties about treatment.
Under clause 4, the registered medical practitioner conducting the preliminary discussion must discuss any treatment available to the patient and the likely effect. Amendment 344 would require the registered medical practitioner conducting the initial discussion to discuss, as part of the conversation on the treatments available, the risks and benefits of such treatment, potential side effects and the impact of the treatment on the person’s quality and length of life. As with amendment 343, the Committee may wish to note, when considering whether the amendment is required, that all doctors acting in accordance with “Good medical practice” are expected to discuss the risks, benefits, uncertainties and the likelihood of success of treatment with a patient.
Amendment 275 would change the wording of clause 4(4)(c) to “all appropriate palliative hospice and other care”. That would require a registered medical practitioner who conducts a preliminary discussion with a person on the provision of an assisted death to explain and discuss palliative and hospice care on the basis of appropriateness for the individual, not on the basis of the care that is available. Clause 4(4) sets out that a registered medical practitioner who conducts the preliminary discussion on assisted dying must, as part of that discussion, explain and discuss the person’s diagnosis and prognosis, any treatment available and the likely effect—
Terminally Ill Adults (End of Life) Bill (Seventeenth sitting)
Tuesday 4th March 2025
(1 day, 19 hours ago)
Public Bill CommitteesTerminally Ill Adults (End of Life) Bill 2024-26 View all Terminally Ill Adults (End of Life) Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 4 March 2025 - (4 Mar 2025)
The Committee divided: - Ayes: 7 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 16 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 12 - Question accordingly negatived.
Danny Kruger (East Wiltshire) (Con)
On a point of order, Mr Dowd. My understanding is that we are planning to sit a bit later today, which is fine by me. I wanted clarity from you that the Committee has no hard deadline—that although the intention is that Report stage will take place on 25 April, if the Committee wished to go further, it could. I was a little concerned by some of the remarks made in this morning’s sitting about people being conscious of time; there is a sense of being asked to speed up as we go. Am I right in saying that the Committee can take as long as it needs to, and that in fact it should, to debate this very important matter?
The Chair
The short answer is yes. I think Members will inevitably deal with this in as sensitive and conciliatory fashion as possible, notwithstanding that point.
Clause 4
Initial discussions with registered medical practitioners
Amendment proposed (this day): 342, in clause 4, page 2, line 23, leave out
“may (but is not required to)”
and insert “must”.—(Danny Kruger.)
This amendment would strengthen the requirement for a registered medical practitioner to conduct a preliminary discussion.
Question again proposed, That the amendment be made.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 285, in clause 4, page 2, line 28, leave out paragraphs (a) to (c) and insert—
“(a) the person’s diagnosis and prognosis, in consultation with a specialist in the relevant illness, disease or medical condition,
(b) any treatment available and the likely effect of it, in consultation with a specialist in the provision of such treatment,
(c) any palliative, hospice or other care, including symptom management and psychological support, in consultation with a specialist in palliative care.”
This amendment ensures that a specialist carries out the assessment of the patient, the treatment options available and the palliative care options available, since these may not be known to a doctor coordinating an assisted death.
Amendment 343, in clause 4, page 2, line 28, at end insert
“, including any relevant probabilities and uncertainties surrounding the person’s diagnosis and prognosis.”
This amendment would make clear that the doctor conducting an initial discussion is required to discuss the probabilities and uncertainties of any estimates of how long a person may have to live.
Amendment 344, in clause 4, page 2, line 29, at end insert
“, including the risks and benefits of such treatment, potential side effects, and the impact of the treatment on the person’s quality and length of life.”
This amendment would make clear that the doctor conducting an initial discussion is required to discuss the impact of any treatment available.
Amendment 275, in clause 4, page 2, line 30, leave out “any available” and insert “all appropriate”.
Amendment 108, in clause 4, page 2, line 31, at end insert
“and offer to refer them to a registered medical practitioner who specialises in such care for the purpose of further discussion.”
This amendment would require the doctor who has an initial discussion with a person about assisted dying to offer to refer them to a specialist in palliative, hospice or other care.
Amendment 183, in clause 4, page 2, line 31, at end insert—
“(and, accordingly, such a preliminary discussion may not be conducted in isolation from an explanation of, and discussion about, the matters mentioned in paragraphs (a) to (c)).”
This amendment emphasises that the initial discussion mentioned in subsection (3) may not be conducted without also explaining and discussing the matters mentioned in subsection (4).
Amendment 425, in clause 4, page 2, line 31, at end insert—
“(4A) Where a person indicates to a registered medical practitioner their wish to seek assistance to end their own life in accordance with this Act, they must be referred to a multidisciplinary team to explore options for relevant care and support.
(4B) The Secretary of State may by regulations specify the requirements for the multidisciplinary team under subsection (4A).
(4C) The regulations must include a requirement for the multidisciplinary team to include all of—
(a) a registered medical practitioner or registered nurse,
(b) a person registered as a social worker in a register maintained by Social Work England or Social Work Wales, and
(c) a practising psychiatrist registered in one of the psychiatry specialisms.”
Amendment 53, in clause 7, page 4, line 8, at end insert—
“(ca) has relevant and available palliative care options.”
This amendment would mean that someone is only eligible for assistance in ending their own life under this Act if they have relevant and available palliative care options.
Amendment 54, in clause 7, page 4, line 17, leave out “(g)” and insert “(h)”.
This amendment is consequential on Amendment 53.
Amendment 426, in clause 7, page 4, line 26, at end insert—
“(4) The coordinating doctor may not take the steps set out in subsection (3) unless they receive confirmation from a multidisciplinary team that the person has had a meeting with that multidisciplinary team as specified in section 4.”
Amendment 286, in clause 9, page 5, line 36, leave out paragraphs (a) to (c) and insert—
“(a) the person’s diagnosis and prognosis, in consultation with a specialist in the relevant illness, disease or medical condition,
(b) any treatment available and the likely effect of it, in consultation with a specialist in the provision of such treatment,
(c) any palliative, hospice or other care, including symptom management and psychological support, in consultation with a specialist in palliative care.”
This amendment ensures that a specialist carries out the assessment of the patient, the treatment options available and the palliative care options available, since these may not be known to a doctor coordinating an assisted death.
Amendment 424, in clause 40, page 23, line 37, at end insert—
“‘preliminary discussion’ means a discussion of a kind mentioned in section 4(3);”.
This is a drafting change.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Mr Dowd.
When we broke at 11.25 am, I was talking about amendment 108. Clause 4(4) sets out that a registered medical practitioner who conducts the preliminary discussion on assisted dying must, as part of that discussion, explain and discuss
“the person’s diagnosis and prognosis…any treatment available and the likely effect of it…any available palliative, hospice or other care, including symptom management and psychological support.”
Amendment 108 would supplement that with a requirement for the registered medical practitioner also to offer to refer the person to a specialist in palliative, hospice or other such care for the purpose of further discussion.
The amendment would add an additional level of specificity to the preliminary discussion on palliative, hospice or other care, but would not in itself place a duty on the registered medical practitioner to make such a referral, or on the person to accept it. In considering whether the amendment is required, the Committee may wish to note that the General Medical Council’s good medical practice already requires doctors, when providing clinical care, to refer a patient to another suitably qualified practitioner when this serves their needs.
As the Committee is aware, the Government have worked with my hon. Friend the Member for Spen Valley on several amendments to ensure that the Bill is legally and operationally workable and reflects her policy objectives. Amendments 183 and 424 are two such amendments.
The purpose of amendment 183 is to emphasise, not change, the existing provisions in the Bill that provide that the preliminary discussion held with the person by a registered medical practitioner must not discuss assisted dying in isolation. Rather, the discussion must reference the matters contained in clause 4(4), including
(a) the person’s diagnosis and prognosis…any treatment available and the likely effect of it…any available palliative, hospice or other care, including symptom management and psychological support.”
Amendment 424 seeks to clarify the meaning of “preliminary discussion” in clause 40, to align that with the description of the discussions in subsections (3) and (4) of clause 4. It is a drafting change. As per subsections (3) and (4), a preliminary discussion takes place between a person seeking the provision of assistance in accordance with the Bill and a medical practitioner, about the requirements that need to be met for such assistance to be provided. The preliminary discussion must include
“the person’s diagnosis and prognosis…any treatment available and the likely effect of it…any available palliative, hospice or other care, including symptom management and psychological support.”
Amendment 425 would introduce a requirement that a person seeking assistance under the Bill is referred to a multidisciplinary team to consider support and care for the person. The Secretary of State may provide regulations to determine what kind of professionals should make up such a team, but the amendment would require that at a minimum each team should include a medical practitioner or nurse, a social worker and a psychiatrist. The obligation to refer to the multidisciplinary team would apply each and every time
“a person indicates to a registered medical practitioner their wish to seek assistance to end their own life in accordance with this Act”,
so there could be multiple referrals. Finally, I note that the amendment might have wider resource implications, including for social workers.
Together, amendments 53 and 54 propose changes to clause 7—rather than clause 4, which we have been considering so far today—the effect of which would be that in carrying out the first doctor’s assessment, the co-ordinating doctor must, in addition to the other requirements, be satisfied that the person has relevant and available palliative care options. As such, the amendments would mean that people are eligible for assistance to voluntarily end their own lives only when they have relevant and available palliative care options. The amendments would create an additional criterion, which may reduce the number of people able to receive an assisted death, linked to the availability of palliative care services to any given individual.
Amendment 426 would prevent the co-ordinating doctor from finalising the first assessment process until they had received confirmation from a multidisciplinary team—as set out in amendment 425—that the person seeking assistance to end their own life had met with the multidisciplinary team. The Committee may wish to note that under the amendment there would be no requirement on the multidisciplinary team to provide that confirmation in a given timeframe. That might lead to delays in the co-ordinating doctor being able to make their statement and onward referral.
Amendment 286 would remove the requirements in paragraphs (a) to (c) of clause 9(2) and insert three new requirements. The three new conditions require the assessing doctor, for both the first and second assessment, to consult specialists in relation to the person’s diagnosis and prognosis, any treatments available and the likely effect of those treatments, and any palliative, hospice or other care, including symptom management and psychological support.
The Committee may wish to note that, as drafted, amendment 286 might have some unintended consequences. That is because by replacing clause 9(2)(a), (b) and (c), it would remove the words
“explain to and discuss with the person being assessed”
at clause 9(2)(b). Consequently, the amendment would remove the requirement for the assessing doctor to have a discussion with the person about the factors currently set out in clause 9(2)(b). The assessing doctors would also not be required to examine the person and their medical records, and to make other inquiries as they consider appropriate.
The amendment could also lead to a significant loss of essential discussion between the assessing doctors and the person seeking assisted dying. The removal of clause 9(2)(b) would eliminate the requirement to explain and discuss the diagnosis and prognosis, treatment options and palliative care. Additionally, the amendment would remove the requirement to discuss the person’s wishes in the event of complications arising in connection with the self-administration of an approved substance, which may be seen as important for fully informed decision making.
I thank the Committee for its attention.
Kim Leadbeater (Spen Valley) (Lab)
I will try to keep my comments as brief as possible because we have had another very thorough discussion. First, my amendment 424 is, as the Minister said, a simple drafting change in clause 40 that confirms that “preliminary discussion” means a discussion as per clause 4(3).
Amendment 275 from my hon. Friend the Member for Sunderland Central would, in many circumstances, broaden the scope of the conversation that the doctor would have with the patient, and I am happy to support it.
I am also happy to support the very sensible amendment 108 from my hon. Friend the Member for East Thanet (Ms Billington). It is perfectly acceptable to ask the doctor to offer to refer the patient to a specialist, as they would probably do in most cases anyway, but the amendment is for clarity.
I refer colleagues to the comprehensive comments on my amendment 183 earlier in proceedings, and also to the support of the British Medical Association. Following Second Reading, I listened carefully to Members’ concerns about the possibility of doctors only discussing assisted dying with patients. Even though the Bill states that that cannot be the case, for the avoidance of any doubt the amendment emphasises that the initial discussion mentioned in clause 4(3) may not be conducted without also explaining and discussing the matters mentioned in subsection (4). Accordingly, such a preliminary discussion may not be conducted in isolation from an explanation of and discussion about the matters mentioned in paragraphs (a) to (c) of that subsection—that is, doctors cannot discuss the option of assisted dying in isolation but only in conjunction with discussion about all other available and appropriate treatment.
Indeed, Andrew Green of the BMA told us that
“some patients find it very difficult to bring up sensitive subjects with their doctors, even when those are the most important thing on their mind.”
He asked us to
“please do not pass legislation that makes it harder for doctors to understand their patients.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 42, Q24.]
That concludes my remarks.
Danny Kruger
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 270, in clause 4, page 2, line 25, at end insert—
“(3A) Before conducting a preliminary discussion under subsection (2) the registered medical practitioner must ensure that the person has no remediable suicide risk factors which pose a significant risk to their life.”—(Danny Kruger.)
This amendment requires that the doctor ensures that there are no remediable suicide risk factors before proceeding to the initial discussion about assisted dying.
Question put, That the amendment be made.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I beg to move amendment 414, in clause 4, page 2, line 25, at end insert—
“(3A) If a registered medical practitioner conducts such a preliminary discussion with a person, the practitioner must first ensure the provision of adjustments for language and literacy barriers, including the use of interpreters.”
The Chair
With this it will be convenient to discuss the following:
Amendment 413, in clause 4, page 2, line 31, at end insert—
“(4A) In Wales, a medical practitioner conducting a preliminary discussion under subsection (4) must also discuss with the person their preferred language of Welsh or English.”
Amendment 415, in clause 9, page 6, line 20, at end insert—
“(2A) When making an assessment under subsection (2), the assessing doctor must first ensure the provision of adjustments for language and literacy barriers, including the use of interpreters.”
Amendment 416, in clause 30, page 18, line 25, leave out paragraph (c)
This amendment is linked to Amendment 417.
Amendment 417, in clause 30, page 18, line 32, at end insert—
“(1A) The Secretary of State must, within six months of the passing of this Act, issue one or more codes of practice in connection with the arrangements for ensuring effective communication in connection with the provision of assistance to persons in accordance with this Act, including the use of interpreters.”
This amendment is linked to Amendment 416.
Liz Saville Roberts
I rise to speak to amendment 413, which would require a medical practitioner in Wales who conducts a preliminary discussion under subsection (4) to discuss with the person their preferred language of Welsh or English. Amendments 414, 415, 416 and 417, tabled by the hon. Member for Ipswich, relate to adjustments for language and literacy barriers. I will speak to those amendments, but it is not my intention to divide the Committee on them. Although I am supportive of the drive behind the amendments from the hon. Member for Ipswich, they refer to a situation very different from that of Welsh and English, because the use of Welsh and English has particular statutory implications.
This is the first time I have risen to speak about how we need to tease out the Bill’s implications in the context of reserved and devolved powers, where justice and criminal law are reserved, while health and social care are devolved. Amendment 413 concerns the need, in my belief, to place in the Bill the requirement to determine whether a person wishes to use either Welsh or English in their initial discussions with registered medical practitioners. I firmly believe that this needs to be written into the legislation. Later amendments I have tabled to clauses 5 and 8, and new clause 18 and new schedule 2, also relate to the use of Welsh.
Sojan Joseph (Ashford) (Lab)
I fully support the amendments, but they say that the practitioner conducting the preliminary discussion should use an interpreter. Should the interpreter not also be available for all the interactions that follow on from the preliminary discussion?
Liz Saville Roberts
While I agree with the hon. Member in principle, I am operating within the law in terms of Welsh and English, because there are legal considerations with those two languages in particular.
In the matter we are discussing, the ability for the person to communicate as directly as possible is of the greatest importance. I wonder whether the Minister will respond by saying that the codes of practice in clause 30 will be sufficient, but I emphasise that I took advice from the Welsh Language Commissioner’s office, and it was the Welsh Language Commissioner’s officer who advised that I table the amendments. We are operating in unique circumstances with this being a private Member’s Bill, and we need to have clarity on what is required in relation to how the legislation operates between England and Wales.
Sarah Green (Chesham and Amersham) (LD)
The hon. Lady will know that the Welsh Language Act 1993 put the Welsh language on an equal footing with the English language in Wales. Does she agree that it would be helpful to have clarity on whether the provisions in that Act apply to the Bill?
Liz Saville Roberts
That is exactly what I am seeking to do, and I am seeking to do it as co-operatively and collegiately as possible. But we need to have clarity on this, and our discussions need to be thorough and exact in order to be accurate.
When it comes to the individual’s right to use Welsh in their daily lives, two pieces of legislation are relevant to the Bill: the Welsh Language Act 1993, which predates devolution, and the Senedd’s Welsh Language (Wales) Measure 2011. The Welsh Language Act remains applicable for reserved matters, such as justice, and the Ministry of Justice operates a Welsh language scheme that enables people to use Welsh in courts, tribunals and other areas of justice. The Welsh Language Measure established the office of the Welsh Language Commissioner, who has the power to investigate complaints from Welsh speakers who assert that their freedom to use Welsh has been interfered with; created a Welsh language tribunal to hear appeals against the commissioner’s decisions; and enabled the development standards, which are particularly significant here.
The Welsh Language Measure states that individuals in Wales should be able to conduct their lives through the medium of Welsh if that is what they choose to do. Under the Measure, the NHS in Wales has a statutory duty to deliver services to the public in both Welsh and English. The Welsh language standards are a set of statutory requirements that set out responsibilities to provide services, and they apply to health boards in Wales, as well as to NHS primary care services that are contracted by the health boards. The standards do not apply to independent providers, which since 2019 must follow six Welsh language duties, one of which is to establish and record the language preference of patients. That is where I have got the terminology used in amendment 413.
