Terminally Ill Adults (End of Life) Bill

Baroness Merron Excerpts

Friday 12th December 2025 Lords Chamber

[Lord Kamall (Con)]

As I set out last week and will repeat if noble Lords will forgive me, I completely agree with what the Government Chief Whip said about noble Lords ensuring that they speak to the amendments and do not give Second Reading speeches, but, at the same time, I think it is important that all noble Lords who want to speak to an amendment are given the opportunity to do so.

I thank the noble Baroness, Lady Finlay of Llandaff, for her amendment in this group. It seeks to ensure that someone who currently is or has recently been deprived of their liberty will not be eligible under the Act. This amendment refers to the Mental Capacity Act 2005, which is also the Act underpinning capacity for the purposes of this Bill. I appreciate the underlying logic behind the amendment, which has opened up a valuable discussion of who exactly should have access to assisted dying services. I am sure that all noble Lords would agree, whatever their position, that there should be robust provisions and safeguards in the Bill and that it should be available only to those who are suffering from terminal illnesses who are of sound mind, so that we do not inadvertently open it up to those with issues related to their capacity.

I am also grateful to the noble Baroness, Lady Berger, for her contribution in place of the noble Baroness, Lady Keeley. It is very important that, given the backlog in the system, not just those who have DoLS but those who have made an application for DoLS are deemed not to have capacity when seeking to end their lives. It would be very interesting to hear the Government’s perspective on this and that of the noble and learned Lord.

These questions all fundamentally ask whether the Bill is right to use the Mental Capacity Act 2005 as the basis for defining capacity. I am very grateful to the noble and learned Lord, Lord Falconer of Thoroton, for offering to meet those who have tabled these amendments. That is very constructive and helpful and should be acknowledged. I also look forward to hearing the noble and learned Lord’s responses to some of the issues that have been raised.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I am grateful to noble Lords for their contributions on this group. To echo the comments of my noble friend the Chief Whip, the Government remain neutral on the principle of assisted dying and on the passage of this Bill. Whether the law in this area should change is a matter for Parliament. As before, any comments that I make will focus on amendments where the Government have major legal, technical or operational workability concerns.

This group relates to deprivation of liberty and eligibility for seeking an assisted death. I thank the noble Baroness, Lady Finlay, and my noble friend Baroness Keeley for tabling the amendments in this group. Amendments 16 and 114, tabled by the noble Baroness, Lady Finlay, seek to prevent individuals who have been deprived of their liberty within the last 12 months under the Mental Capacity Act being eligible for an assisted death. In the case of Amendments 16A and 114A, tabled by my noble friend Lady Keeley, someone would be ineligible as a result of an application for deprivation of liberty having been made, irrespective of the outcome of that application.

Noble Lords may wish to consider that the amendments would introduce a departure from the Mental Capacity Act framework by linking a lack of capacity in one area—capacity to consent to care and treatment arrangements that amount to confinement—to lack of capacity in another area, that being capacity to make the decision to end one’s life. Amendments 16A and 114A go further and would make a person ineligible on the basis that only an application for deprivation of liberty had been made. This may result in a situation where the application was unwarranted, but that person would still be ineligible for assisted death.

Regarding the European Convention on Human Rights—

[Lord Scriven (LD)]

I want to ask what the Government’s view is. This actually changes the whole basis of the Mental Capacity Act. The Mental Capacity Act concerns existing capacity. These amendments move into retrospective or future capacity, which is completely incompatible with the Mental Capacity Act. Do the Government have any views about that significant change of capacity and the test of the capacity of an individual?

[Baroness Merron (Lab)]

I hope that the comments I have made already indicate where we are concerned, rather than going into further areas, but I would be very happy to look at the noble Lord’s point.

I also wish to raise points relating to the European Convention on Human Rights. As before, these are potential risks that I am raising to inform noble Lords’ decision-making, but I wish to be clear that the underlying policies are rightly a matter for Parliament. Noble Lords may wish to note the requirement for an objective, proportionate and reasonable justification to treat those who have previously lacked capacity in a different context differently from others who have not. Noble Lords may also wish to consider whether there is justification for different treatment where an application for deprivation of liberty has been made, but not necessarily completed or approved. In the absence of justifications that are sufficient to persuade a court, the amendments may conflict with ECHR obligations, specifically Article 14 on the prohibition of discrimination, when read with Article 8.

