Terminally Ill Adults (End of Life) Bill

Baroness Levitt Excerpts

Friday 13th March 2026 Lords Chamber

[The Earl of Effingham (Con)]

My Lords, debate on this group, as with every group thus far in the Bill, has been extensive and in depth. We have heard from around 19 noble Lords on over 70 amendments. His Majesty’s loyal Opposition do not believe that it would be an effective use of your Lordships’ time for us to summarise the excellent contributions made across all Benches by many noble Lords. The relevant points have been highlighted. We welcome the opportunity to hear from the Minister and the noble and learned Lord, Lord Falconer, to understand their position on the proposals that we have all listened to with interest.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)]

My Lords, as with the groups on 27 February, I have structured this speech by grouping amendments by theme rather than taking them in order. This is in the interests of dealing with them as quickly as possible. If anything needs a longer explanation then I will take interventions, but it would be a more effective use of time if noble Lords wrote to me so that I could try to give a fuller and more detailed explanation.

I will begin with some observations about the legal implications of some of the amendments, then outline what the Government see as operational workability issues presented by some of the amendments. Finally, there will be some brief drafting considerations. I shall continue to limit my comments to amendments on which the Government have major legal, technical or operational workability concerns. I remain happy to write to any of your Lordships who have further questions relating to the workability of any amendment and will place a copy in the House Library.

The Government’s position remains that it is for Parliament to consider the policy. I will therefore not provide a government view on the merits of any proposed changes or make any observations in a personal capacity. When we were last in Committee, the noble Baroness, Lady Fox, raised how the Government plan to implement this Bill; she was not alone in doing so but she mentioned it specifically. We have not undertaken detailed implementation work as that would precede the parliamentary process. Should Parliament pass the Bill, the Government will undertake detailed work to develop a delivery model and on workforce planning, engaging with stakeholders and delivery partners, including the judiciary.

I turn first to legal considerations and specifically the compatibility of some of the amendments with the European Convention on Human Rights. The articles in question are Article 6 and Article 8. I turn first to Article 6 risk. There are four amendments in this group which, in the Government’s opinion, may interfere with a person’s right to a fair trial under Article 6. The first is Amendment 499, in the name of the noble Baroness, Lady Finlay of Llandaff, which would introduce a route to annulment of a certificate of eligibility where material circumstances have changed. However, it requires further detail about the process, so it is difficult for us properly to assess it at the moment.

The Government have concerns that Amendment 498, in the name of the noble Baroness, Lady Grey-Thompson, would prohibit any further referral to a panel where the commissioner has previously dismissed the individual’s application to review a panel decision. This has the potential to breach Article 6 in circumstances where a material change has subsequently arisen.

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[Baroness Coffey (Con)]

The Minister will know that I will discuss later why I do not think that the legislation should apply to Wales, and that the Welsh Senedd should make the decision. I tabled the amendment because, at the moment, the judge does not have to be a judge from this country. As far as I can tell from the Bill, it could be a judge from anywhere in the world who has served under the common-law process.

[Baroness Levitt (Lab)]

I am sure that the House will welcome that clarification from the noble Baroness, but it may be that there is a drafting issue, because the amendment refers to England rather than England and Wales, and there is no such creature as a member of the senior judiciary from England only.

Finally in this group, the Government have concerns that Amendment 929B, also in the name of the noble Baroness, may have an impact on the operability of an assisted dying service by placing apparently arbitrary limits on the resourcing of the panel when the demands of that service are, as yet, unknown.

I turn now to groups of amendments dealing with assisted dying review panel proceedings and powers. Amendment 463, in the name of the noble Lord, Lord Murray, would require the commissioner to assess the procedure adopted by every individual assisted dying review panel. That would remove any flexibility for the panel to deviate from procedure, should it seem appropriate to do so for either inquisitive or compassionate reasons associated with the case.

Amendment 464, also in the name of the noble Lord, Lord Murray, would give the panel the same powers, privileges and authority as the High Court. The powers of a High Court judge are significant and wide-ranging. They are set out across statute, court rules and the inherent jurisdiction of the court. The Government think that some of them, such as the power to imprison for contempt, are not the sorts of powers that your Lordships may feel are appropriate for such a panel. Without more clarity and detail, it is impossible to assess whether this kind of extension would be appropriate, and it would be extremely difficult to apply in practice. In the view of the Government, the amendment ought to set out which powers, privileges and authorities it is intended to capture.

Regarding Amendments 495B and 941A, both in the name of the noble Baroness, Lady Maclean of Redditch, your Lordships may wish to note that requiring the panel to identify and provide a report on unmet social or palliative care needs is not within its remit, nor would the panel necessarily have the knowledge of local service provision or the expertise to make personalised recommendations on social and palliative care. Such a report therefore risks containing inaccurate or incomplete advice.