That is a summary of the relevant considerations but, before I close, it is important to say why this matters to Welsh speakers. I spoke recently to medical practitioners in Wales who wanted me to emphasise their concerns at the lack of specific mention of language rights. I also spoke to the Welsh Language Commissioner’s officers, who advised me on the necessity of the amendments. There is a critique against providing Welsh language services that shrugs its shoulders and says, “Why bother? They all speak English anyway.” That is to ignore how integral language use is to the individual.
We are drafting a Bill to do two things in a very delicate balance: to respect the autonomy of the individual and to safeguard people against abuse in any form. For many Welsh speakers, Welsh is the language of their emotions. It is the language in which they express themselves most fluently, and the first language of their feelings. It matters to this Bill. English is the language of authority, and many Welsh speakers are anxious not to challenge the authority of high-status people such as doctors. They do that out of ingrained politeness, and out of fear of not being able to access services if they put any barriers in the way. That is the way that language gets used. Welsh speakers do not use Welsh in the way that monolingual English speakers use English; monolingual English speakers use English because it is the only language they have. For anyone who is bilingual or multilingual, the use of language is very complicated and sophisticated, and we need to be alert to it in all its respects.
I return to the nature of the relationship between doctors and their patients. Doctors have high status, and a patient approaches a doctor seeking services, advice and context. That is not a power dynamic that we should allow to go unchecked, so I urge the Committee to consider the amendment. I do not intend to press it to a vote, but I want a response from the Ministers. Before Report, I want absolute clarity on its legal necessity or otherwise. I feel instinctively—especially because the Welsh Language Commissioner’s office has told me this—that it should be in the Bill. I would also like a response from Ministers on amendment 414, tabled by the hon. Member for Ipswich.
Rebecca Paul (Reigate) (Con)
I rise to speak briefly to amendments 413 and 414, which are very thoughtful and well-considered amendments. I thank the right hon. Member for Dwyfor Meirionnydd for setting out powerfully and persuasively the importance of the subject. I support the amendments, but in reality we probably need to go further by specifying exactly who would be interpreting and making sure that it is regulated reliably. We do not want just anyone coming in off the street and doing that. That would not be appropriate, so we need to think about whether we need to go further. However, the amendments are a great starting point and would move us closer to where we need to be.
There is much subtlety in this debate. We talked a little in the first week of this Committee about the importance of language and the words that are used. We always need to be cognisant that when we are imparting information to people, particularly in a healthcare context, it is vital that we use language that people understand so that the ramifications of what is being discussed are clear. That is where these amendments become really important, because for those for whom English is not their first language, some of the subtlety and nuance around what a term means could be lost. Interpreters could be an important part of adding the clarity required to ensure that everyone going through the process understands exactly what it involves.
A 2024 Nuffield Council on Bioethics survey found that 39% of people think that assisted dying means withdrawing life support, 19% think that it means providing people who are dying with drugs that relieve symptoms of pain or suffering, and 13% think that it means providing hospice care. That echoes our debate a couple of weeks ago about how assisted dying can be interpreted in quite a few different ways. It is really important that we are clear in the language we use and what we mean by it.
We also find that among ethnic minorities there is sometimes a greater misunderstanding about palliative care. A 2024 King’s College London survey found that 6% of people believe that it is accurate that palliative care involves giving people medicines in order to shorten their life, but 18% of ethnic minority groups think that. We need to be cognisant of that. While 18% of people trust healthcare providers “not very much” or “not at all” to provide high-quality care towards the end of life, that figure increases to 30% for ethnic minority groups. While 6% of people say they have not heard of palliative care, that increases to 22% of people in ethnic minority groups.
It is important to recognise that the text of the amendment is much less stringent than that of section 7 of South Australia’s Voluntary Assisted Dying Act 2021, which strictly regulates interpreters. That goes back to my initial point. Under the South Australian law, they must be
“accredited by a prescribed body”.
They cannot be a family member, cannot stand to benefit from the will and cannot be involved in the patient’s healthcare. It is really important to ensure that a recognised professional is involved in this most important of processes and information sharing.
I support the amendments, although I think they need to go a little further. I look forward to hearing what other hon. Members have to say.
Daniel Francis (Bexleyheath and Crayford) (Lab)
I echo the points that have been made about the importance of the initial conversations, particularly for those who do not have English as their first language. I made a commitment to my hon. Friend the Member for Ipswich that in his absence I would press amendments 414 and 415 to a Division, as he requested.
I support the general principles of the amendments relating to those who are seeking or who need interpretation to explain aspects of assisted dying to them. I support the merit of that principle and the intention behind amendments 414 and 415.
Naz Shah (Bradford West) (Lab)
Like the right hon. Member for Dwyfor Meirionnydd and the hon. Member for Reigate, I will not press the amendments to a vote, but I certainly want to speak to them. I do not think that they go far enough. Let us put ourselves in the position of people of colour: if the English language is seen as superior to or more powerful than Welsh, that means an extra layer of intervention that I do not think the amendments quite capture. We have not even talked about British Sign Language in our discussion of languages, but it is also really important.
I am a qualified interpreter from Urdu to English—in health, funnily enough—and I can tell the Committee that in Urdu there is not even a word for depression. The word for depression does not exist. In a previous life I chaired the largest mental health charity outside London for ethnic minority communities, and I am a former NHS commissioner, so when we talk about health inequalities and patient intervention, I understand acutely the nuances involved in translating from one language to another.
In the first instance, there is a language that someone does not understand. In the second instance, particularly for minority communities who speak languages from the south Asian subcontinent such as Punjabi, Urdu or Hindi, the words do not exist to translate the Bill literally or to talk about assisted death. That speaks to the point that the hon. Member for Reigate made about understanding what it means. I have the same stats that she cited, which show that people do not understand what assisted death is.
I would really value a response from the Minister and from my hon. Friend the Member for Spen Valley to these questions about the nuances of having such a difficult conversation. These are really brave conversations, both on the doctor’s side and on the patient’s. Take a woman from an ethnic minority background whose first language is not English and whose doctor is unable to translate their conversation with her. Would that conversation be disempowering? Would it be empowering? Would we be doing a disservice to that person, with the best will in the world from the doctor? I really would like to understand what consideration is being given to making this accessible, if it is to be a service and a piece of legislation that is open equally to all.
I have mentioned this point a few times and have raised it with the Minister, and I appreciate that the Minister has responded, but this is where my frustration—for want of a better word—comes from about not having an impact assessment in the first place. If we had had an impact assessment, the Government would have looked at these things. Even with small Bills, we go out to consultation for weeks and weeks. With this Bill, we have not spoken to anybody during Committee stage about the nuances of the provisions on languages and what they will mean for patients. Although I support the essence of what the amendments are attempting to achieve, they fall short of providing the necessary protections. I do not know how the Government will address that.
Stephen Kinnock
This group of amendments focuses on language and literacy barriers, including discussion of the use of interpreters and translations. If amendment 414 is agreed to, a registered medical practitioner who conducts a preliminary discussion with a person will first have to ensure the provision of adjustments for language and literacy barriers, including the use of interpreters. It may be helpful to note that, in all areas of practice, registered medical practitioners must uphold the standards in the GMC’s “Good medical practice”, which includes the provision of adjustments for language and literacy barriers.
The purpose of amendment 413 is to require medical practitioners in Wales who are conducting the initial discussion outlined in clause 4 to
“discuss with the person their preferred language of Welsh or English.”
It may be helpful to note that under the Welsh Language (Wales) Measure 2011, the NHS in Wales has a statutory duty to deliver its services to the public in both Welsh and English. The Measure, which gives the Welsh language official status in Wales, states that
“persons in Wales should be able to live their lives through the medium of the Welsh language if they choose to do so.”
The Welsh Government’s active offer for health is intended to support all staff across NHS Wales to provide a service in Welsh for patients, without their having to ask for it.
Technically, I would note that the amendment does not require the medical practitioner to conduct the initial discussion in the person’s preferred language, or to refer the person to another medical practitioner who can conduct it in the person’s preferred language, if they are unable to do so themselves. I have discussed that point with the right hon. Member for Dwyfor Meirionnydd and am more than happy to have a further discussion about how her amendment might work. The concern that I simply flagged was that we have the 2011 Measure and, as with so many of these things, there is a law of unintended consequences. An amendment that may be designed with the best possible intentions could end up disrupting the system and causing confusion or uncertainty, which I am sure she would not want. As with all these things, that is the challenge.
Liz Saville Roberts
We have raised already in the Committee the need for an impact assessment. I have also raised with the Minister the need for an impact assessment in Wales. The fact that we are having this conversation shows that there is an element of uncertainty about exactly whether it is necessary for this provision to be included in the Bill. I am concerned that it could be in a code of practice; I share the concern expressed by the hon. Member for Bradford West that we do not know how such codes of practice will operate, or whether we will have any say over how they operate. However, as the Minister has come to this in a spirit of co-operation, I hope that we will find some clarity. If it appears that it is better for Welsh language speakers that such a provision be set out in the Bill, I hope that he will agree in that respect.
Stephen Kinnock
I am happy to have that discussion, to better understand how it might all work in practice.
If amendment 415 is agreed to, it will mean that an assessing doctor making an assessment under subsection (2) must first ensure the provision of adjustments for language and literacy barriers, including the use of interpreters. As with amendment 414, the Committee may want to note the existing standards that all medical practitioners must uphold, which include requirements for the provision of adjustments for language and literacy barriers.
Amendments 416 and 417 would amend clause 30, which states that the Secretary of State may issue codes of practice on a number of matters, including on arrangements for ensuring effective communication and the use of interpreters. The amendments would impose a duty on the Secretary of State to issue one or more codes of practice in connection with arrangements for ensuring effective communication, including the use of interpreters, and to do so within six months of the passing of the Act. The requirement to issue any such code of practice within six months may prove unworkable. Under clause 30, it would be necessary to consult on the code of practice, make regulations to allow for the code of practice to come into force, have the regulations approved by both Houses of Parliament and then issue the code of practice, all within a six-month period after the passing of the Act.
As I have said, the Government will continue to remain neutral on whether or how the law in this area should change. As I have made clear, that is a matter for the Committee and for Parliament as a whole. However, I hope that these observations are helpful to members of the Committee in considering the Bill and the amendments tabled to it.
Kim Leadbeater
On amendment 413, from the right hon. Member from Plaid Cymru—with apologies, I will not embarrass myself by trying to pronounce the wonderful name of her constituency—I am very sensitive to issues around devolution. We have had many conversations about it, which I am very happy to continue. The Minister has confirmed, as I understand it, the issue around the Welsh language, in that it would be covered by the Welsh language legislation, which states that individuals in Wales
“should be able to live their lives through the medium of the Welsh language if they choose to do so.”
I am very supportive of that. I am also happy to continue those conversations, where necessary, with the Minister.
I turn to amendments 414 and 415. I think several Members of the Committee have had the same message from my hon. Friend the Member for Ipswich, who was clearly struggling to get here on time. I, too, would be happy to move them in his name. They seem very sensible amendments, and I am happy to support them. Along with the GMC’s “Good medical practice”, which sets out the principles, values and standards of professional behaviour expected of doctors, it is a belt-and-braces approach to an issue that is very important, for reasons that several hon. Members have set out.
I cannot support amendments 416 and 417, however, because the timeframe that they would impose would not fit with the rest of the Bill. In reference to the two-year implementation period, that would just not be workable or possible.
Liz Saville Roberts
I will not press amendment 413, because I anticipate further conversations on these matters.
Amendment 414 agreed to.
Amendment proposed: 285, in clause 4, page 2, line 28, leave out paragraphs (a) to (c) and insert—
“(a) the person’s diagnosis and prognosis, in consultation with a specialist in the relevant illness, disease or medical condition,
(b) any treatment available and the likely effect of it, in consultation with a specialist in the provision of such treatment,
(c) any palliative, hospice or other care, including symptom management and psychological support, in consultation with a specialist in palliative care.”—(Naz Shah.)
This amendment ensures that a specialist carries out the assessment of the patient, the treatment options available and the palliative care options available, since these may not be known to a doctor coordinating an assisted death.
Question put, That the amendment be made.
Danny Kruger
I beg to move amendment 71, in clause 4, page 2, line 31, at end insert—
“(4A) The practitioner must, following the preliminary discussion under subsection (3), refer that person to the Assisted Dying Agency if the person asks them to do so.”
This amendment is consequential on NC4 and would establish a pathway by which a person is referred to the Assisted Dying Agency.
The Chair
With this it will be convenient to discuss the following:
Amendment 72, in clause 5, page 3, line 16, leave out paragraph (b) and insert—
“(b) has been assigned to the person by the Assisted Dying Agency,”
This amendment is consequential on NC4 and provides that the coordinating doctor must have been assigned to the person by the Assisted Dying Agency.
Amendment 73, in clause 7, page 4, line 21, leave out paragraphs (b) and (c) and insert—
“(b) provide the person who was assessed and the Assisted Dying Agency with a copy of the statement.
(3A) Upon receipt of the statement specified in subsection (3)(a), the Assisted Dying Agency must assign to the person, as soon as practicable, another registered medical practitioner who meets the requirements of section 8(6) for the second assessment (‘the independent doctor’).”
This amendment is consequential on NC4 and would require the coordinating doctor to send a copy of their statement to the Assisted Dying Agency. That Agency must then to assign an “independent doctor” to the person.
Amendment 75, in clause 8, page 5, line 9, leave out “coordinating doctor” and insert “Assisted Dying Agency”.
This amendment is consequential on NC4.
Amendment 74, in clause 8, page 5, line 16, at end insert—
“(ba) has been assigned to the person by the Assisted Dying Agency,”.
This amendment is consequential on NC4 and provides that the independent doctor must have been assigned to the person by the Assisted Dying Agency.
Amendment 76, in clause 9, page 6, line 14, leave out paragraph (e).
This amendment is consequential on NC4.
Amendment 77, in clause 11, page 7, line 18, after “appointment,” insert
“by the Assisted Dying Agency”.
This amendment is consequential on NC4.
Amendment 78, in clause 14, page 10, line 7, leave out from “person)” to end of line 12 and insert “the Assisted Dying Agency”.
This amendment is consequential on NC4.
Amendment 79, in clause 16, page 11, line 18, leave out subsections (2) and (3) and insert—
“(1A) The Assisted Dying Agency must, as soon as practicably possible, record the making of the statement or declaration.”
This amendment is consequential on NC4.
Amendment 80, in clause 17, page 11, line 36, leave out subsections (2) and (3) and insert—
“(1A) The Assisted Dying Agency must record the cancellation.”
This amendment is consequential on NC4.
New clause 4—Assisted Dying Agency—
“(1) There shall be a body known as the Assisted Dying Agency (‘The Agency’).
(2) The purpose of the body is to coordinate requests from people to be considered for assisted dying, including assigning, at the appropriate junctures, a coordinating doctor and independent doctor for a person seeking assistance to end their own life.
(3) Where a person has previously been referred to the Agency, no future referral relating to that person can be proceeded with by the Agency unless it considers there has been a material change in the person’s circumstances.
(4) The Secretary of State must make regulations setting out—
(a) the staffing and remuneration of such staff,
(b) the procedures of the Agency, and
(c) the means by which the Agency can pay coordinating doctors and independent doctors for services rendered under this Act.
(5) The Agency’s expenditure is to be paid out of money provided for by Parliament.
(6) The Agency must, for each financial year, prepare accounts in accordance with directions given to it by the Treasury.
(7) The Agency’s chief executive is its accounting officer.
(8) As soon as reasonably practicable after the end of each financial year, the Agency must prepare a report about the performance of its functions during that year and lay that report before both Houses of Parliament.
(9) Regulations under subsection (4) are subject to the affirmative procedure.”
This new clause would create a new body that was principally responsible for coordinating and recording statements and declarations in relation to a person’s request for assistance to end their own life.
Danny Kruger
Although these provisions may seem irrelevant to the Bill—I do not think any of us wishes to see the creation of an assisted dying agency—I am nevertheless grateful to my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer) for tabling them. He is playing his usual role of keeping us honest.
It is extraordinary that nowhere does the Bill lay out exactly how the assisted dying service would be delivered—whether it would be an NHS service, a private service or some mix of the two. I am therefore grateful to my hon. Friend for being clear in his suggestion that it should be a non-NHS service and that, if we are to pass this law, we should establish a bespoke agency for the explicit purpose of delivering that service. It is a rather macabre but logical way of delivering on the proposal in the Bill.
The fact is that many doctors, faced with the prospect of being asked to participate in assisted dying, have expressed their preference for it to be delivered outside the NHS. In its written evidence, the British Medical Association, which has been cited a number of times today, says:
“There is nothing in the Bill about how an assisted dying service might be delivered, although the possibility of a separate service is mentioned in the explanatory notes.”
The BMA’s view is that assisted dying
“should not be part of the standard role of doctors or integrated into existing care pathways”.
I stress that point, because it has often been suggested in the course of debate that the way assisted dying will work will be as part of a holistic range of options—pretty indistinguishable from palliative care or other treatment options put before patients. The BMA is clear that assisted dying
“is not something that a doctor can just add to their usual role.”
The Royal College of General Practitioners has also pointed out in evidence that the shape of the service is not set out in the Bill.