I confirm to noble Lords that, if a court finds that primary legislation is incompatible, it may make a declaration of incompatibility. This does not invalidate legislation. As is usual, the Government would then consider—

[Lord Harper (Con)]

I am grateful to the Minister for making that point, which I think was the question I asked last time. This is very relevant to the question that I posed to the noble and learned Lord, Lord Falconer. It is very important that we put protections in the legislation, so that they are not subsequently unpicked, whether by domestic courts or the European Court of Human Rights. If they are only in a code of practice or guidance, it would not provide protection against those legal challenges. Will the Minister just confirm that what I have said is correct?

[Baroness Merron (Lab)]

I am sure that my noble and learned friend will comment on the noble Lord’s points, but the point I wished to make, which might be helpful, is that it is usual practice for the Government to consider and address these matters. Noble Lords are aware that there is a range of ways of dealing with that: by amending primary legislation, through a remedial order or by a declaration of incompatibility. That is the usual practice.

[Lord Pannick (CB)]

On human rights law, does the Minister agree that, if Parliament forms a considered judgment that there is a basis for a differentiation in this context or any other, it is most unlikely that a court is going to intervene on the sensitive subjects of social policy that we are concerned with here?

[Baroness Merron (Lab)]

I hear the noble Lord, but my role today, as I am sure he understands, is to advise your Lordships on the risks as we see them and for noble Lords to decide how they wish to interpret them with regard to these amendments. But I am grateful for the point that the noble Lord makes.

Noble Lords may wish to note that these amendments would lead to different treatments for those detained under the Mental Health Act from those detained under the Mental Capacity Act. Only those detained under the Mental Capacity Act would be excluded from assisted dying. Noble Lords may wish to consider whether this is justifiable, given that the criteria for detention under both Acts are similar. The decision on which Act to use is largely a matter of professional discretion. Operationally, these amendments could also create confusion for practitioners, because they depart from the principle that capacity assessments are decision- and time-specific, so additional guidance and training would be needed.

Finally, as noble Lords will be aware, these amendments have not had technical drafting support from officials, which means that they may not be fully workable, effective or enforceable in the way that they are currently drafted. However, the issues raised are rightly a matter for noble Lords to consider and decide.

[Baroness Berridge (Con)]

I have heard this outline of the Government’s position. Am I correct in understanding that the Government have no position on ensuring that the Bill is safe for vulnerable groups of people?

[Baroness Merron (Lab)]

I would not make that assumption.

[Lord Kamall (Con)]

The question that a number of noble Lords are concerned about, when discussing this amendment, is that the Mental Capacity Act was passed in 2005. Of course, the guidance has been updated, but it might be helpful to those in the Committee who are concerned that this Act is 20 years out of date to talk about any guidance that has been updated, so that it is not seen as out of date—if that makes sense. This is just to clarify that we are not dealing with an Act that was set in stone in 2005, as things have changed since then.

[Baroness Merron (Lab)]

I am grateful to the noble Lord and feel that this would probably be a very appropriate point to move on to my noble and learned friend.

[Lord Falconer of Thoroton (Lab)]

I will just pick up what the noble Lord, Lord Kamall, is saying. I think he is saying that the Act has been updated over the years and that people have taken account of improvements. He is absolutely right; from my own knowledge of the working of the Act, he makes an absolutely valid point.

I repeat what I said earlier—that we need to discuss this. I will deal with the interventions after I have given my response.

First, the noble Baroness, Lady O’Loan, is right in identifying the risks that arise. That is why I think that the noble Baroness, Lady Finlay, is right that we need to build in some form of enhanced protection.

As far as the intervention from the noble Baroness, Lady Berridge, is concerned, this amendment is limited to DoLS under the Mental Capacity Act; it does not include any exercise of the inherent jurisdiction of the courts on somebody whose liberty has been taken away. The noble Baroness is very welcome to come and discuss that with us, and I will give her notice of any meeting that we have.