I turn to panel referrals and capacity. Amendment 445, also in the name of the noble Baroness, Lady Maclean of Redditch, seeks to ensure that the panel is independently satisfied that the person seeking assistance has continuously had capacity from the point of their first declaration. Your Lordships may wish to note that the amendment is likely to cause major workability concerns. It would be extremely difficult for the panel to determine whether the person had capacity throughout this period, rather than just at the point at which the capacity assessment is made. Moreover, it might result in people being excluded because of temporary, brief periods of incapacity. For example, a person would not have had continuous capacity if they had had an operation under general anaesthetic during this period.

On panel decisions, Amendment 496, in the name of the noble Baroness, Lady Grey-Thompson, would mean that a person cannot apply for their case to be reconsidered on the basis that the decision was irrational. That would be unusual, as the elements of the existing test under Clause 18 reflect the three primary grounds applicable in judicial review proceedings and are part of a recognised set of legal principles applicable to decision-making. If a person wished to challenge a first panel’s decision for being irrational, which is a term of art in legal proceedings, they would still be able to do so via judicial review. That would create an inconsistency in forum that would need to be justified.

Amendment 496A, in the name of the noble Lord, Lord Weir, would add failure adequately to consider evidence relating to disability-related vulnerabilities to the grounds under which, where a panel declines to grant a certificate of eligibility, the commissioner could refer a person’s case to a second panel. Your Lordships may wish to note that failure properly to consider relevant information would already be captured by the irrationality ground for reconsideration set down in Clause 18(2)(b). Similarly, a decision that was inconsistent with equality legislation already engages the first ground of challenge in Clause 18(2)(a), because it would contain an error of law.

I have taken rather longer over this than I had intended. Noble Lords will be delighted to know that I am nearly there. The final part is on drafting considerations and Amendment 490. If your Lordships support any of these amendments, the Government may need to revisit the drafting to ensure clarity and coherence with the statute book. To give one example, Amendment 490, in the name of the noble Baroness, Lady Grey-Thompson, contains some ambiguous terms that might need tightening up. In the interests of time, I will not go into more detail, but I am happy to discuss further with the noble Baroness in due course. Having taken rather longer than I had hoped, that is it from the Government on this group.

[Baroness Coffey (Con)]

Actually, I have further questions of clarity from the Government’s response. In the amendment that I tabled about His Majesty’s Counsel, the Minister mentioned workability concerns about there not being enough people. I would like to understand whether the government proposal suggested that amendment to the Bill’s sponsor. Do the Government have any consideration about alternatives I proposed during debate, where, instead of King’s Counsel, we could have people such as deputy court judges or other sorts of judges? In the two weeks since we last discussed this matter, have the Government considered that?

[Baroness Levitt (Lab)]

As a general point, the Government merely point out workability concerns and do not suggest ways in which they might be remedied. That would be a matter for the Member who tabled the amendment to discuss with the sponsor of the Bill. So no, we have not come up with any proposals because—I am sure that the noble Baroness is sick of me saying this—we are neutral on this. We just point out where we can see difficulties with the amendment as drafted.

[Baroness Coffey (Con)]

Did the Government propose, on workability grounds, the suggestion in Schedule 2 that King’s Counsel should be included? It may be that the noble and learned Lord, Lord Falconer, can answer that, but a constant theme has been trying to understand what the Government have suggested in their private workings with the sponsor of the Bill, which they will not share with the House. Did they suggest this as a way to make it workable? That is what I am trying to get to the bottom of.

[Baroness Levitt (Lab)]

I am going to have to write to the noble Baroness about this, because I do not think I can answer it. My noble friend the sponsor will deal with the question of panels. If this question is actually about the assistance given by the Government, I refer to my previous answers, but I will write to the noble Baroness on her specific point.

[Lord Falconer of Thoroton (Lab)]

My Lords, in the course of this debate, the noble Baroness, Lady Coffey, referred movingly to the death of her parents. I pay tribute to her courage and her contribution.

I will deal with the groups of amendments in themes. First, I will deal with appointments to the panels. The noble Lord, Lord Murray of Blidworth, through his Amendment 925A, said that there should be a proper appointments procedure. I agree with him that there should be a proper appointments procedure. The Bill currently places the obligation of the appointment of panel members on the voluntary assisted dying commissioner. That is in Clause 4(4)(b) and in paragraph 2 of Schedule 2. I believe that that is adequate. The voluntary assisted dying commissioner must have a proper process. I have faith that he will do that, and the law will require him to do so.

The noble Lord, Lord Murray, also proposes that the Judicial Appointments Commission make the legal appointments. Remember that one of each of the panels would have to be either a judge or King’s Counsel. I am not in favour of that. My noble friend Lady Levitt indicated that there were problems with that, but I have a more principled objection: we are dealing here not with judges but with members of a particular panel, so I do not think that this is either appropriate or necessary.