Kit Malthouse (North West Hampshire) (Con)
On a point of order, Mr Dowd. In his opening sentence, my hon. Friend said that none of us wanted to see the creation of an assisted dying agency. My interpretation of our speaking to a particular amendment is that we have to address what it intends to do in the Bill. My hon. Friend said that he does not want what the amendment intends and that he is speaking more generally about the delivery of the service. Could we have your guidance as to whether that is in order? One of our problems is that we are having very expansive debates, and previous Chairs have sought to keep everyone in order. I am anxious that my hon. Friend does not exhaust himself by straying from the central point in the amendment.
The Chair
The fact of the matter is that the hon. Member does not have to agree with the amendment, so he is perfectly entitled to speak in that regard.
Danny Kruger
I am grateful to you, Mr Dowd, and to my right hon. Friend for his concern for my welfare, which is much appreciated. However, he will be relieved to know that I have plenty of energy and can keep going.
To speak seriously, it is very germane to the Bill that the amendments are considered. As I was explaining, GPs and other medical practitioners have been concerned about the absence from the Bill of clauses to specify the delivery of the service, so I am grateful that we have this opportunity to discuss that and to hear from the Minister and the sponsor how they imagine the Bill would operate and whether it would, indeed, be appropriate to establish some kind of agency along the lines proposed. The reason I object to an assisted dying agency is that I object to assisted dying, but I see the logic of the proposal if we are to proceed with the principle of the Bill.
It is extraordinary that this crucial question is not set out. In his evidence to us, Chris Whitty said rather airily that it was for Parliament to decide how the service should be delivered. I would stress that most medics involved, particularly in palliative care and care for people at the end of life, are very hostile personally to the suggestion that they should participate in assisted dying. The BMA’s 2020 survey of its members found that 76% of palliative medicine doctors would be unwilling to participate if assisted dying were legalised. The Royal College of Physicians 2019 members’ poll found that 84% were opposed.
Kit Malthouse
This is not in order; it has nothing to do with the amendment.
The Chair
If the right hon. Gentleman wishes to make a point of order, he should feel free to make a point of order.
Kit Malthouse
On a point of order, Mr Dowd. I am grateful to you, and I am sorry to interrupt. I do not mean to be rude, but I cannot see how this is germane to the amendment. We have a lot of amendments to deal with in detail, and expanding the debate into a wider one about whether the medical profession agrees with assisted dying does not seem to me to address the question of whether we should include the amendment in the Bill, which is what we are here to decide.
The Chair
The right hon. Member is perfectly entitled to express his view, and I respect it. I will make a judgment in due course as to whether the hon. Member is stepping outside the latitude of the issue. He will no doubt bear in mind your intervention and my response to it.
Danny Kruger
I, too, am grateful, Mr Dowd. I stress that I am discussing the suggestion in the amendment that assisted dying be taken out of the NHS and not be part of the normal pathways doctors are invited to participate in. It strikes me as relevant that most doctors, were the law to be passed, would wish for something along the lines of the amendment to be included.
We do not know exactly how that would work. We know that it could potentially be private, according to the scheme set out in the amendment, or it could be within the NHS. We know from the references in clause 40 that private provision is envisaged, because of the talk of reasonable remuneration for the provision of services. So it would be outside the normal service expectation of medical professionals employed by the NHS; indeed, we know that it could be a lucrative market.
Sojan Joseph
Does the hon. Member think that, if we bring in an agency from outside the NHS—from the private sector—this will become like a business?
Danny Kruger
The hon. Gentleman is absolutely right. The opportunity is there in the Bill for private businesses to be established to deliver assisted dying services. Indeed, it would be quite a lucrative money-making enterprise. Estimates have been given of between 5,000 and 17,000 assisted deaths per year, depending on how they are arrived at. If the charges employed by Dignitas—which is in a sense the model being proposed here—are anything to go by, it could be in the region of £5,000 to £10,000 per patient. Even a small proportion of that would be significant—a multimillion-pound business would be possible under the Bill. Advertising would also probably be possible; we saw TfL suggest that the Dignity in Dying adverts in the tube before Second Reading were compliant. There is no prohibition in the Bill on advertising or on people making money from it.
However, the Bill also specifies that this would be a state-protected service, so if it were to be a private enterprise, it would have all sorts of state protections that would not normally apply to private providers of anything. Under clause 25, the providers would be exempt from any civil liability for providing assistance under the Bill. Under clause 29, a death would be exempt from investigation under the Coroners and Justice Act 2009. Clause 30 says that a failure to comply with any code of practice
“does not of itself render a person liable to…criminal or civil proceedings”.
The only monitoring that would be done would be undertaken by the voluntary assisted dying commissioner, who is not an independent figure, but the person responsible for setting up the panels that approve the deaths.
The Chair
Order. We need to get back to the assisted dying agency. Can the hon. Member keep to that, please?
Danny Kruger
I shall—I am winding up now, Mr Dowd. These amendments go to the heart of this great absence—this blank space—in the middle of the Bill, which is how on earth it will be delivered. Who would deliver it, and under what regulation? What would be their terms of engagement? All of that represents quite a scandalous gap in the Bill, and my concern is with that enormous gap.
I want to conclude with a reflection on that lack of clarity. Elizabeth Gardiner, who I understand was the very experienced parliamentary drafter who contributed her time to draft the Bill, talked on the Hansard Society podcast of the opportunity that drafting has to change the law. She noted that if the law
“is a restriction that would curtail the ability of this to be delivered through the National Health Service, the Bill could change that.”
So it has been suggested that the Bill would require changes to the National Health Service Act 1946 to remove what the Hansard Society calls the “duty to protect”.
The Chair
Order. The hon. Gentleman heard what I said earlier, and I do not want to reaffirm it, but can we get back to the substance of the assisted dying agency provision, please?
Danny Kruger
I have one last point to make, Mr Dowd, which I hope you will regard as in order because, as I said, it goes to the heart of things. At the moment, the Bill does not specify how these things should be done, and Elizabeth Gardiner, the drafter behind it, said on the radio:
“we didn’t have time to go into all the detail of how those regimes work and to make the provision on the face of the Bill. And so there are regulation making powers there, which enable that provision to be set out”—
I believe that that is in clause 32. Enormous Henry VIII powers are being established. I deeply regret the gap in the Bill, and I am grateful to my hon. Friend the Member for Runnymede and Weybridge, who tabled these proposals, for enabling us to have this debate.
The Chair
Order. I remind the hon. Member to keep to the issue that we are discussing, because if he or any other Member does not, and goes beyond the scope of what they really should be sticking to, I will take a much less lateral approach in future. I say that gently and with the best intention.
Stephen Kinnock
I will speak to this group of provisions as one, given that amendments 71 to 80 are consequential on new clause 4. The purpose of these provisions is to create a new statutory body—the assisted dying agency—which has the purpose of co-ordinating requests from people to be considered for assisted dying. The provisions provide for various functions and duties of the agency, including assigning a co-ordinating doctor and an independent doctor to a person seeking assistance to end their own life.
The agency would be responsible for accepting referrals, replacing registered medical practitioners with the roles of assigned co-ordinating doctor and assigned independent doctor, and receiving and recording declarations, statements and cancellations made by co-ordinating doctors, independent doctors and those receiving assistance under the Bill.
That would be a change from the current provisions in the Bill, which place a number of those duties on the individual co-ordinating doctor and independent doctor. One effect of the proposed new clause is that a new agency would have to be established by the Government. If it passed, we would have to work to assess how that might be possible in practice.
I hope my brief remarks are helpful to Committee members in considering the Bill, the amendment and the new clause.
Kim Leadbeater
I have nothing to add, other than to agree with the hon. Member for East Wiltshire; I do not think any of us on the Committee are keen on the implementation of the assisted dying agency.
Danny Kruger
I really regret that we have had such a small debate on the enormous question of how on earth assisted dying would actually be delivered. We are leaving it to Ministers, subsequent to the passage of the Bill, to design this service. The clear possibility is that a private enterprise could run the service. It might be an NHS service. The fact that that is unclear in the Bill is shameful, but I am grateful we have had the opportunity to debate the matter, sort of, and I am not going to press the amendment to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 276, in clause 4, page 2, line 31, at end insert—
“(4A) A medical practitioner must not conduct a preliminary discussion with a person under subsection (3) until a period of 28 days has elapsed, beginning with the day the person had received a diagnosis of the terminal illness.” —(Naz Shah.)
This amendment would mean a doctor could not conduct a preliminary assessment until 28 days from the day the person received a diagnosis of the terminal illness.
Sean Woodcock (Banbury) (Lab)
I beg to move amendment 345, in clause 4, page 2, line 31, at end insert—
“(4A) If a registered medical practitioner conducts such a preliminary discussion with a person, the practitioner must record and document the discussion and the information provided to the patient in their medical record and provide a copy to the patient.”
This amendment would add a requirement ensuring that the preliminary discussion is recorded and forms part of the patient’s medical record.
The Chair
With this it will be convenient to discuss the following:
Amendment 288, in clause 4, page 2, line 36, at end insert—
“(6) All efforts to dissuade the person from ending their own life must be recorded in the clinical records and subsequently made available to the medical examiner.”
This amendment would require the coordinating doctor to record efforts to dissuade the person from taking their own life and subsequently make this available to the medical examiner.
Amendment 297, in clause 7, page 4, line 3, at end insert—
“(1A) Any consultation as part of the assessment must have a full written transcript as its record of the conversation.”
This amendment would require all consultations for the first assessment to have a full written transcript.
Amendment 295, in clause 7, page 4, line 26, at end insert “, and
(d) collate all evidence provided regarding the condition of the patient in a document to be provided to the Medical Examiner and the relevant Chief Medical Officer after the person has received assistance to die in accordance with this Act.”
This ensures that the documentation that will be required by the Medical Examiner will be available when required.
Amendment 300, in clause 8, page 4, line 30, at end insert—
“(1A) Any consultation as part of the assessment must have a full written transcript as its record of the conversation.”
This amendment would require all consultations for the second assessment to have a full written transcript.
Amendment 302, in clause 8, page 5, line 10, at end insert “and
(c) provide details of the way the assessment was conducted and the written transcript of any consultation to the relevant Chief Medical Officer and the person’s own GP, maintaining a copy to be supplied to the relevant Medical Examiner after the person’s death.”
This amendment will ensure that medical records are in line with procedures for presentation to the Medical Examiner.
New clause 19—Recording of preliminary discussion—
“(1) This section applies where a registered medical practitioner (‘the practitioner’) conducts a preliminary discussion with a person.
(2) Where the practitioner is a practitioner with the person’s GP practice, they must, as soon as practicable, record the preliminary discussion in the person’s medical records.
(3) In any other case—
(a) the practitioner must, as soon as practicable, give a written record of the preliminary discussion to a registered medical practitioner with the person’s GP practice, and
(b) that registered medical practitioner must, as soon as practicable, include the record in the person’s medical records.”
This new clause requires a practitioner to include, in the person in question’s medical records, a record of a preliminary discussion under clause 4.
Sean Woodcock
Amendment 345 was tabled by my hon. Friend the Member for Shipley (Anna Dixon); I referred earlier to her record in this area. The amendment would ensure that medical practitioners record and document preliminary discussions with a patient about assisted dying and provide the patient with that information. I welcome the amendments from the Bill’s promoter to make records of the first and second doctor’s assessments. Those safeguard patients and the process. It is important that we have transparency and clarity on such weighty decisions.
Several people raised in their written evidence the importance of good documentation. These amendments meet those concerns. I assume that not including a record of the preliminary discussion is merely an oversight by the Bill’s promoter. The amendment seeks to do what she says she wants to do—protect patients and doctors—by making records of the discussions.
In written evidence TIAB55, Professor Allan House suggested that
“It should be required as it is in all other areas of medical practice, that specific written records are kept of this assessment and of procedures followed to end life—not just the substances used. The written record to be included in the person’s medical record so that it is available to the Medical Examiner. Records also to be available at appraisal to enable assessment of the quality of the process.”
Kim Leadbeater
I thank my hon. Friend for his comments. Will he take note of my new clause 19, which is in this group and states that the preliminary discussion has to be recorded?
Sean Woodcock
I am grateful for that intervention, which goes to the heart of my next question: why would we record and document later conversations, but not the initial one? That conversation could be one in which coercion takes place and without a record of it happening, patients and doctors are at risk. We have acknowledged that patients can be influenced by their doctors, whether consciously or unconsciously. We also noted how certain groups lack trust in the healthcare system. Dr Jamilla Hussain, in her written evidence, TIAB252, explained that the various inequalities faced by certain communities
“contribute to mistrust in health and social care services”
and that
“minority patients frequently express fear of having their lives shortened by healthcare providers, especially at the end-of-life with medication such as morphine and midazolam.”
In situations where patients are uncertain or lack trust in medical professionals, a record of the initial conversation is important to protect everyone involved. As Professor House stated, documenting the process and making records is common medical practice, so why would we differ here? We must protect patients and doctors, and making clear records at every stage of the process contributes to that.
Naz Shah
I rise to speak to amendments 288 and 295 tabled by my hon. Friend the Member for York Central (Rachael Maskell), both of which would improve the quality of records kept about people applying for assisted dying. Their aim is to make parliamentary and public scrutiny of the system easier and better. Amendment 288 would insert a new subsection at the end of clause 4, on page 2, line 36, reading:
“All efforts to dissuade the person from ending their own life must be recorded in the clinical records and subsequently made available to the medical examiner.”
That recognises that a doctor may follow existing guidelines and seek to dissuade the person from ending their life. It would ensure that such efforts are recorded to improve understanding of the Bill and its interaction with suicide prevention. As Professor Allan House noted in his written evidence, the National Institute for Health and Care Excellence guidelines apply
“in other areas where it is important to explore thoughts about life not being worth living”.
After an episode of self-harm or instances of suicidal thoughts, the medical professionals will explore
“current and recent personal and social circumstances, recent adversities, psychological state beyond merely assessing mental capacity and the presence of severe mental illness.”
In line with this suicide prevention strategy, a doctor may feel the need to explore those psychosocial factors and seek to dissuade the person from ending their life. We know that suicidal thoughts and depression are particularly common among terminally ill people. Dr Annabel Price, a member of the faculty of liaison psychiatry at the Royal College of Psychiatrists, gave oral evidence that among people who need palliative care at the end of their life,
“20% will have diagnosable depression, around 10% will have a wish to hasten death, and around 4% will have a more persistent wish to hasten death.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 270, Q351.]
She went on to say:
“Those who had a wish to hasten death were 18 times more likely to also feel suicidal”.––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 275-276, Q359.]
Terminally ill people are therefore at particular risk, and it is vital that the Bill does not diminish wider suicide prevention strategies. The amendment would record instances where the medical practitioner may try to dissuade the person from ending their life. Some doctors may take the view of Professor Allan House, who said in his written evidence,
“a statement about wanting to end one's life cannot be simply taken as the result of a straightforward rational decision to choose one type of end of life care over others.”
Furthermore, this amendment would also address some of the concerns about unconscious bias. Recording efforts to dissuade the person from ending their life would show when doctors assume a person should have an assisted death where others should not. Fazilet Hadi of Disability Rights UK spoke about this in her oral evidence:
“We often find that doctors, because they cannot treat or cure us, do devalue our lives. We have had disabled people who have actually had it suggested to them or their families that their lives are expendable, when actually those people have got a lot of years to give.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 180, Q234.]
Providing records of a doctor’s efforts to dissuade the person from ending their life will address some of these concerns. It will ensure that there can be a more meaningful review of the impact of the Bill on different groups, so that the right to die does not become a duty to die.
In conclusion, amendment 288 would strengthen the safeguards in the Bill by ensuring transparency and accountability in doctor-patient discussions by requiring the documentation of efforts to dissuade individuals from ending their lives. We would lessen the impact of the Bill on wider suicide prevention strategies and provide evidence for meaningful review at a later date.
Amendment 295, also tabled by my hon. Friend the Member for York Central, is about enabling public and parliamentary scrutiny of the assisted dying system. It will ensure that, if the Bill passes, there are good records of all applications for assisted dying and that they are readily available to the medical examiner. Some Members will know exactly what the medical examiner does, but I note for the record that it is a newly created public office, in operation since 2024. The task of the medical examiner is to examine any deaths within the context of healthcare, whether NHS or private, that are not being examined by a coroner.
In light of the magnitude of the decision being made, it is important for records to reflect that. It is equally important that those who will depend on the evidence can access the same evidence on which the co-ordinating doctor made their determinations. Therefore, it is essential that the basis of the decision making is accurately recorded, along with the evidence from other practitioners. For instance, if a palliative care specialist, a clinical consultant and a psychiatrist or psychologist have been consulted, evidence of what they did and said must be readily available, and it is essential that that sits with the record of the co-ordinating doctor. The information must be gathered for the medical examiner to be able to come to their determination with all the evidence before them. It is also vital for the reporting mechanisms to be deployed for the process by which the chief medical officer compiles their report. That is ultimately what Parliament will be able to scrutinise.
Both these amendments would greatly improve the quality of records kept on assisted dying. If I recall correctly, the role of the medical examiner was brought into legislation following Shipman, to tidy up and tighten the records we keep—because clearly we had lessons to learn from them. Also, we have heard in evidence that some other jurisdictions keep good medical records, especially when that speaks to people who are potentially coerced. In one jurisdiction, we had somebody who said that they had never felt a burden, but there were many more who said that they had felt a burden.
There is no doubt that these services will continuously need improving. If we keep these records and understand that these conversations have been had then, ultimately, should this Bill become law, these records would form part of the data collection that we could rely on as parliamentarians and for those service improvements. The amendment speaks not just to the Bill itself, but to ensuring that it continues to do what it is intended to do going forward.