As far as the noble Lord, Lord Harper, is concerned, how one provides effective protection depends first on the discussions that take place. I would envisage tabling an amendment on this or maybe agreeing that somebody else tables one. I cannot tell noble Lords the extent to which it will involve the Minister having powers, but it is something that we will discuss.

The points that the Minister, my noble friend Lady Merron, made about discrimination relate to people who have had a deprivation of liberty order in the past, or even those who have one now, who will be excluded altogether from the right to assisted dying. The nature of the Mental Capacity Act is that this should be done on a case-by-case basis. I am proposing that we discuss how to provide enhanced protection rather than excluding.

In the light of what I have said, I hope that the noble Baroness, Lady Finlay, and the noble Baroness, Baroness Berger, on behalf of the noble Baroness, Lady Keeley, feel able to withdraw their amendments.

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[Earl Howe (Con)]

My Lords, this group of amendments covers two distinct but connected questions. The first question, posed by Amendment 17, is, in my judgment, a very helpful one, because the answer will clarify the role—or lack of role—played by a person’s GP in the process being pursued by that person in seeking an assisted death. It seems to me, from reading the Bill’s provisions, that the involvement of a person’s GP in that process, although very likely, is not legally necessary provided that the patient fulfils all the conditions set out in Clause 1(1). Clarification from the noble and learned Lord would be very helpful.

The second question, posed by my noble friend Lady Fraser’s Amendment 62, is also one that I hope can be answered very simply by the noble and learned Lord. Am I correct that it is implicit in Clause 5 that the preliminary discussion between the patient and the registered medical practitioner need not involve a doctor physically situated in England and Wales and need not be face to face? Equally, am I correct that it is unnecessary to state in Clause 1(3)(b) that the steps set out in Clauses 8 and 19 must be taken

“by persons in England or Wales”,

because Clauses 8 and 19 already explicitly provide for this?

[Baroness Merron (Lab)]

My Lords, I thank noble Lords for their contributions to this debate. As I have said, I will keep my comments limited to the amendments on which the Government have major legal, technical or operational workability concerns.

On Amendments 17 and 309A, in the name of the noble Lord, Lord Beith, and introduced by the noble Baroness, Lady Fraser, Amendment 17 is a probing amendment that seeks to establish whether people who are registered with a GP in Scotland but live in England would be excluded from eligibility for an assisted death under the Bill. Noble Lords may wish to note that Amendment 17 would have limited effect as it amends only Clause 1, which is largely descriptive. Without further amendments to Clauses 10 and 17, which contain duties to assess eligibility criteria, Amendment 17 would not impact those criteria and would introduce conflicting provisions.

Amendment 309A would amend the corresponding eligibility criteria in Clause 10 to include a person registered as a patient with a general medical practice in England, Wales or Scotland. It would not amend Clause 17, which contains the assessment by the panel. Therefore, Amendments 17 and 309A would require further consequential amendments to ensure that the Bill is coherent. This would include amendments to ensure that data recording obligations and the associated criminal offences apply to Scottish GPs. These consequential amendments would likely require consultation with the Scottish Government, as the noble Baroness, Lady Fraser, referred to, in line with the guidance for Private Members’ Bills.

I thank the noble Baroness, Lady Fraser, for tabling Amendment 62. The purpose of this amendment is to establish why the Bill requires only the actions set out in Clauses 10 and 11 to be undertaken by people in England or Wales, and not the preliminary discussion under Clause 5. Our understanding is that the reference to the preliminary discussion in Clause 5 is not mentioned in Clause 1(3) because Clause 5(3) already requires that a person wanting to have a preliminary discussion must be in England and Wales. Amendment 62 would require steps under Clauses 8 and 19 to be taken by persons in England or Wales. As drafted, the Bill requires that most of the steps in Clauses 8, 10, 11 and 19 will already have to take place in England and Wales.

In addition, Amendment 62 would have the effect that, when the Secretary of State makes regulations under Clause 19, the Secretary of State must be in England and Wales at the moment they sign the regulations. This could lead to the regulations being improperly made and challenged should the Secretary of State not physically be in England or Wales at the time of signing the regulations. This raises a practical issue of workability, as I am sure the noble Baroness understands.