These amendments improve equality in assisted dying. That, in turn, will make it far easier for us in Parliament, for our constituents and for the media to find out what is happening with any assisted dying system. In this country, we believe in open justice and open Government. Assisted dying is much too important to be allowed to operate without strong scrutiny by the press, the public and ourselves in Parliament. I therefore urge hon. Members to vote for both these amendments.
Sojan Joseph
I rise to speak in support of the amendment. The documentation in our healthcare system is a very important matter. It helps us to share good practice and to learn from mistakes. Whether in secondary care, primary care or nursing homes, the quality and the safety of our patient care is monitored by the Care Quality Commission, which uses clinical documentation to carry out its process of monitoring that quality and safety. It is important that any conversation had with patients by the doctor, or by any medical professional or multidisciplinary team, is documented clearly. That will help to safeguard our patients.
Stephen Kinnock
This series of amendments relates to the various discussions and assessments that registered medical practitioners, co-ordinating doctors and independent doctors will have with individuals seeking assistance to end their life in accordance with the Bill. In particular, they seek to amend the requirement for recording information about those discussions. As I have done throughout, I will limit my remarks to comments on legal and practical impacts of amendments. In executing our duty to ensure that the legislation, if passed, is legally robust and workable, the Government have worked with the hon. Member for Spen Valley on amendments to the Bill, including new clause 19 in this group.
Amendment 345 would require the registered medical practitioner, following a preliminary discussion with a person, to record and document in that patient’s medical records the discussion and any information provided to the patient, and it would require them to provide a copy to the patient.
Amendment 288 adds an additional requirement on the registered medical practitioner who conducts an initial discussion with the person on the subject of an assisted death to record all efforts to dissuade a person from ending their own life in the person’s medical records, and subsequently to make those records available to the medical examiner. As drafted, it is not clear whether the wording “all efforts” is intended to include efforts made by the registered medical practitioner alone, or to include efforts made by others that could be reported to the registered medical practitioner. Further clarity would be needed to establish the practical implications of the amendment. The amendment does not require this information to be recorded at a specific time. I would also note that, operationally, medical examiners are not involved in scrutinising all deaths. Some deaths are investigated by coroners. Clause 29 will consider inquests and death certifications in relation to assisted death.
Amendment 297 requires a full written transcript to be produced for any consultations that occur as part of the first assessment undertaken by the co-ordinating doctor. That would potentially add some operability challenges and, if passed, we would want to explore those further. For example, there could be situations in which the person seeking assistance does not want there to be a written transcript. Further clarity is also required on whether the amendment intends to capture only consultations between the co-ordinating doctor and the patient, or whether it also intends to capture conversations with relevant persons other than the person seeking an assisted death.
I turn now to amendment 295. As the Bill stands, if, having carried out the first assessment, the co-ordinating doctor is satisfied that the person being assessed has met all requirements in clause 7(2), the co-ordinating doctor must:
“(a)make a statement to that effect in the form set out in Schedule 2, and sign and date it,
(b) provide the person who was assessed with a copy of the statement, and
(c) refer that person, as soon as practicable, to another registered medical practitioner who…is able and willing to carry out the second assessment”.
Amendment 295 seeks to add an additional requirement for the co-ordinating doctor to
“collate all evidence provided regarding the condition of the patient in a document to be provided to the Medical Examiner and the…Chief Medical Officer after the person has received assistance to die”
in accordance with the Bill. The aim of the amendment is to ensure that the documentation will be available when required by the medical examiner.
Naz Shah
The Minister referred to a patient not wanting to keep a written record. How does that fare if there is a potential issue of negligence later on? Is that not a requirement of every NHS service that we provide? For example, in the case of a kidney donation where an independent assessor was needed, the details would have to be kept. I am just a bit confused. I wonder if the Minister might comment on that.
Stephen Kinnock
The challenge we found with amendment 297 is that it is not entirely clear what would happen if the person were to say expressly that they did not want a written record. That eventuality is not baked into the Bill as it is currently drafted, so I think it would require a lot of thinking through—again, we are back to the law of unintended consequences—about the impact the amendment would have in certain circumstances if, for example, someone were to say expressly that they did not want a written record. That is the question: the impact of the amendment is not clear.
Naz Shah
If that is an issue, then it is my understanding, being new to Bill Committees, that it is not because the provision is poorly drafted, but because the outcome is not clear. Can the Government not clarify that on Report or Third Reading? I have heard nothing from the Government, even where they are supportive of amendments, about going away and looking at them. There is none of that conversation coming from the Government. Perhaps the Minister will comment on that.
Stephen Kinnock
As my hon. Friend knows, there will be an impact assessment on the Bill once it has cleared Committee. The Government’s impact assessment would be based on the Bill as it cleared Committee, so it would include the amendment we are discussing, if it were to pass. As things stand, I cannot tell her what the impact of the amendment would be in the event that it passed, because that has not been thought through from all the different angles, including if someone were to expressly say that they did not want a written transcript.
I turn to amendment 300, which would require a full written transcript of the second assessment as a record of the conversation. This goes further than the requirement that the Bill currently places on the independent doctor, which is to make a statement in the form in schedule 3. As with amendment 297, further clarity is required on whether the amendment is intended only to cover consultations with the patient, or whether conversations with other individuals should also be transcribed.
Amendment 302 would require the independent doctor to provide details of the way in which the second assessment was conducted alongside a written transcript of any consultation to the relevant chief medical officer and the person’s GP.
Naz Shah
The Minister is being very generous with his time. I want to understand the idea that someone might say that they do not want a written transcript, when everybody in our country who uses the NHS has a written medical record. Why, in this instance, are the Government of the view that we should stray from normal practice?
Stephen Kinnock
I think it reflects the fact that, as the Committee has agreed, we are in uncharted territory on a whole range of issues here. I think it is best to think through the implications of every amendment. If it passes, every clause of the Bill will have to be assessed for its potential impact. I have other questions about amendment 297 in my notes. Does it intend to capture only the consultations between the co-ordinating doctor and the patient, or does it intend also to capture conversations with relevant persons other than the person seeking an assisted death? That is not clear from the amendment. What I am saying is that it poses more questions than it answers.
Kim Leadbeater
I might be wrong, but my understanding is that a patient could ask for access to their medical records at any point. On the basis that new clause 19 requires the doctor to record a preliminary discussion, presumably, if a patient wanted to see that record, they would be able to.
Stephen Kinnock
I agree with my hon. Friend on that point. As I stated at the start of my comments, officials have worked with her on new clause 19, which I think goes a long way to clearing up many of the points that have been raised, including hers.
The Chair
Order. The Minister is in the middle of responding to a particular question. Will Members wait until he has done so before standing up to ask a question on a question, please?
Stephen Kinnock
Thank you, Mr Dowd. I have answered the question from my hon. Friend the Member for Spen Valley and am happy to take another intervention.
Juliet Campbell
Throughout the debate, we have spoken consistently about things that happen normally within medical practice, but the amendment we are discussing would move us away from ordinary practice. Could the Minister explain why we would do that?
Stephen Kinnock
As I have set out, officials have looked at amendment 297 and raised a couple of flags or questions about it. One is what we have discussed about the transcript. The other is that it is not clear whether other people should be included in the consultation. I do not think it is so much about departing from common practice as about the questions that the amendment raises. As always, the Government are neutral. The Government trust that if the Committee, in its wisdom, sees fit to pass the amendment, it will be workable, but as things stand it raises a number of questions. That is all I am flagging.
Naz Shah
The Minister is being generous with his time. I am even more confused now. Originally, the Minister suggested that a patient might not want a transcript, but in response to the question from my hon. Friend the Member for Spen Valley, he mentioned that under new clause 19 people will have access to their written records. That appears to be a contradiction. I just want to nail this down. What will it be? If a patient does not want a written record, we would not have a written record to access, so that contradicts the Minister’s response. I want to understand exactly what the Minister is suggesting.
Stephen Kinnock
The Government have worked with my hon. Friend the Member for Spen Valley on new clause 19. The Government’s view is that if the Committee accepts it, then that new clause will provide the level of robustness and resilience that the system requires. The Government are not convinced that, on its own, the amendment that my hon. Friend the Member for Bradford West is talking about would provide the level of robustness and resilience we would be looking for. As things stand, the choice has been made to work with my hon. Friend the Member for Spen Valley on new clause 19, and we are satisfied that that would provide us with the operational integrity we need.
Amendment 302 would require the independent doctor to provide details of the way in which the second assessment was conducted, alongside a written transcript of any consultation to the relevant chief medical officer and the person’s GP. The independent doctor would be required to maintain a copy of that record to provide to the relevant medical examiner.
As I have mentioned, in executing our duty to ensure that the Bill, if passed, is legally robust and workable, the Government have worked with my hon. Friend the Member for Spen Valley on new clause 19. The new clause would require a practitioner to include a record of a preliminary discussion having taken place under clause 4. The record of the preliminary discussion must be included in the person’s medical records. Where the medical practitioner is a member of the person’s GP practice, they must make such a record in the person’s medical records as soon as practicable. Where the medical practitioner is not a member of the person’s GP practice, they must, as soon as practicable, provide a written record of the preliminary discussion to a medical practitioner at the person’s GP practice, who will then be required by the new clause to include it in the person’s medical records as soon as practicable.
The Committee may wish to note that amendment 424 would add a definition of “preliminary discussion” to the Bill that would make it clear what discussion medical practitioners would be required by law to record.
That concludes my remarks on this group. I thank the Committee for its attention.
Kim Leadbeater
I rise to speak briefly to my new clause 19, which refers to the recording of the preliminary discussion. It would require the practitioner to include in the medical records of the person in question a record of a preliminary discussion under clause 4. The initial discussion with the patient is very important and, as such, should be recorded in their records. I hope that colleagues agree and will support the new clause.
Sean Woodcock
I would like to press amendment 345 to a vote.
Question put, That the amendment be made.
The Chair
Before I call Danny Kruger to move amendment 412, I remind Members to keep within scope and to ensure that any points raised are relevant and not repetitive, or I will intervene.
Danny Kruger
I beg to move amendment 412, in clause 4, page 2, line 32, leave out subsection (5).
The Chair
With this it will be convenient to discuss the following:
Amendment 341, in clause 4, page 2, line 33, leave out from “subsection (3)” to the end of line 36 and insert
“is not required to refer the person to another medical practitioner but must ensure that the person is directed to where they can obtain information and have the preliminary discussion.”
This amendment would provide that a registered medical practitioner who is unable or unwilling to have the preliminary discussion with a person must provide information to the person about where they can have that discussion, but that this need not take the form of a referral.
Amendment 338, in clause 4, page 2, line 34, leave out from “so” to end of line 36 and insert
“direct them to another registered medical practitioner or the independent information and referral service established under section [Independent information and referral service]”.
This amendment, which is linked to NC13, would mean that a registered medical practitioner who was unwilling to have preliminary discussions would direct the person to another registered medical practitioner or an independent information and referral service.
Amendment 287, in clause 4, page 2, line 34, leave out from “practitioner” to end of line 36, and insert
“who is qualified to undertake such a preliminary discussion, and set out palliative medicine options to provide the patient with appropriate end of life care, including referring them to a palliative medicine expert.”
This amendment means that the medical practitioner who is unwilling to have an initial discussion with a person must, both refer them to another registered medical practitioner and set out the palliative care options including referring them to a specialist.
New clause 13—Independent information and referral service—
“(1) The Secretary of State must, by regulations, make provision to establish an independent information and referral service to—
(a) provide information to persons who are, or may be, eligible for assisted dying in accordance with this Act, and
(b) where requested, facilitate the person’s access to assisted dying in accordance with this Act.
(2) Regulations under subsection (1) are subject to the affirmative procedure.”
This new clause would require the Secretary of State to make provision for an independent information and referral service.
Danny Kruger
I rise to speak to this important group of amendments, which are all relevant to the duty to refer, whereby a doctor who does not want to advise a patient on assisted dying is obliged to send them to somebody who does. In different ways, we each seek to provide more protections for those medical professionals.
There are two main reasons why doctors may not want the obligation to refer that is in the Bill. The first is the central point that this is not a healthcare treatment, as is traditionally understood. Assisted dying does not address the condition or treat the illness; it treats only the symptoms, in the sense that it obliterates the existence of the patient. Like the advert for bleach says, it “kills all known germs”—it kills every experience that the patient has or could have. It is not part of the range of treatments that a doctor should have to offer, as clause 4(1) makes clear.
That point similarly relates to the question of referring to somebody who can offer that discussion. I suggest that the act of referring is an act of endorsement, just as offering the intervention itself is an act of endorsement. Dr Green from the BMA made it clear during oral evidence that the BMA does not like the word “refer”, as it implies assent to the option that is being offered. Indeed, the hon. Member for Spen Valley, in conversation with Dr Green during evidence, accepted that the word “refer” was “not…quite right”, as she put it, because it has the particular implication and expectation of a form of endorsement.
We have heard the same opinion from multiple witnesses in written and oral evidence to the Committee, particularly from Muslim medical professionals and their trade body. Those representing pharmacists also expressed significant concern that they might find themselves included in the definition of medical practitioner. The Association of Anaesthetists and the Royal College of Nursing were worried as well. A range of professional bodies and representative organisations share my concern that imposing a duty to refer—an obligation to assist somebody to have an assisted death by finding them a doctor who will conduct the preliminary discussion—is itself a breach of their rights of conscience.
The second reason follows from the first. Doctors may reasonably conclude that being in a position to help with assisted dying puts them in a totally different relationship with their patients. That is why the BMA is so unhappy and has asked for the requirement to be removed. It has an alternative, which some of these amendments also propose. It said:
“We urge the committee to remove the referral requirement and, instead, make it clear that the doctor’s duty is to direct patients to where they can obtain information”.
That is what amendment 341, in the name of my hon. Friend the Member for Sleaford and North Hykeham (Dr Johnson), would do. The BMA suggests that
“this should be an official body set up to provide individual information and advice to patients, to which patients could be referred or directed to, or could self-refer.”
My preference would be not to have any obligation on doctors to make any kind of referral, but I respect the aspiration of the amendment, which is to ensure that there is an independent body to give advice that patients can seek out themselves or that they can be advised of, so there is no expectation of a referral to a doctor who can facilitate the assisted death.
The Royal College of General Practitioners is also unhappy about the provision. It suggests that instead of expecting doctors
“to refer directly to a medical practitioner who is ‘willing and able to conduct that discussion’”—
as per the Bill—
“the doctor’s duty would be to direct patients to an official service where they can obtain objective and accurate information”.
I think we should pay heed to the advice of the professionals.
As ever, I would like to refer to the experience of foreign jurisdictions, because we are constantly told that this Bill is the safest in the world. None of the legislation in Australia or New Zealand, or the legislation currently going through in the Isle of Man, puts an obligation to refer on to doctors. Victoria and South Australia’s legislation says that a doctor has the right to refuse to participate in the request for assistance process and to give information about voluntary assisted dying, so there is no duty to refer—not even a duty to provide information.
I conclude with an observation that was submitted to us by Dr David Randall, a consultant nephrologist. It was very telling that he said in written evidence:
“I would not be willing to act in accordance with Section 4(5) of the Bill. I am a doctor in good standing with the GMC, and who has always striven to provide the highest standards of care to patients. Passage of this Bill would place my practice in direct opposition to the criminal law.”
He talks about “moral injury”, which is a very important principle. We have an obligation to protect the conscience and human rights of medical professionals.
We are still unclear whether this process will take place within the NHS or outside it. Nevertheless, the obligation to refer in the Bill would be a direct breach of doctors’ rights and would impose a moral injury on them. My preference is to remove clause 4(5) altogether, as that would be consistent with the Abortion Act 1967 and similar legislation on assisted dying in other countries. If we are not prepared to do that, we should at least restrict the obligation and provide more protections, as per the amendments in the names of other hon. Members.
Rebecca Paul
I rise to speak in support of amendment 341 in the name of my hon. Friend the Member for Sleaford and North Hykeham. It would provide that a registered medical practitioner who is unable or unwilling to have the preliminary discussion must provide information to the patient about where they can have that discussion, but that need not take the form of a referral.
One of the messages that we heard loud and clear in the evidence sessions was that medical practitioners do not wish to be put under an obligation to refer a patient to another registered medical practitioner by the Bill. “Referral” has a very specific meaning in medicine, and it is that word and the corresponding action required of it that many doctors have an issue with. A referral puts a patient on a pathway, whereas the provision of information merely indicates where such a pathway can be found. During oral evidence, Dr Green said:
“The word ‘referral’, to a doctor, means writing a letter or communicating with another doctor to see, but some doctors would find themselves not able to do that. For that reason, we believe that there should be an information service for the doctor to direct to.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 48, Q41.]
We are well aware that assisted dying is a complex issue and a matter of conscience for many. It is therefore important that we respect the personal views of medical practitioners. One of the points that I have made several times in these proceedings is that assisted dying affects not just the patient but other people participating and supporting. Some medical practitioners will be comfortable with it, but many others will not. It is therefore vital that we recognise their rights and needs, not just the patients’, when formulating this law. If for whatever reason a doctor does not want to refer a patient, they should not have to. Their legal responsibility should be limited to directing the patient to where they can find the relevant information that they need. Doctors should have no further obligation.
Kim Leadbeater
I thank the hon. Member for those important points. I reassure her, and possibly other Committee members, that I am minded to support amendment 341.