On the points raised by the noble Baroness, Lady Fraser, and the noble Lord, Lord Shinkwin, relating to Scotland and guidance that the Government have provided to the sponsor, as I am sure noble Lords will understand, and I have reiterated, we are providing technical and workability support to the sponsor on devolution issues, including those that have been raised. This is an evolving situation that will continue throughout the passage of the Bill.

[Lord Falconer of Thoroton (Lab)]

I am grateful to everybody who has taken part in this short debate. I pay particular tribute to the noble Baroness, Lady Fraser of Craigmaddie, who discussed the issues with me yesterday and was incredibly clear in the way that she raised them today. She also raised the concerns of the noble Lord, Lord Beith.

I will deal with three issues: first, where the GP practice has to be to satisfy the eligibility requirements; secondly, whether the Clause 5 conversation has to take place with an England and Wales GP, or whether it can take place with a Scottish GP; and thirdly, how we will deal with the clashes between Scotland and England. I am aware, because the noble Baroness, Lady Fraser of Craigmaddie, told me about it, of the deposit return scheme and how that went wrong. I am conscious of that as an issue.

First, the noble Lord, Lord Beith, asks with his amendment whether the GP to whom you have to be a member of the practice can be in Scotland. The answer is no under the Bill at the moment. The Bill is clear that you have to be in a GP’s practice in England or Wales. Everybody has said to me that it is perfectly normal for a person living in England in the border areas to have a GP in Scotland, and asked why cannot we change the Bill to say that your GP could be in Scotland, because that reflects how people actually live.

I am sympathetic to that, but the noble Baroness, Lady Fraser of Craigmaddie, legitimately points out that, if that happened, I would need to make various other changes. For example—and the noble Baroness made this point—under Clause 7, where there is a preliminary discussion it has to be sent to the GP, and the GP has to keep a proper record of it. How can I enforce that unless I expand the provisions of the Bill to allow Scottish enforcement, for which I would need Scottish agreement? My view in relation to the point made by the noble Lord, Lord Beith, is: let us see whether we can make it work, but it will require discussions with Scotland.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, the noble and learned Lord has already been very helpful in the undertakings and clarificatory comments that he made earlier in the debate, so I shall be very brief. In following up those comments, I will return to the question that I raised on the previous group. The Bill seems consciously to steer clear of insisting that a person’s GP must always be involved in the process being pursued by that person in seeking an assisted death, other than the GP having a duty to note in the patient record that the preliminary discussion has taken place. The entire process, in other words, could be conducted by the patient in conjunction with hospital-based medical consultants.

Do I understand correctly that the noble and learned Lord is willing to look closely at ways of making sure, by whatever means, that the crucial judgments made by clinicians about a patient’s capacity, about coercion and about that person’s settled wish to end their life are firmly and soundly based? The route to achieving that may well be the GP practice and the multidisciplinary team within it, but, as we have heard, that source of information may not be practical or useful in every case. Will the noble and learned Lord therefore ensure that he will consider more generally in the round possible safeguards that will forestall the possibility of superficial or cursory assessments being made—especially, perhaps, assessments by hospital consultants, who may have enjoyed only a brief acquaintance with the patient?

[Baroness Merron (Lab)]

My Lords, I thank noble Lords for their contributions on proposed safeguards relating to general practice. I will keep my comments limited to the amendments on which the Government have major legal, technical or operational workability concerns. On that basis, I draw noble Lords’ attention to the operational workability concerns in relation to Amendments 19, 20, 21, 29, 30B, 265A and 443A.

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[Baroness Lawlor (Con)]

I beg the Minister’s pardon but she is referring to my Amendments 30B, 265A and 443A, not those of the noble Baroness, Lady Hollins.

[Baroness Merron (Lab)]

I am most apologetic and grateful for the clarification. I hope that the noble Baroness, Lady Hollins, will forgive me, too.

I will continue. The GP must also have seen them at least six times in face-to-face appointments during those two years. Noble Lords may wish to note that these amendments introduce requirements that may result in people seeking GP appointments that are not clinically necessary. This may have an impact on wider access to GP services. Noble Lords may also wish to note that, even if a person has seen their GP the required number of times over the two-year period, their GP could still refuse to provide the explanatory letter, as they are not under any duty to participate in the provision of assistance, as per Clause 31. This would result in the person being unable to access an assisted death.

Lastly, Amendment 220, tabled by the noble Baroness, Lady Foster, seeks to add an additional step in the assisted dying process. It would not be a compulsory step; therefore, it would not have a major impact or be unworkable. However, this amendment has not had technical drafting support from officials and, although the issues raised are rightly a matter for noble Lords to consider and decide, would likely require further consideration in order to be made fully workable, effective or enforceable.

[Baroness Lawlor (Con)]

If there are on average 3.5 consultations a year face to face, with calls and so on bringing it up to 8.7, it would not necessarily make for additional unnecessary appointments for a person with such a condition. That is my first clarification. My second is about a letter being required and the doctor concerned not wanting to assist in the process. The letter is not about the process. The letter would go into the person’s history over the two years they have been consulting the doctor. It has nothing to do with the process of seeking an assisted death.

[Baroness Merron (Lab)]

Acknowledging that the amendments that I was referring to were tabled by the noble Baroness, Lady Lawlor, I have nothing to add to the points that I have already made, other than to say that the noble Baroness used the word “average” and therefore there is a question about workability. Therefore, our interpretations on the noble Baroness’s second point do differ.

[Lord Falconer of Thoroton (Lab)]

My Lords, I indicated my position in my intervention. I will summarise my understanding of the amendment, what my response is and next steps. All the amendments in this group seek a requirement in addition to having a GP before you can have an assisted death. My noble friend Lord Rook suggests having a GP for at least 12 months and having seen him twice before the first declaration. The noble Baronesses, Lady O’Loan and Lady Grey-Thompson, refer to having an “established relationship” with a GP. The noble Baroness, Lady Finlay, refers to one consultation and a home visit before the application. The noble Baroness, Lady Lawlor, refers to a two-year relationship, an average number of visits face to face and then a letter that relates to the medical condition, the treatment and the state of mind of the patient.

As I have indicated, the GP, in the structure of the Bill, is not somebody who has to be involved. The noble Earl, Lord Howe, encapsulated perfectly that the GP is somebody who is receiving information. All these provisions for making it necessary to have a better relationship with your GP than just having a GP do not touch the safeguards. Quite separately from that, I support what the noble Lord, Lord Deben, and the noble and learned Baroness, Lady Butler-Sloss, said. These provisions have an air of utter unreality if you are saying that a condition of an assisted death is a particular relationship with a particular GP. I do not think that any of these safeguards work or reflect the current drafting of the Bill.

It is clear from listening to the debate that people who are concerned with the care should form a basis for the decision. It may not necessarily be making the decision—a lot of people would say that they should not be making the approval—but their input is vital. That was the insight of the noble Baroness, Lady Gerada, which was very much reflected around the Committee. I am willing and keen to reflect that insight in the Bill. But the route is not through newness in relation to the GP. It is reflecting the proposition that the multidisciplinary team dealing with the patient must have some input. I do not know whether that satisfies the question asked by the noble Earl, Lord Howe, but that is the purpose of what I am taking away from this very valuable debate.

As for the right reverend Prelate the Bishop of Gloucester, we are going to speak about prisoners on the next group. Can I reserve my position in relation to prisoners to avoid there being too much duplication?

In those circumstances, I invite the noble Lords not to press their amendments.

--- Later in debate ---

[Lord Kamall (Con)]

I have never been so popular; it will not last, I know.

I thank the noble Baroness, Lady Grey-Thompson, for her amendments. I pay tribute to her for her sincere and long-standing commitment to protecting the most vulnerable in society. If we cast our minds back to Second Reading, many of the contributions made and concerns raised were regarding those who are the most vulnerable in our society. I remember at Second Reading being particularly touched by the words of the noble Lord, Lord Rees—he is not in his place now—who raised concerns about the vulnerability of some ethnic-minority communities, particularly those from disadvantaged communities as well.