Lewis Atkinson (Sunderland Central) (Lab)
I will be brief. I am pleased to hear my hon. Friend the Member for Spen Valley confirm that she is minded to support amendment 341. It is incumbent on all of us, but perhaps particularly those in favour of the Bill, to place on record our appreciation and recognition of the fact that many people who work in our health services have strongly held religious beliefs, or beliefs of conscience—however they are motivated. As is the case for a range of other procedures and medical interventions, the law has to allow them scope to continue to practise. They make a valuable contribution to our health service and national life, and we should not do anything to impinge on that.
There is already strong guidance from the General Medical Council about personal belief, and that applies, as the hon. Member for Reigate mentioned, to the Abortion Act, as well as to the Human Fertilisation and Embryology Act 1990, the Female Genital Mutilation Act 2003 and other procedures. It is not for any of us to second-guess someone’s conscience.
Lewis Atkinson
I do not disagree with my hon. Friend. I gently say that the GMC guidance specifically references that Act, so that is what I was referring to.
I am pleased to see amendment 341, which I believe would bring the legislation into line with that GMC guidance, ensuring that removing the duty to refer would absolutely not be a licence for people to be left without access to care. The GMC is very clear, as the hon. Member for Reigate said, that people must be given sufficient information and be empowered to seek the options and information that they need. Therefore, I am pleased to support the amendment.
Daniel Francis
It is a pleasure to serve under your chairmanship, Mr Dowd. I note that my hon. Friend the Member for Spen Valley has said that she is minded to accept amendment 341. I will, however, still briefly speak to amendment 338 and new clause 13, which stand in my name.
The British Medical Association has said that it strongly urges MPs to support the amendments, which would remove the referral requirement in relation to preliminary discussions and establish an official body to provide factual information to patients about the range of options available to them. As the hon. Member for East Wiltshire mentioned, Dr Green, in his oral evidence, said:
“The provision of information would be very useful, because in a situation where a doctor was unwilling to have an initial discussion with the patient, it would provide a way for the patient to get that information that was in no way obstructive.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 46, Q37.]
He went on to say:
“I do not believe that it is ever appropriate for a doctor to recommend that a patient goes through an assisted dying process.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 48, Q40.]
He also said:
“The word “referral”, to a doctor, means writing a letter or communicating with another doctor to see, but some doctors would find themselves not able to do that. For that reason, we believe that there should be an information service for the doctor to direct to.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 48, Q41.]
The BMA’s position is that the proposal is analogous to doctors’ professional legal obligations regarding abortion, and consistent with the Bill’s inclusion in clause 23 of a right to refuse, for any reason, to carry out activities directly related to assisted dying. It has said:
“In tandem, we believe creating an official body to provide individual information and advice to patients, to which doctors could direct (rather than refer) patients, would ensure that the doctor’s views are respected, whilst also—crucially—ensuring that patients can easily access the information and support they need. Currently, whilst the Bill acknowledges the need for accurate, impartial information and advice for patients, it gives no indication of how this might be delivered—generic published information would not be sufficient. Patients would need individual advice, guidance, and support so that they can make informed decisions, and an independent information service could meet this need.”
As the hon. Member for Reigate mentioned, a member of the Royal College of General Practitioners also said:
“The BMA referred to the word “refer”—referring to a colleague, for those who did not want to do it. We agree that signposting is a better process.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 279, Q365.]
He went on to say:
“Similar to other services, such as termination of pregnancy, we think that the best option would probably be that the GP could signpost to an information service, such as something like what the BMA suggested the other day. They would not have to do anything more than that, and they would not withhold any option from the patient.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 273, Q354.]
Therefore, I commend amendment 338 and new clause 13 to the Committee.
Naz Shah
It is a pleasure to follow my hon. Friend the Member for Bexleyheath and Crayford. I rise to speak to amendment 287, tabled by my hon. Friend the Member for York Central. Clause 4(5) currently says:
“A registered medical practitioner who is unwilling or unable to conduct the preliminary discussion mentioned under subsection (3) must, if requested by the person to do so, refer them to another registered medical practitioner whom the first practitioner believes is willing and able to conduct that discussion.”
If this amendment was to be adopted, it would read:
“A registered medical practitioner who is unwilling or unable to conduct the preliminary discussion mentioned under subsection (3) must, if requested by the person to do so, refer them to another registered medical practitioner who is qualified to undertake such a preliminary discussion, and set out palliative medicine options to provide the patient with appropriate end of life care, including referring them to a palliative medicine expert.”
Put simply, the amendment would mean that if a doctor met with a patient with a severe illness who might die within six months, but the doctor was themselves unwilling to have an initial discussion on assisted dying, they would still have to refer the patient on to a doctor who was willing to have that discussion. The patient’s decision to explore assisted dying would not be obstructed; the main change would be that that doctor would now have to discuss palliative care options with the patient. That is surely a measure that would increase the patient’s welfare.
Let us think about the kind of patient who can apply for assisted dying. They must have a diagnosis of a serious illness and a prognosis that they are likely to die within six months. The Bill’s supporters have said many times that they are worried about any changes that will reduce the autonomy of people seeking assisted death. This amendment quite obviously does not in any way reduce people’s autonomy, nor does it in any way place an unreasonable burden upon doctors. If a patient has a diagnosis of a serious illness, and if they have themselves asked for a conversation on assisted dying, then it surely must be good practice for that doctor to discuss palliative care options.
It is also only good practice that one of those options would be for the doctor, if the patient wishes, to refer the patient to a palliative medicine specialist who is more able to talk about such options. That means that the amendment would not place any undue burden on either the doctor or the patient. The doctor ought to be offering such advice on palliative care. The patient may or may not decide to take the doctor’s advice on palliative care, but they have had it, and the patient may well benefit from having had advice on palliative care.
Given the conversations we had this morning, I can foretell one objection to this amendment: that since good doctors will do this anyway, it is unnecessary to have a provision on the face of the Bill to ensure it. This seems to me a very weak objection. Let us be honest, the doctors that we have in this country are of extremely high quality. They are dedicated, skilled and compassionate men and women. We are lucky to have them, but we cannot say that every doctor participating in all the processes that they currently undertake always follow best practice.
Similarly, we simply cannot say that in any assisted dying process doctors will always automatically follow best practice. People make mistakes. That includes people who are highly trained and extremely compassionate. I would be astonished if we could find a doctor who said they had always got everything right. As lawmakers, we have to guard against the fact that even some of our most admired professionals can and sometimes will make mistakes. One way that we will guard against that is to set out duties that they have to follow. This amendment does just that.
I hope that we will not hear the objection that we have heard to a great many good amendments: that it will somehow make the Bill more dangerous by adding complications. The amendment simply adds a small step, by placing a duty on a doctor to give palliative care advice to a patient with a diagnosis of serious illness. Surely the Bill cannot be so lacking in robustness that such a small change would make it dangerous.
In summary, the amendment is a sensible change. It would in no way block the ability of adults who meet the conditions set out by this Bill to explore assisted dying, nor would it place any burden at all upon doctors. It would simply place upon them a duty to follow what we can all surely agree is best practice, and it would greatly improve the early access to palliative care advice for patients with a diagnosis of serious illness. That would improve those patients’ chances of receiving good palliative care. I therefore urge hon. Members to support the amendment.
Stephen Kinnock
Amendment 412 would remove the duty in clause 4(5) on a registered medical practitioner who is unwilling or unable to conduct the preliminary discussion to, upon request, refer the person to another practitioner whom the first practitioner believes is willing and able to conduct that discussion. Guidance for medical professionals requires that, where a practitioner objects to performing a procedure, they must refer the patient to a practitioner who can meet their needs.
Amendment 341 removes the duty on a registered medical practitioner who is unwilling or unable to conduct the preliminary discussion to, upon request, refer the person to another registered medical practitioner whom they believe is willing and able to conduct that discussion. The amendment requires the registered medical practitioner who is unwilling or unable to conduct the preliminary discussion with the person to instead ensure that the person is directed to where they can obtain information and have the preliminary discussion.
New clause 13 would introduce a requirement for the Secretary of State to create, via regulations, an independent information and referral service for individuals who are, or may be, eligible under the Bill for assisted dying services. The accompanying amendment 338 would require a registered medical practitioner who is unwilling or unable to conduct the preliminary discussion to direct the person, upon that person’s request, to another registered medical practitioner or to the information and referral service, as set out in the new clause. The effect of this amendment is to remove the obligation in clause 4(5) for the registered medical practitioner to refer the person to another registered medical practitioner whom the first practitioner believes is willing and able to conduct the initial discussion. This amendment would make it more likely for a person seeking assistance to be referred to someone who is unwilling or unable to help. In addition, these amendments could carry an operational impact, as the new service would need to be designed and brought into existence.
Amendment 287 would mean that, if the first practitioner is unable or unwilling to conduct the preliminary discussion, they must, upon request, refer the person to a registered medical practitioner who is qualified to undertake the preliminary discussion. They must also set out palliative medicine options to provide the patient with appropriate end-of-life care, including referring the person to a palliative medicine expert. This amendment removes the duty in clause 4(5) to refer to a practitioner whom the first practitioner believes is willing and able to conduct the preliminary discussion.
As with previous amendments, this language could make it more likely for a person seeking assistance to be referred to someone who is unwilling or unable to help. It is not clear what
“qualified to undertake such a preliminary discussion”
is intended to mean. In addition, the term “palliative care expert” is not a defined term. Palliative medicine is a designated speciality of the General Medical Council and a doctor can apply to be entered on to the GMC specialist register for this speciality, provided they have the specialist medical qualification, training or experience. I hope these observations are helpful, and I thank the Committee for its attention.
Kim Leadbeater
I rise to speak to amendments 341, 338 and 412 together, and I welcome the debate on these important amendments. Choice is one of the key tenets of the Bill, primarily—but not exclusively—for terminally ill adults with a limited time to live. Choice is also very important for medical practitioners, and I am very respectful of, and acknowledge the importance of, conscientious objection for doctors. When it comes to assisted dying, I believe that they should also have choice. Indeed, the Bill is written so that they can choose not to participate in the process for any reason. That is the BMA’s view, and I agree with it.
The BMA has a position of neutrality on assisted dying, and there are a range of views within medical professions, as there are within all groups of people. That is why I have adopted its position of an opt-in model for the purposes of the Bill. Nevertheless, the process must remain patient focused at all times, and that means enabling them to have a discussion on such an important matter. It would not be right to rely on online advice or even the best-designed written materials. As we have already established, doctors are used to having sensitive and compassionate discussions with people who are terminally ill, and there can be no substitute for that. While a doctor may not wish to participate themselves, and I fully respect that, they still have a responsibility towards their patients, and that should include ensuring that they can speak to a properly qualified medical practitioner at such a difficult time.
I understand that the BMA and others would not be comfortable with the word “refer”, which I understand to have a special meaning within medical practice. The GMC guidelines use different language. They talk about where a doctor has a conscientious objection, in which case they are advised that they must make sure that arrangements are made for another suitably qualified colleague to take over their role. The BMA’s guidance says that patients must be able to see another doctor, as appropriate, and that it need not always be a formal procedure. It is not, however, sufficient to simply tell the patient to seek a view elsewhere—I agree completely.
The BMA supports amendment 341, which says that a doctor
“must ensure that the person is directed to where they can obtain information and have the preliminary discussion.”
I am therefore happy to support the amendment today and, if it were to need further adjustment, I am very happy to consider alternatives based on existing best practice. I would be very happy to meet with the hon. Member for Sleaford and North Hykeham, who is herself a doctor, to discuss her thoughts and draw on her considerable medical experience.
Danny Kruger
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 341, in clause 4, page 2, line 33, leave out from “subsection (3)” to the end of line 36 and insert
“is not required to refer the person to another medical practitioner but must ensure that the person is directed to where they can obtain information and have the preliminary discussion.”—(Rebecca Paul.)
This amendment would provide that a registered medical practitioner who is unable or unwilling to have the preliminary discussion with a person must provide information to the person about where they can have that discussion, but that this need not take the form of a referral.
Juliet Campbell
I beg to move amendment 125, in clause 4, page 2, line 35, leave out from start of line to end of line 36 and insert
“who is on the Register of Assisted Dying Medical Practitioners.”
This amendment provides that only a medical practitioner who is on the Register of Assisted Dying Medical Practitioners as provided for in NC7 would have a person referred to them.
The Chair
With this it will be convenient to discuss the following:
Amendment 126, in clause 23, page 15, line 5, at end insert—
“(1A) Medical practitioners who wish to provide assistance under this Act must “opt-in” to the Register of Assisted Dying Medical Practitioners under clause (Register of Assisted Dying Medical Practitioners).”
This amendment provides that any medical practitioner who wishes to provide assistance under the Act must have opted in to the Register of Medical practitioners.
New clause 7—Register of Assisted Dying Medical Practitioners—
“(1) The Secretary of State must, by regulation, establish a Register of Assisted Dying Medical Practitioners.
(2) A medical professional may only carry out the role of co-ordinating doctor or independent doctor under this Act may if they are listed on the Register of Assisted Dying Medical Practitioners.
(3) Initial discussions under section 4 may only take place with a registered medical practitioner if they are listed on the Register of Assisted Dying Medical Practitioners.
(4) Regulations made under subsection (1) must provide that the Register of Assisted Dying Medical Practitioners includes all registered practitioners other than those to whom the conditions in subsections (5) and (6) apply.
(5) The condition in this subsection is that only medical practitioners who have completed such training as required by the Secretary of State by regulation must be listed on the Register.
(6) The condition in this subsection is that only medical practitioners who wish to provide assistance under the Act must “opt in” to be listed on the Register.
(7) Regulations under subsection (1) and subsection (5) are subject to the affirmative procedure.
(8) Before making regulations under subsection (1) and subsection (5), the Secretary of State must consult such persons as they consider appropriate.
(9) Regulations under subsection (5) must be laid within six months of the passing of this Act.
(10) Regulations under subsection (1) must be laid within twelve months of the passing of this Act.”
This new clause requires the Secretary of State, by regulation, to create a Register of Assisted Dying Medical Practitioners. Only those who are on the register would be able to hold initial discussions or act as a co-ordinating or independent doctor, or hold initial discussions under section 4 of the Act. Only those who have had training as specified by the Secretary of State in regulations can be on the Register. Registered medical practitioners would only appear on the register if they had “opted in”.
Juliet Campbell
I will speak to amendments 125 and 126, which are linked to new clause 7. Given the discussion we have just had, and given that amendment 341 has been made, I will not push amendment 125 to a vote. Amendment 126, however, provides that any medical practitioner who wishes to provide assistance under the Bill must have opted in to a register or a service for practitioners who are comfortable with providing care related to assisted dying. In other conversations, my hon. Friend the Member for Spen Valley has said that the opt-in model is provided within the Bill. The challenge is that it is not explicit in the Bill, and I would like to see it so.
The BMA wrote in its evidence to the Committee:
“The Bill should be based on an ‘opt-in’ model, so that only those doctors who positively choose to participate are able to do so. Doctors who opt in to provide the service should also be able to choose which parts of the service they are willing to provide (e.g. assessing eligibility and/or prescribing for eligible patients)…An opt-in model is not explicit in the Bill…We urge the Committee to make it explicit in the Bill that this is an opt-in arrangement for doctors.”
The BMA says that it wants it explicit in the Bill, and at the moment it is not. The Royal College of General Practitioners aligned with this viewpoint, stating that an explicit opt-in system is completely necessary in the Bill. It is my hope that members of the Committee will support amendment 126, which I intend to push to a vote.
Kit Malthouse
I am afraid that I will disappoint the hon. Lady by rising to oppose her amendments, although I understand why she has tabled them.
It was clear from the BMA’s evidence that it opposes the creation of a list of registered providers, which the hon. Lady proposes to create with these amendments. The BMA’s opposition and my opposition are based on two or three—
Juliet Campbell
Based on the fact that we agreed on amendment 341, I am prepared not to press amendment 125 to a vote. It is amendment 126 that I am proposing.
Kit Malthouse
I understand that, but amendment 126 also refers to a register of appropriate medical practitioners being maintained. Of course, new clause 7 would similarly create such a list. We are debating all three proposals, so I wanted to explain why I oppose them, as indeed the BMA does.
As has been outlined in previous speeches, the Bill creates an opt-in model effectively, whereby people who want to be the co-ordinating doctor or indeed the second doctor have to opt in and be trained, and therefore become accredited, so by definition they would be approved for that service.
However, the Bill does not envisage that the initial conversation is necessarily with the co-ordinating doctor. There might well be other medical personnel or practitioners—we have talked a lot about semantics in this debate—who are presented with the situation where a desperate person, somebody who has been given some extremely bad news, wants to talk about their situation and what their options might be. We hope and believe that training will spread throughout the NHS to those who want it. Nevertheless, we have to leave open the option that someone may not be accredited and that they may need to pass on someone, by whatever means the Bill determines, to a doctor who is accredited, who can act as the co-ordinating doctor, who has had the appropriate training and opted in, and I am afraid the register would not allow for that.
The second thing that concerns me slightly, and which we need to avoid for the benefit of both the patient and the system, is any kind of “doctor shopping”—the notion that there is a list of doctors that I can shop around and choose from. I worry slightly about that.
My hope is that these types of conversations, which are necessarily private and sensitive, will take place in an environment of embrace and familiarity between doctor and patient. We have talked a bit about whether doctors have to refer or provide information—obviously, we have just accepted an amendment that seeks to set out how that will work. What I would oppose, for two reasons, is the creation of a list that people can move up and down on, and pick somebody they like the look of, or who they think might be handy for them. First, I am not sure that it would be entirely reputable; secondly, we have to remember who we are dealing with here. These are dying people who may not have long left to live—we are talking about six months as a minimum, but actually they might have only two or three months to go. We need to create a sense that this is something that will be provided to them in an environment that is familiar. They will not have to spend their time finding a doctor on a list, and their phone number, then ringing up their office and saying, “This is what I want to do. Can I make an appointment?” There is a privacy aspect to it.
My third objection is, to be honest, about privacy—not just that of the patient, but that of the doctor. The hon. Lady will know that unfortunately—I do not know whether she thinks it is unfortunate, but I do—there are some people who object so strongly, for example, to abortion that they are willing to go and protest outside clinics that provide that service. This House has legislated to balance the rights of those who want to avail themselves of that service and those who want to protest. That has been a source of conflict.
I am afraid that a public list of doctors who provide this service would raise questions about the privacy of doctors, about patient privacy and about access to that service. I am concerned about it from that point of view.
Kit Malthouse
We do not necessarily have specific registers. People are members of professional bodies, and within those professional bodies, people become accredited because of their training. As the Minister referred to earlier, there is no such thing as a list of palliative care specialists; it is not defined in that way. Creating a list in this way would present problems for the privacy of doctor and patient as they go about what I hope we all acknowledge is a very sensitive and private process at the very end of someone’s life. I will conclude at that point and say that, unfortunately, with great respect to the hon. Member for Broxtowe, I oppose these amendments.
Stephen Kinnock
As amendments 125 and 126 are consequential on new clause 7, I shall speak to them as a whole and not in turn. The purpose of the amendments appears to be twofold. First, they seek to restrict the role of medical practitioners who can hold an initial discussion to those who have completed training. That training would be specified by the Secretary of State in regulations and would make them eligible to be listed on the register of assisted dying medical practitioners.
Secondly, the amendments seek to apply the same principle to the co-ordinating or independent doctor. In addition, they would place a duty on the Secretary of State to make regulations that would create the register to sit outside or alongside the current system of registration of medical practitioners and set out the training requirements to be eligible to be listed on the register.
Both sets of regulations are to be subject to the affirmative procedure, and the Secretary of State must consult such persons as they consider appropriate before making them. The regulations making provision for the relevant training requirements must be laid within six months of the passing of this Act. The regulations establishing the register must be laid within 12 months of the passing of the Act.
Although the purpose of the amendments is clear, our assessment suggests that the drafting would not achieve the desired effect, because the register would include only those doctors who have not undertaken the specified training or who have opted out of the assisted dying service. Additionally, the suggested timeframe for laying regulations is unworkable, given the need to work with regulators and the proposed duty to consult. There are also significant operability concerns regarding the creation of a new register for a subset of registered medical practitioners.
I hope that the Committee has found those observations helpful. I thank Members for their attention.
The Chair
For clarity, amendment 125 is not being pressed to a Division, as I understand it. If the hon. Member for Broxtowe withdraws amendment 125, there will be an opportunity to vote on amendment 126 and new clause 7 later.
Juliet Campbell
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 288, in clause 4, page 2, line 36, at end insert—
“(6) All efforts to dissuade the person from ending their own life must be recorded in the clinical records and subsequently made available to the medical examiner.”—(Sean Woodcock.)
This amendment would require the coordinating doctor to record efforts to dissuade the person from taking their own life and subsequently make this available to the medical examiner.
Question put, That the amendment be made.
The Chair
I understand that the hon. Member for Reigate wishes to make a point on clause 4 stand part. I am minded to allow a debate on clause 4 stand part, but I remind hon. Members that I do not expect relitigating or rehashing. The debate will have a very narrow scope; it will not be an opportunity to rehash. The Question is simply whether the clause, as amended, should stand part of the Bill. With that caveat, I call Rebecca Paul.
Rebecca Paul
I very much appreciate the opportunity, Mr Dowd. I will attempt to be brief.
First, I welcome the acceptance of amendment 414, in the name of the hon. Member for Ipswich; of amendment 108, in the name of the hon. Member for East Thanet; of amendment 275, in the name of the hon. Member for Sunderland Central; and of amendment 341, in the name of my hon. Friend the Member for Sleaford and North Hykeham. The amendments strengthen the clause, so I thank Committee members for accepting them.
I have one pertinent point to put on the record about clause 4. The clause deals with what is and is not included in the initial discussion with registered medical practitioners, so the definition of assisted dying, as well as what it actually is, becomes relevant to understanding what guidance does and does not come into play. During these proceedings, there has been a tendency to speak as if assisted dying were another type of treatment or healthcare option being offered by medical practitioners, rather than a completely different and separate offering. It has been said many times that assisted dying should be treated in the same way as any other treatment and that the existing guidance from the GMC sets out appropriate best practice and should applicable and relied on. I have some concerns about that, which I wish to put on the record.
The legal norm, and GMC guidance, is that patients should be offered all reasonable medical treatments. A medical treatment can be defined as something that combats disease or disorder. It is fundamentally about healing, relief of symptoms, recovery and cure, so straightaway we have a conflict. Assisted dying ends the life of a person; it is not a treatment in the normal sense of the word. It is important that it is not a treatment, so that doctors are not obliged to offer it in the same way that they would offer another, more normal, medical treatment.
The Association for Palliative Medicine’s written evidence covers the point:
“A crucial question is whether or not assisted death by lethal medication is considered to be a medical treatment. Given that doctors are required to assess eligibility for, prescribe, and be present at the administration of the medication, AD might be considered to be a ‘medical treatment’. If this is the case then either assisted dying should be offered to all people meeting the eligibility criteria, or doctors need to behave differently towards this medical treatment than to all other treatments. Both of these approaches are contrary to all prior medical practice and public expectation, and laden with risks of unintended consequences.
The APM recommends that if AD is implemented in England & Wales it is done outside of ‘usual medical practice’ and is not regarded as medical treatment.”
This is because there are detrimental consequences from classifying assisted dying as treatment and relying on guidance. First, it could undermine the doctor-patient relationship by confusing the distinction between healing and ending life. Patients who are used to looking to their caregivers for help may worry that they will instead be put on a pathway to an assisted death. That could deter them from seeking medical help when they need it. Dr Jamilla Hussain spoke powerfully on that point, so I will not repeat it.
Secondly, the word “treatment” currently has largely positive connotations. If the word starts to be used for assisted dying, its meaning will change entirely. I wonder about the intersection with other pieces of guidance and law that refer to treatment, for example where treatment can legally be given without the consent of the patient. We all agree that assisted dying should never be administered without consent, but that is why we must be careful with our language and definitions. In certain situations, treatment can lawfully be given without consent, so it must follow that, to protect against the risk of unintended consequences, assisted dying is not deemed to be a treatment.
I ask the Minister’s view on that risk—I note that there is no reference in the Bill to assisted dying being a treatment, which is really good news—and his advice on how best to ensure that assisted dying is not and will never be considered a treatment as a consequence of the Bill or of any other statute or guidance. I also ask his view on the appropriateness of relying so heavily on GMC guidance for best practice, as I imagine that that guidance could change at any point without the consent of Parliament.
The Chair
At this point, I will not necessarily call Members, including the Minister, unless they particularly want to speak. If Members do wish to speak, will they please bob?
Danny Kruger
I think that we are just concluding one of the most important debates that the Committee will have: the debate on clause 4. I welcome the concession from the hon. Member for Spen Valley, particularly her commitment to modify the obligation to refer. That is welcome and will make the Bill a little safer.
In our debates on the clause, there has been clear confusion, as my hon. Friend the Member for Reigate has just mentioned, about the extent to which assisted dying is a healthcare treatment. That speaks to the question of whether there is an obligation on doctors to offer this treatment—as there should be, if it is a treatment that is one of a range of options for which the patient is eligible—or whether it is something that they are not obliged to offer. That confusion, which was present in the Committee’s exchanges, remains. I want to record in hon. Members’ memory the fact that that question was unresolved. In my view, that is extremely unsatisfactory.
Despite some welcome concessions, the Committee has just decided to reject a series of amendments that would have protected both doctors and patients. Most concerningly, we rejected an amendment to give children the right to be protected from the suggestion of an assisted death before they are even eligible for it.
I will conclude by referring to evidence, which I do not believe has been referred to so far in the debate, on the question of how assisted dying is received as a suggestion or offer, particularly by marginalised groups. I was very concerned by the oral evidence that we took from Professor Ahmedzai, who supports assisted dying. In written evidence, he has said explicitly that he especially wants the option to raise assisted dying with
“patients who are poorly educated, ill-informed or seem to be unaware of the option”.
He has explicitly required and requested the opportunity to put it to these disadvantaged, marginalised patients: “poorly-educated, ill-informed” people. Compassion in Dying, the sister organisation to Dignity in Dying, which supports the Bill, makes the same point: that marginalised people will need to be “directly prompted” with the offer.
I am afraid to say that, in rejecting the amendments, the Committee has endorsed the approach that people who are particularly marginalised and disadvantaged need to have this suggestion explicitly made to them. I am astonished that the Committee proposes to proceed on that basis, which completely misunderstands the dynamic of vulnerable people in the face of authority. I am very distressed to find that the Committee thinks that acceptable, and I am very sorry that apparently we are proceeding with the clause. I do not propose to put it to the vote, because the Committee’s will to proceed is fairly clear, but I hope that everybody is fully aware of what they are doing.
Naz Shah
I rise briefly to put on the record my disappointment. In our debates today on various amendments, we have discussed how some patients could see doctors’ language as a suggestion rather than an option. I make no apologies for the fact that I said that this could be the next Horizon scandal or the next infected blood scandal. I struggle with that.
A chap called Nick Wallis, who exposed the Horizon scandal, said something pertinent that I want to put on the record. He said that the difference is that there will not be anybody else left to campaign—
The Chair
Order. I am genuinely trying to provide as much latitude as possible, but the Question before the Committee is whether the clause stands part of the Bill.
The Chair
For Members’ benefit, as we are coming towards the end of the debate, let me say that I want people to be able to express their opinions as widely as possible, but it is also my responsibility as the Chair to ensure that that is contained within the parameters of our rules of debate.
Daniel Francis
Thank you for letting me speak, Mr Dowd. I will be brief.
As we reach the end of our debate on clause 4, I regret some of the decisions that we have made. I welcome the fact that in due course we will discuss amendment 418, in the name of my hon. Friend the Member for Spen Valley, which also relates to the preliminary conversation. My concern remains that it is “a” preliminary conversation, not, in my determination, “the” preliminary conversation. My amendments would have meant that “the” preliminary conversation could not be held before someone is 18. As I read amendment 418, someone could have preliminary conversations before they are 18; it is just that it will be recorded that there was a preliminary conversation after they turned 18. I regret that, as clause 4 now stands, the paperwork and initial discussion must be completed after someone is 18, but that will not necessarily apply to a preliminary conversation.
Equally, I have some regrets in relation to learning disability issues. I welcome the commitment from my hon. Friend the Member for Penistone and Stocksbridge on the amendment that she aims to bring forward, but I am conscious that it is not on the amendment paper for everybody to see. Just as she committed to work with me, I will continue to work with her on bringing it forward.
We have debated clause 4 long and hard, but I do believe that we have a clause that has loopholes in relation to people under 18 and to people with learning disabilities and autism. I will not press it to a Division, but I regret the fact that we have reached this place.
Question put and agreed to.
Clause 4, as amended, accordingly ordered to stand part of the Bill.
Clause 5
Initial request for assistance: first declaration
Sarah Olney (Richmond Park) (LD)
I beg to move amendment 271, in clause 5, page 3, line 5, at end insert—
“(1A) A person may not sign a first declaration within six months of being diagnosed with a condition which meets the requirements of section (2)(1)(a) unless they have received a psychosocial intervention in relation to their diagnosis with that condition.
(1B) The Secretary of State may, by regulations, create exceptions to the provisions of subsection (1A).
(1C) Regulations under subsection (1B) are subject to the affirmative procedure.”
This amendment would create a requirement that the person must have received a psychosocial intervention if a terminal diagnosis was received less than six months ago. The Secretary of State would be given a delegated power to create exceptions to such a requirement with regulations subject to the affirmative procedure.
The Chair
With this it will be convenient to discuss amendment 272, in clause 30, page 18, line 32, at end insert—
“(f) the form of the psychosocial intervention required under section 5(1A).”
This amendment is consequential on amendment 271, and would allow the Secretary of State to issue a code of practice in connection with the requirement for a psychosocial intervention.
Sarah Olney
I will not take up a huge amount of time, because a lot of what I wanted to say has been said in previous sittings, but I return to the issue of people who may request an assisted death who may also be suffering from a mental health condition. Amendment 271 was tabled by the right hon. Member for South West Wiltshire (Dr Murrison), and specifically concerns people who have received their terminal illness diagnosis less than six months ago and whose prognosis is less than 6 months in the future. The amendment specifically addresses the fact that the risk of suicide for people who are suffering from a terminal illness increases when the diagnosis has been made less than six months before.
Professor Louis Appleby is a key academic in the area of suicide prevention and advises the Government on it. Research by him and Professor Sleeman found:
“Diagnosis of severe conditions was associated with an increased risk of dying by suicide”.
In particular, they found:
“The increase in risk was more pronounced in the first six months after diagnosis or first treatment.”
They concluded that:
“A diagnosis of severe physical illness is associated with higher suicide risk. The interaction of physical and mental illness emphasises the importance of collaborative physical and mental health care in these patients.”
We talked at length in an earlier sitting about the risk that bringing in an assisted dying law would undermine suicide prevention strategies and efforts to address the issue of suicide. It is important that we return to this issue, and that we look seriously at the amendment in the name of the right hon. Member for South West Wiltshire, because it addresses the specific concern around those people who have had their diagnosis of terminal illness for less than six months and are therefore at a heightened risk of suicide.
NICE guidelines say that if someone is at risk of self-harm or suicide, a clinician must ensure that a psychosocial assessment has been carried out either by a mental health specialist or by a trained person in primary care. That should cover the person’s living arrangements, relationships, social support network, mental health disorders, risk factors, safeguarding concerns and so on. Professor Allan House told the Committee in oral evidence that this should be part of the assessment for assisted dying. He said the current assessment only answers the question:
“‘Is this person able to make decisions?’…it does not cover the psychological and social assessment.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 165, Q210.]
We have discussed at length the lack of the psychosocial assessment in relation to everybody who makes a request for an assisted death, but the amendment seeks to identify those who are at heightened risk of suicide—those who have received their diagnosis of terminal illness within the last six months—and specifically requires psychosocial assessments for those people.
Depression is common among those with terminal illness. Dr Price from the Royal College of Psychiatrists told the Committee that among
“people nearing the end of life…depression is…at around 20%—much more common than in the general population. We know that depression is strongly associated with a wish to hasten death”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 275, Q359.]
and that that wish is significantly alleviated if depression is treated, which is an extremely important point for the Committee to consider.
The Pathfinders Neuromuscular Alliance, which is a user-led charity for those with muscle-weakening conditions such as muscular dystrophy, have stated in written evidence:
“Pathfinders members have outlined how important it is to ensure psychological assessments are part of the process in order to ensure that the individual is in a position to make an informed decision. One member outlined:
‘I’ve been there, I’ve wanted to die, and I’ve been in the position where I would take that option if it was given to me, but looking back I can see I was depressed and now I’m so glad that I didn’t take that option.’”
Currently, the Bill does not require anyone to explore any psychosocial factors in respect of someone’s situation. Although the person can be referred to a psychiatrist under clause 9(3), that only covers a capacity assessment. Again, it only answers the question of whether the person is able to make decisions, and addresses none of the other relevant factors. In Oregon, there is more room to explore those factors—the doctor may refer a patient for counselling if the patient may be suffering from a psychiatric or psychological disorder or depression, causing impaired judgment.
On addressing the risk of social pressure and internalised feelings of burden, the British Geriatrics Society warned in its written evidence:
“There is an established link between frailty and feeling a burden to others, meaning many older people with treatable clinical frailty may choose an assisted death to avoid burdening their family, which we view as unacceptable.”
The Committee has already discussed at length the issue of older people or people with a terminal illness wishing to choose an assisted death motivated by the wish to save their family money. Dr Jerram, Dr Wagland and Dr Davis found that attitudes towards assisted dying changed over time. Patients closest to death were least likely to want assisted dying, suggesting that fear of suffering was the driving cause and that it may lessen as end of life care improves.
Psychosocial care is fundamental to good end-of-life care. Committee members and witnesses from other jurisdictions have said that palliative care and assisted dying can complement each other, and that assessment should be part of the picture. Glyn Berry told the Committee about the importance of
“the psychosocial aspect of palliative and end-of-life care”.––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 53, Q58.]
In its written evidence, the British Association of Social Workers said that
“good health care is not just about clinical interventions”,
but also about
“the wider social context in which a person lives their life…This is particularly pertinent with assisted dying.”
That needs to come before the first declaration, because once somebody has signed that declaration, they are already on a pathway. The amendment would provide an opportunity for people’s needs to be met at the first opportunity.
In conclusion, I emphasise the importance of a psychosocial intervention, which was stressed by a number of witnesses giving oral evidence to the Committee. We have discussed this issue at length. Earlier amendments have been voted down, but I stress the particular importance of the amendment 271 for that group of people who are in the first months of their diagnosis of a terminal illness and the raised level of risk of suicide that they present.
Sojan Joseph
As the hon. Member for Richmond Park says, we have repeatedly debated people’s mental health and how, once somebody has had a diagnosis of a terminal illness, it can have an impact on their decision making. Amendment 425, which we discussed earlier, is about having access to a multidisciplinary team. That team could have on it a social worker or a psychiatrist who would make a comprehensive assessment, which would cover amendment 271.
The amendment is an opportunity for the Committee to look into this issue, to make the Bill stronger, and to bring in safeguards for vulnerable people who may feel suicidal, and may feel a burden to society or to the healthcare system, and may choose this way. Those people who are vulnerable would have a psychosocial and mental health assessment, which would make the Bill stronger and safer.
Lewis Atkinson
I rise to speak against the amendment; there are significant issues with it both in practice and in principle. In terms of practice, I draw Members’ attention to the fact that the amendment does not mention a psychosocial assessment; it mentions mandating “a psychosocial intervention”. As defined by the World Health Organisation, a psychosocial intervention can be as brief as five minutes. I know that it is a brief intervention: I used to manage services delivering psychosocial interventions. Nowhere in the amendment is the type of psychosocial intervention or its purpose specified. If Members hope that the amendment will lead to a psychosocial assessment—
Sarah Olney
For clarity, if the amendment specified a psychosocial assessment, would the hon. Gentleman be minded to support it?
Lewis Atkinson
The holistic assessment is already set out elsewhere in the Bill, so the amendment is not required. Amendment 275, which we made to clause 4, requires “all appropriate” psychological support to have been discussed with an individual in advance of the first declaration. I clearly supported that amendment, and I am very grateful that the Committee did.
From a practical point of view, amendment 271 talks about six months from the point of diagnosis, but if I had prostate cancer, I might have had prostate cancer for absolutely years—so is it six months from the point of being diagnosed with prostate cancer or six months from the point of being told that that is terminal? There are a huge range of practical issues with the amendment as currently written, but there are also issues regarding the principle as well.
Sarah Olney
Would the hon. Gentleman not accept that a terminal illness in itself is a risk factor for an increased risk of suicide, and also that that risk is increased in the first six months following the diagnosis? That is the thinking behind the amendment.
Lewis Atkinson
I accept that that is a risk factor, but it is by no means determinative. Therefore, that risk factor has to be considered in the round with other risk factors such as levels of family and social support. As set out, the amendment does not distinguish between someone receiving a terminal diagnosis by themselves without any support network, and someone who expects to receive a terminal diagnosis at the end of a very long illness. As a point of principle I do not accept that we should mandate psychosocial interventions or that people must receive a level of healthcare in order for them to access other options related to their care—let alone the practicalities, which I have laid out, about when the provision would apply in relation to diagnosis and the fact that it is an intervention, which is in no way an assessment or any such thing.
Stephen Kinnock
I have made it clear throughout the debate that I am not offering a Government view on the merits of amendments. My remarks are focused much more on the legal and practical impacts of amendments, to assist Members in undertaking line-by-line scrutiny.
The amendments were tabled by the right hon. Member for South West Wiltshire. They would create a further eligibility requirement of the person seeking assistance under the Bill. Amendment 271 and 272 would limit those eligible to seek assistance to end their own life, in circumstances where their terminal diagnosis was received less than six months prior to the date on which the person signs the first declaration, to those who have received a psychosocial intervention. This would be subject to any exceptions provided for by the Secretary of State in regulations. Amendment 271 does not define what is meant by “received a psychosocial intervention” in relation to their diagnosis.
The term “intervention” is usually employed in the health service to mean the provision of support or treatment. This is different from, for example, an assessment that a clinician might undertake to assess whether an intervention may be required. While there is not a standard definition of psychosocial intervention, we understand it to mean psychosocial interventions such as cognitive behavioural therapy. The amendment could create uncertainty as to what type of treatment a person will need to undergo to satisfy the requirement. If a person who would otherwise seek assistance to end their own life under the Bill is unable to, or does not wish to, receive a psychosocial intervention, unless an exemption applies, they may need to delay starting the assisted dying process until at least six months has elapsed from their terminal diagnosis. That could be challenging in circumstances where the terminal diagnosis has a prognosis of six months or less.
The amendment would also introduce a requirement for people in certain contexts to undergo an intervention that could undermine a person’s autonomy in making their own treatment decisions. Were the amendment made, it would confer a regulation-making power on the Secretary of State to create exceptions to the proposed provisions on psychosocial intervention. Regulations made using this power would be subject to the affirmative procedure. It would also give the Secretary of State the power to issue a code of practice in connection with the form of the psychosocial intervention required.
If the Committee decides to accept the amendment, further consideration would be needed on Report to ensure that it is operationally deliverable, and my earlier comments about the definition of psychosocial intervention and other comments would have to be clarified. The Government would, of course, stand ready to assist were the amendment to pass.
As I said earlier, the Government have taken a neutral position on the substantive policy questions relevant to how the law in this area could be changed—as I have made clear, that is a matter for this Committee and for Parliament as a whole. However, I hope that these observations have been helpful, and thank the Committee for its attention.
Kim Leadbeater
I have nothing to add, other than to associate myself with the comments of my hon. Friend the Member for Sunderland Central and those of the Minister.
Question put, That the amendment be made.
Kim Leadbeater
I beg to move amendment 184, in clause 5, page 3, line 7, leave out “Schedule 1” and insert
“regulations made by the Secretary of State”.
This amendment provides that the form of a first declaration is to be set out in regulations (rather than in Schedule 1).
The Chair
With this it will be convenient to discuss the following:
Amendment 289, in clause 5, page 3, line 11, leave out “another person” and insert “another registered clinician”.
This amendment ensures that the second witness is a registered clinician.
Amendment 418, in clause 5, page 3, line 12, at end insert—
“(2A) Regulations under subsection (2)(a) must provide that the first declaration contains—
(a) the following information—
(i) the person’s full name and address;
(ii) the person’s NHS number;
(iii) contact details for the person’s GP practice;
(b) the following further declarations by the person—
(i) a declaration that they meet the initial conditions for eligibility (see subsection (2B));
(ii) a declaration that they have had a preliminary discussion with a registered medical practitioner, that they were aged 18 or over when they had that discussion, and that they understand the information referred to in section 4(4)(a) to (c) that was provided during that discussion;
section 4(4)(a)
(iii) a declaration that they are content to be assessed, for the purposes of this Act, by medical practitioners;
(iv) a declaration that they are making the first declaration voluntarily and have not been coerced or pressured by any other person into making it;
(v) a declaration that they understand that they may cancel the first declaration at any time.
(2B) In subsection (2A)(b)(i) ‘the initial conditions for eligibility’ are that the person making the declaration—
(a) is aged 18 or over,
(b) is ordinarily resident in England and Wales and has been so resident for at least 12 months, and
(c) is registered with a general medical practice in England or Wales.”
This amendment makes provision about the content of regulations under subsection (2)(a), which will set out the form of the first declaration.
Amendment 277, in clause 5, page 3, line 12, at end insert—
“(2A) A person may not make a first declaration under subsection (1) until 28 days have elapsed, beginning with the day they received a diagnosis of the terminal illness.”
This amendment would mean a person could not make the first declaration until 28 days from the day they received a diagnosis of the terminal illness.
Amendment 420, in clause 7, page 4, line 16, leave out subsection (3) and insert—
“(3) After carrying out the first assessment, the coordinating doctor must—
(a) make a report about the assessment (which must meet the requirements of regulations under subsection (4));
(b) give a copy of the report to—
(i) the person who was assessed (‘the assessed person’),
(ii) if the coordinating doctor is not a practitioner with the person’s GP practice, a registered medical practitioner with that practice, and
(iii) any other person specified in regulations made by the Secretary of State;
(c) if satisfied as to all of the matters mentioned in subsection (2)(a) to (g), refer the assessed person to another registered medical practitioner who meets the requirements of section 8(6) and is able and willing to carry out the second assessment (‘the independent doctor’).
(4) The Secretary of State must by regulations make provision about the content and form of the report.
(5) The regulations must provide that the report must—
(a) contain a statement indicating whether the coordinating doctor is satisfied as to all of the matters mentioned in subsection (2)(a) to (g);
(b) contain an explanation of why the coordinating doctor is, or (as the case may be) is not, so satisfied;
(c) contain a statement indicating whether the coordinating doctor is satisfied as to the following—
(i) that a record of the preliminary discussion has been included in the person’s medical records;
(ii) that the making of the first declaration has been recorded in the person’s medical records;
(iii) that the first declaration has not been cancelled;
(d) be signed and dated by the coordinating doctor.”
This amendment requires the coordinating doctor to make a report about the first assessment, and (if satisfied of the matters mentioned in subsection (2)) to refer the person to another practitioner for the second assessment.
Amendment 195, in clause 8, page 4, line 40, leave out “statement” and insert “report”.
This amendment is consequential on Amendment 420.
Amendment 209, in clause 16, page 11, line 8, leave out paragraphs (b) and (c) and insert—
“(b) a report about the first assessment of a person is made under section 7;
(c) a report about the second assessment of a person is made under section 8;”.
This amendment is consequential on Amendments 420 and 421.
Amendment 220, in clause 34, page 20, line 36, leave out paragraphs (a) and (b) and insert—
“(a) a report about the first assessment of a person does not contain a statement indicating that the coordinating doctor is satisfied as to all of the matters mentioned in section 7(2)(a) to (g);
(b) a report about the second assessment of a person does not contain a statement indicating that the independent doctor is satisfied as to all of the matters mentioned in section 8(2)(a) to (e);”
Amendment 421, in clause 8, page 5, line 4, leave out subsection (5) and insert—
“(5) After carrying out the second assessment, the independent doctor must—
(a) make a report about the assessment (which must meet the requirements of regulations under subsection (5A)), and
(b) give a copy of the report to—
(i) the person who was assessed,
(ii) the coordinating doctor,
(iii) if neither the independent doctor nor the coordinating doctor is a practitioner with the person’s GP practice, a registered medical practitioner with that practice, and
(iv) any other person specified in regulations made by the Secretary of State.
(5A) The Secretary of State must by regulations make provision about the content and form of the report.
(5B) The regulations must provide that the report must—
(a) contain a statement indicating whether the independent doctor is satisfied as to all of the matters mentioned in subsection (2)(a) to (e);
(b) contain an explanation of why the independent doctor is, or (as the case may be) is not, so satisfied;
(c) contain a statement indicating whether the independent doctor is satisfied as to the following—
(i) that a record of the preliminary discussion has been included in the person’s medical records;
(ii) that the person signed the first declaration;
(iii) that the making of the first declaration has been recorded in the person’s medical records;
(iv) that the first declaration has not been cancelled;
(d) be signed and dated by the independent doctor.”
This amendment provides that the independent doctor must make a report about the second assessment, and makes provision about the report.
Amendment 203, in clause 10, page 6, line 42, at end insert—
“(A1) This section applies where the independent doctor has—
(a) carried out the second assessment, and
(b) made a report stating that they are not satisfied as to all of the matters mentioned in section 8(2)(a) to (e).”
This amendment is consequential on Amendment 421.
Amendment 204, in clause 10, page 6, line 43, leave out from beginning to second “the” in line 44.
This amendment is consequential on Amendment 203.
Amendment 329, in clause 13, page 9, line 20, leave out paragraph (a).
This amendment removes the reference to Schedule 4 from the clause and is linked to Amendment 330.
Amendment 207, in clause 13, page 9, line 20, leave out “Schedule 4” and insert
“regulations made by the Secretary of State”.
This amendment provides that the form of a second declaration is to be set out in regulations (rather than in Schedule 4).
Amendment 330, in clause 13, page 9, line 26, at end insert—
“(3A) A second declaration must include the following information—
(a) the name and address of the person;
(b) the NHS number of the person;
(c) the contact details for the general medical practice at which the person is registered;
(d) a declaration by the person that they have made a first declaration under this Act;
(e) a declaration by the person that the assessing doctors have made the appropriate declarations under this Act together with the dates of those declarations;
(f) the details of the declaration made by the High Court or Court of Appeal;
(g) a declaration by the person they are eligible to end their life under this Act;
(h) a declaration by the person that they wish to be provided with assistance to end their own life under this Act;
(i) a declaration by the person that they understand that they must make this second declaration under the Act and that they do so voluntarily and have not been coerced or pressured by any other person into making it.
(j) a declaration that they understand that they can cancel their declaration at any time.
(k) any other information or signed declarations as may be set out by the Secretary of State in regulations.
(3B) Any regulations made under subsection (3A) are subject to the negative procedure.”
This amendment sets out the requirements for the second declaration by the person and is linked to Amendment 329.
Amendment 331, in clause 13, page 9, line 38, leave out paragraph (a).
This amendment removes the reference to Schedule 5 from the Bill.
Amendment 208, in clause 13, page 9, line 38, leave out “Schedule 5” and insert
“regulations made by the Secretary of State”.
This amendment provides that the form of a statement by the coordinating doctor following the making of the second declaration is to be set out in regulations (rather than in Schedule 5).
Amendment 332, in clause 13, page 9, line 41, at end insert—
“(6A) A statement made under subsection (6) must include the following information—
(a) a declaration by the coordinating doctor that the person is terminally ill within the meaning of this Act and the nature of the relevant illness, disease or medical condition,
(b) details of any relevant declaration made by the High Court or Court of Appeal;
(c) a declaration that the coordinating doctor is of the opinion that the person’s death is either likely or unlikely to occur before the end of the period of one month beginning with the day on which the declaration was made by the High Court or Court of Appeal under this Act;
(d) a declaration that the coordinating doctor is satisfied that the requirements of this Act regarding any period of reflection has been met;
(e) a declaration that the person requesting assistance under the Act has the capacity to do so, and that they have a clear, settled and informed wish to end their own life;
(f) a declaration that neither the first or second declarations by the person have been cancelled;
(g) any other information or signed declarations as may be set out by the Secretary of State in regulations.
(6B) Any regulations made under subsection (3A) are subject to the negative procedure.”
This amendment sets out the requirements for the second statement by the coordinating doctor and is linked to Amendment 331.
Amendment 333, in clause 21, page 14, line 9, leave out paragraph (a).
This amendment leaves out reference to Schedule 6 and is linked to Amendment 330.
Amendment 214, in clause 21, page 14, line 9, leave out “Schedule 6” and insert
“regulations made by the Secretary of State”.
This amendment provides that the form of a final statement is to be set out in regulations (rather than in Schedule 6).
Amendment 334, in clause 21, page 14, line 10, at end insert—
“(3A) The statement mentioned in subsection (2) must include—
(a) the contact details of the coordinating doctor;
(b) the name, NHS number and medical practice of the person given assistance under the Act;
(c) a declaration that the person was provided with assistance to end their own life in accordance with this Act;
(d) the date of any declarations made by the person under this Act;
(e) the date of any statements made by assessing medical practitioners under this Act;
(f) the details of the advanced and progressive condition the person had;
(g) the approved substance provided;
(h) the date and time of death;
(i) the time between use of the approved substance and death;
(j) any other information or signed declarations as may be set out by the Secretary of State in regulations.
(3B) Any regulations made under subsection (3A) are subject to the negative procedure.”
This amendment sets out the information that must be included in a final statement under this Act and is linked to Amendment 333.
Amendment 403, in schedule 1, page 25, line 25, at end insert—
“7. I have—
1. informed my family of my wish to be provided with assistance to end my life and taken their opinions into consideration
2. decided not to inform my family of my decision
3. no family to inform of my decision”.
Amendment 404, in schedule 4, page 29, line 7, at end insert—
“10. I have—
1. informed my family of my wish to be provided with assistance to end my life and taken their opinions into consideration
2. decided not to inform my family of my decision
3. no family to inform of my decision”.
Kim Leadbeater
I rise to support my amendments in this group, which seek to clarify the details that must be included, under regulations, in the first declaration, and the report that is consequent on that declaration. While I believe it was useful on Second Reading for MPs to be aware of the content of the form that the doctor should complete, the advice I have received—with which I agree—is that the details are more appropriately a matter for regulations. There is always a balance to be struck, but it would not be reasonable to expect the House to have to consider changes in primary legislation simply to alter the contents of a declaration, important though the details are.
The proposed changes go further in a way that I believe should greatly reassure the Committee. As we discussed this morning, they make it clear that a person must have been over the age of 18 when the first discussion under the Bill took place. They also require doctors not just to make formal declarations, but to produce reports covering the eligibility of the person to request assistance, the nature of the assessments they have made, their discussions with that person and, crucially, the person’s understanding of those discussions and of what the process entails. This will ensure that all the relevant discussions have been recorded and understood, and that an account of them has been recorded and will be available for future reference. For reporting purposes, if a person applying for assistance is found not to be eligible, that information will be recorded too. I hope the Committee will agree that further safeguards will be put in place as a result, without imposing additional stress or burdens on terminally ill patients during such a different period.
Kit Malthouse
I rise to speak in support of amendment 184 and to point out that I have now withdrawn amendments 329 to 334, so we will not vote on them later. Like the hon. Member for Spen Valley, I had thought that although it was sensible at Second Reading to have schedules to the Bill that laid out the forms, they were quite limited and strict in their form, so we needed more flexibility and the opportunity for the House, by regulation, to add content to the required forms in the future. I also wanted to insert a declaration by the person that they had had an initial conversation covering all the factors in the Bill and, critically, that they understood the information that had been presented to them. Amendment 184 would do exactly that.
For Members’ reference, I tabled similar amendments that would have done the same with the other schedules. Following conversations with the hon. Member for Spen Valley, I have now withdrawn them all and amalgamated them into amendments that would do the same as those that she has tabled, along with some additional bits and pieces. Amendment 184 is relatively self-explanatory.
I want to speak against amendment 277, which would impose a time limit of 28 days between diagnosis and the first declaration of a terminal illness. In a lot of circumstances, that would be a very difficult time delay for people to face. As the hon. Member for Bradford West, who tabled the amendment, will know, there are already periods of reflection in the Bill, although it also contains provision for a compressed time limit for those who face imminent death. Particularly for those who are unfortunately diagnosed with certain diseases, adding 28 days will insert a delay at a time when people who are facing what they do not want to face—a horrible death—need as much time as they can to get through the process. For example, if we take together all the factors for people who are sadly diagnosed with pancreatic cancer, the median survival is six to 12 months.
I do not know if the hon. Lady knows this, but pancreatic cancer is a particularly unpleasant cancer, not least because it does not exhibit symptoms in its early stages—people do not know they have it until quite late in its development. Treatment for it is not well advanced, and many people diagnosed with pancreatic cancer sometimes have only weeks to live. The idea that we should make them wait 28 days before they can even start the process seems impractical and, I am sorry to say, cruel to them in many ways. It is worth remembering that this is not a six-month “bang, I go and do it.” Most people who have a terminal illness will begin the application process at six months. Once they have the ability to ask for this service, they will then wait until they decide that their life has come to its end, at the time and place of their choosing. That might be at six months, or it might be at six days. The point of the Bill is to put the power to make that decision in their hands. Although the Bill has periods of reflection—it recognises that people need to sit and think about these things—imposing an absolute 28 days on everybody, without accounting for what stage they are at in their disease and how long they have to live, is not necessarily a sensible amendment, and I will oppose it from that point of view.
I understand the objective of my hon. Friend the Member for East Wiltshire in tabling amendments 403 and 404, which are about informing family. I would hope that those are the sorts of discussions that doctors would have—perhaps one of the doctors on the Committee can tell us. On whether we should put that on the face of the Bill, I have been persistent in trying to make sure that the conversation is not guarded. The amendments ask whether I have any family—I am not quite sure what “family” means. Does it mean my children? Maybe I do not want to tell my children. Does it mean my next of kin? I do not know. Is it distant relatives? Is it my whole family? There are problems with the definition of “family”.
While I will not support the amendment, I understand what my hon. Friend was trying to do. I would hope that those are the kinds of sensitive matters that a doctor would tease out of an individual as they look for the various items that we have put in the Bill to make sure that the person is making the decision on a sound basis as a settled view and has the capacity to do so.
Danny Kruger
I am grateful for the points made by my right hon. Friend the Member for North West Hampshire. I will speak briefly to amendments 403 and 404, which would create an expectation that a patient at least addresses the question of whether their family is aware of the decision they are making. In an amendment that has not been selected for debate today, I proposed simply to make that expectation clear.
My personal view is that I do not accept that this is healthcare, and therefore that a doctor would have an obligation to ensure that the next of kin of somebody to whom they are proposing to give lethal drugs is informed. However, in the spirit of the Bill, which is all about autonomy, and in an attempt to be constructive and put forward amendments that might be accepted, I accept that this is a decision for the individual in the same way as a healthcare decision, and that there is therefore no obligation under rules of patient confidentiality and the expectations around healthcare that the family should be informed.
Nevertheless, creating a moment at which the first doctor the patient speaks to gently encourages them to consider telling their family before taking the enormous step of signing the first declaration is appropriate. The amendment would give the patient three options: first, to confirm that they have informed their family of their wish to be provided with assistance to end their life.
The Chair
Order. I understand that the hon. Gentleman wants to touch on that amendment, but it has not been chosen today. He is talking about the declaration that the person has informed their family of their decision and taken their opinions into consideration. We are not dealing with that today.
Danny Kruger
Nevertheless, amendments 403 and 404 have been selected for debate, and it is those amendments that would effect that declaration in the Bill.
Danny Kruger
I am grateful to you, Mr Dowd, but I want to explain why these amendments are appropriate to the Bill.
The patient would have the opportunity to declare clearly that they do not have a family. I take the point made by my right hon. Friend the Member for North West Hampshire; it is not always clear what a family is. Nevertheless, if the patient wants to specify that they have no family or do not want to inform their family, the amendments would give them that right. I want to emphasise the importance of this consideration. I recognise that clause 9, which will come later in the process, includes consideration of the family. It states that, in so far as the assessing doctor considers it appropriate, they may advise the patient to inform their family, so there is recognition of that question a little later. My suggestion is that it should come earlier because it needs to take place before the first declaration is signed.
Crucially, we need to consider the wider impact of not considering or involving the family, particularly when children or dependants are involved. The Bill accepts the scenario where a family can find out after the fact—not through any formal notification, they just discover—that their loved one has ended their life with the help of doctors and the state. Families can be badly impacted by an assisted suicide: clinical grief disorders, depression and post-traumatic stress disorder are all harms that can follow from a family member taking an assisted death. It is unethical and irresponsible not to factor that in as we discuss and design the new law.
A parent may choose to end their life under the Bill, but is not required in any way to consider notifying their family. I wonder if the sponsor could clarify what would happen if they were the sole carer of a minor—would there be an obligation for anyone to inform the child that this was happening? One hopes that that would be an extremely rare scenario; nevertheless, it is possible under the Bill.
I want to mention two more groups quickly. In written evidence, a group of anorexia nervosa sufferers and carers said:
“The Bill does not anticipate situations where someone seeks to end their life as a result of cognitive symptoms inherent to the illness, as is the case with AN. For these patients, families would often be needed to advocate for their loved ones and their potential to recover…Without family involvement, patients may make decisions in isolation, potentially influenced by cognitive distortions or feelings of hopelessness inherent to the illness.”
I hope that we do not want to allow that scenario.
Finally, Dr Jamilla Hussain, who we have heard from a few times, said in written evidence that in her
“consultation with structurally disadvantaged ethnic minority groups”—
which include Pakistani, Roma and Black Caribbean community groups, they showed much concern about the exclusion of families. She said:
“it was emphasised that, traditionally, family and community members provide hope and strength when someone feels like life is too much. There is apprehension that such expressions of care and support could be reframed through a medical or legal lens as coercion.”
That is the saddest thing, which was hinted at quite strongly—in fact, stated explicitly—in some of the evidence sessions. It has been suggested that wanting a loved one to live is seen by doctors as a form of coercion that should be resisted; that trying to argue a loved one out of an assisted death is the coercion that we need to guard against and, on that basis, we should not be making any expectation that families are informed. What a tragic thing for us to say. To enable doctors to issue lethal drugs that kill people without their family knowing is an absolutely tragic thing. I beg the Committee to consider what on earth we are doing allowing that.
The Chair
I apologise to the Member, who was within his rights to speak to amendments 403 and 404.
Naz Shah
I rise to speak to my amendment 277, which would add a new subsection to clause 5. Like my amendment 276, it would alter the time that must elapse between a person receiving a diagnosis of severe illness and their discussion of assisted dying with a medical practitioner. To put the most important point first, the amendment aims to prevent people opting for assisted dying while they are suffering from the initial shock of having a serious illness diagnosed, by imposing a pause. There would have to be 28 days between when a person receives a diagnosis and prognosis of the illness that might end their life within six months, and when they could have their second consultation with a doctor about assisted dying.
The right hon. Member for North West Hampshire asked me whether I was aware of pancreatic cancer. A dear friend of mine, who was known as the “king of curry” in Bradford, told me only in June—the day I launched my election campaign, funnily enough—that he had been diagnosed with terminal cancer. In October, he was gone. I am overly familiar with pancreatic cancer and how fast he went down from being a healthy individual. He is greatly missed in Bradford.
The Committee has already rejected amendment 276. I ask all Members to think again and in particular to consider the evidence given to us by several distinguished doctors, including senior psychiatrists. What those doctors said to us, in both written and spoken evidence, was that immediately after someone receives a diagnosis of serious illness they often experience a major increase in depression and a desire to hasten death. For some patients, that desire to hasten death is what psychiatrists call an increase in suicidality; that is, the patient wants to actively do something to end their own life. For other patients, they do not have an active desire to carry out a physical act to end their life, but they do wish that their life would end sooner.
We can all empathise with people who have just received such a shocking diagnosis and prognosis. They have been told that they are likely to die soon. They may also either have been given information that makes them think their remaining months of life will be degrading and painful, or they may assume that they will be. That might well be how many of us would think if we had such devastating news. But the psychiatrists who gave evidence also said that depression and a desire for death are often not permanent conditions for people who have received such a diagnosis. When a patient gets treatment for their physical symptoms plus social care, and if necessary psychological treatment, the desire to hasten death will often fall.
Let me refer to the evidence of Dr Annabel Price, vice chair of the Royal College of Psychiatrists Liaison Faculty. I appreciate, Mr Dowd, that I am repeating some things I have mentioned previously, but when I spoke previously with reference to this evidence it was to other amendments. Hence, I am having to repeat it for the purpose of this amendment in particular. She said:
“There is a lot of research evidence around depression in people with palliative care needs and people nearing the end of life. We know that depression is common, and across a number of studies it is at around 20%—much more common than in the general population. We know that depression is strongly associated with a wish to hasten death, and that if depression is found and treated in that group of patients, there will be significant change in the wish to hasten death.”
She said that there were a number of factors besides depression that were associated with the wish to hasten death. In those who had received a diagnosis of serious illness, she told us:
“they include difficult symptom experience, poor functional status—needing a lot of help with things—and being socially isolated. Those are really key ones. They also include a sense of loss of dignity and feeling like a burden on others.”
For patients who have all those factors, she said:
“These things can all come together to make life feel very unbearable.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 275, Q359.]
Perhaps the most important part of Dr Price’s evidence was when she said what good medical and social care could do for people who felt their lives were unbearable. She said:
“The evidence that we have from research—this is in populations who would fulfil the criteria in terms of terminal illness—is that the prevalence of depression is around 20%. That is across a number of populations. It is associated with a wish to hasten death. Depression might impact upon that person’s decision making; I am not saying that it absolutely would, but it might. Also, treatment might change their view. We know that there is a strong association, for example, between pain and a wish to hasten death.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 281, Q369.]
Kit Malthouse
On a point of order, Mr Dowd. I am very sorry, but I just want your guidance. The hon. Lady is giving a speech which I am afraid we have covered before. We have had extensive debates on the impact of terminal diagnosis on people’s mental health and depression. I just want your guidance on what the Committee should do to resist the temptation to repeat debates that we have already had extensively, while we are considering these amendments.
The Chair
I thank the right hon. Gentleman for that point of order. I reiterate the point I have made on a number of occasions. I do not want to interrupt Members when they are making a point, because we are in a very sensitive situation—of that there is no doubt. I exhort Members, when they are discussing these things, to bear in mind those factors and those issues.
Naz Shah
Thank you, Mr Dowd. Before I carry on, may I just add to that? I did refer to that and I appreciate the right hon. Gentleman’s point of order, but these things speak to this particular amendment on 28 days. While they speak to many other debates, the Committee will have no doubt that there are many issues in which one piece of evidence crosses over many amendments. I assure the Committee that my intention is just to draw attention to the evidence that is related to the particular amendment that I am speaking to. I appreciate there that there is huge repetition—for want of a better word—but I feel that it is necessary, unless advised otherwise. I would be happy to take your guidance, Mr Dowd.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
I rise to set out why—reluctantly—I cannot support amendments 403 and 404, which have been tabled by my hon. Friend the Member for East Wiltshire. It is not because of the principle involved, because my hon. Friend was very clear in setting out the amendments. They would not provide for a prescriptive situation where an individual must tell their family. A range of options are set out, which I anticipate that any sensible and responsible doctor or clinician would take a patient through, encouraging them to involve their family in their decision making.
The issue that I have is around the legal clarity of the wording of the amendments, because under the English and Welsh legal system there is no statutory definition of “family”. There is a concept of family, but the concept of family to me may be very different from that of my neighbour, or from that of someone who lives in another city. For example, for some people stepbrothers, stepsisters and step-parents are very much part of their family; for others, they are not. For some people, unmarried couples with children are a family; for others, they are not. For some people, unmarried couples without children are a family; for others, they are not.
Danny Kruger
I take that point; families are difficult to define. Nevertheless, the Bill currently refers to the opportunity for a doctor, or the suggestion that a doctor,
“in so far as the assessing doctor considers it appropriate, advise the person to consider discussing the request with their next of kin and other persons they are close to.”
That is more precise. Would my hon. Friend accept an amendment along the lines that I have proposed, prior to the first declaration, but using the language that is currently in the Bill about
“their next of kin and other persons they are close to”?
Dr Shastri-Hurst
That would satisfy me. The reason I say that is because at the moment the wording is too broad and ill-defined. The question is: is this about the closeness and proximity of a relationship? The suggested wording that my hon. Friend just put forward would be much closer to that and much clearer, and more akin with the language of medical registration. When someone turns up in A&E, they are asked to give the name of their next of kin. That defines the closeness, the proximity and the permanency of that relationship.
If my hon. Friend was perhaps to consider withdrawing this amendment and tabling it again in an alternative form, or rewording it, that would certainly be something that I would be open to supporting. I have outlined why, as the amendments currently stand, I cannot support them.
Stephen Kinnock
Although it is for Parliament to decide whether to progress the Bill, this Government remain committed to ensuring the legal robustness and workability of all legislation. For that reason, the Government have worked closely with my hon. Friend the Member for Spen Valley, and some amendments have been mutually agreed upon by her and the Government: in this group, those are amendments 184, 418, 420, 195, 209, 220, 421, 203, 204, 207, 208 and 214.
This group of amendments replaces the forms set out in the schedules to the Bill, with the requirement for the forms to be set out in regulations by the Secretary of State. The amendments also make provision about the content and form of the first and second declarations, statements and reports.
Amendment 184 provides that the form of the first declaration must be set out in regulations made by the Secretary of State, as opposed to in schedule 1 as currently drafted. Operationally, using regulations will allow for consultation in relation to the form and content of the declaration. It will also provide flexibility to tailor or update the content of the declaration.
The effect of amendment 289 would be to limit those able to act as a second witness to a first declaration to registered clinicians, though that term is not defined in the amendment. In normal usage, “registered clinician” is broader than “registered medical practitioner”, so practically the amendment may lead to a wide range of registered healthcare professionals being able to act as a witness to a first declaration under the Bill.
Kit Malthouse
Just to be clear, a number of the amendments the Minister mentioned are in my name; I have now withdrawn them, albeit they would not have been voted on until later stages. I have withdrawn them in favour of the amendments tabled by the hon. Member for Spen Valley, which broadly do the same thing.
Stephen Kinnock
I thank the right hon. Gentleman for that clarification, because I had heard he was withdrawing but I thought perhaps he meant he would not push him amendments to a vote.
The Chair
Order. As far as I am aware, they are still on the amendment paper, but let us not get too technical at this particular stage.
Stephen Kinnock
I will therefore speak to amendment 208, which provides
“that the form of a statement by the coordinating doctor following the making of the second declaration is to be set out in regulations”
as opposed to the current position, where it is set out in schedule 5 of the Bill. This would have the effect of providing flexibility to update the content of the form of the statement if required later.
Amendment 214 provides
“that the form of a final statement is to be set out in regulations”
as opposed to in schedule 6, on the face of the Bill. This would have the effect of providing flexibility to update the content of the form if required later.
Amendment 404 would mean that, following court approval, the person seeking assistance must confirm, in a second declaration on the form set out in schedule 4, whether or not they have informed their family of their wish to be provided with assistance to end their own life. From a practical perspective, the amendment does not specify how a family would be defined. This may create uncertainty as to who the person would need to inform or how to determine that they have no family. It requires the form of the first declaration, set out in schedule 1, to capture whether a person seeking assistance to end their life has: informed their family of their wish to be provided with assistance to end their life and taken their family’s opinion into consideration; or decided not to inform their family of their decision; or has no family to inform of their decision. It is not clear how the term “family” would be defined. It is also worth noting that the amendment would conflict with amendment 184, which removes schedule 1 to the Bill. I hope those observations have been helpful to the Committee, and I thank Members for their attention.
Amendment 184 agreed to.
Amendment made: 418, in clause 5, page 3, line 12, at end insert—
“(2A) Regulations under subsection (2)(a) must provide that the first declaration contains—
(a) the following information—
(i) the person’s full name and address;
(ii) the person’s NHS number;
(iii) contact details for the person’s GP practice;
(b) the following further declarations by the person—
(i) a declaration that they meet the initial conditions for eligibility (see subsection (2B));
(ii) a declaration that they have had a preliminary discussion with a registered medical practitioner, that they were aged 18 or over when they had that discussion, and that they understand the information referred to in section 4(4)(a) to (c) that was provided during that discussion;
(iii) a declaration that they are content to be assessed, for the purposes of this Act, by medical practitioners;
(iv) a declaration that they are making the first declaration voluntarily and have not been coerced or pressured by any other person into making it;
(v) a declaration that they understand that they may cancel the first declaration at any time.
(2B) In subsection (2A)(b)(i) ‘the initial conditions for eligibility’ are that the person making the declaration—
(a) is aged 18 or over,
(b) is ordinarily resident in England and Wales and has been so resident for at least 12 months, and
(c) is registered with a general medical practice in England or Wales.” —(Kim Leadbeater.)
This amendment makes provision about the content of regulations under subsection (2)(a), which will set out the form of the first declaration.
Amendment proposed: 277, in clause 5, page 3, line 12, at end insert—
“(2A) A person may not make a first declaration under subsection (1) until 28 days have elapsed, beginning with the day they received a diagnosis of the terminal illness.”—(Naz Shah.)
This amendment would mean a person could not make the first declaration until 28 days from the day they received a diagnosis of the terminal illness.
Question put, That the amendment be made.