Let us quickly rush through some of the points. On Amendment 22, which would make prisoners ineligible for end-of-life services as envisaged by the Bill, I completely understand the underlying principle. Many have spoken, rightly, about the vulnerability of prisoners. While for some it might seem wrong, as the noble Lord, Lord Farmer, has suggested, that a prisoner who has a terminal illness may have a way of cutting short their sentence by means of this Bill, as my noble friend Lady Coffey alluded to, others may say “Good riddance”. I also recognise the argument that prisoners with a terminal illness should be treated with the same compassion and care at the end of their lives as other terminally ill people subject to the Bill, as my noble friend Lord Markham recognised.

We also have to recognise some of the concerns over moral hazard. I do not know how large the incidence of this would be. Would it really encourage those who are terminally ill to commit crime? No studies have been done, but I am open to that concern. There is also the idea about higher levels of suicidal ideation, as raised by the noble Baroness, Lady Fox. These are really important points that we have to take account of.

The right reverend Prelate and my noble friend Lord Deben spoke about the pressure of reducing the prison population, while the noble Lord, Lord Carter, spoke about the higher rate of suicide among male prisoners. These are all reflections that should give us cause for concern, and things we should take account of as we consider what we will do between Committee and Report.

I thank the noble Baroness, Lady Grey-Thompson, for raising the issue of those who are pregnant. As the noble Baroness said, this was not debated in the other place, so I am grateful that the noble Baroness was able to give us the opportunity to debate it. I am also grateful to the noble Baroness, Lady Berger, for sharing statistics about expectant mothers. It was important that we heard those stats. I cannot begin to imagine the difficulty an individual in those circumstances may face. I understand the concern that it does not seem right that the safety of an unborn child may be endangered under the provisions in the Bill. I also understand that there might be precedence in other legislation. I wonder what the noble and learned Lord’s reflections on that are, given his expertise.

I note the amendment tabled by the noble Lord, Lord Farmer, on access to this for those who are awaiting trial. Once again, I would be very interested in the noble and learned Lord’s legal experience on whether that seems relevant and should be within this Bill. During the debates on the Mental Health Bill, my noble friend Lady Berridge was assiduous in spotting gaps in legislation or inconsistencies between different Acts. My noble friend has done the same thing here by raising concerns over the vulnerability of those with education, health and care plans. I think this needs further consideration.

I also thank the noble Baroness, Lady Grey-Thompson, for her amendments relating to those who are homeless or who live in insecure and temporary accommodation. I welcome the experience of the noble Baroness, Lady Gray. I still remember a conversation I had with one homeless charity that we are all one or two unlucky events or bad decisions away from homelessness. I heard from homeless people who told me that they had a great job and a great family life and that everything was going their way. They lost their job, which then led to them losing their marriage. After incidents of sofa surfing and testing the patience of their friends, they ended up homeless. It could happen to anyone. It is important that we do not dismiss the homeless as people who cannot be bothered or are idle. It could happen to anyone. Any noble Lords who have met those in homeless communities will know that some people had been incredibly successful but, after two or three bad decisions or unlucky things that happened in their life, they suddenly found themselves homeless. They are also judged by the way they look when they are homeless.

I remind all noble Lords that the Bill relates only to those who are suffering from a terminal illness and those who have been given an expectation that they will not live for longer than six months. We have to be very careful that, although we have sympathy for the homeless and prisoners, the Bill relates only to those who have a terminal illness. I know there are concerns that the Bill may be widened beyond that, but that is the debate at this stage. We should be quite clear that we are focusing on those with a terminal illness. So, much like on the question of prisoners and others, I recognise the arguments on all sides, but this is an opportune moment, not only because of time but because of the noble and learned Lord’s legal experience, to hear his reflections—after the Minister, obviously.

[Baroness Merron (Lab)]

I am most grateful.

My Lords, I thank all noble Lords for their contributions to the debate on this group. As is my consistent introduction, my remarks will focus only on issues where the Government have major legal, technical or operational workability concerns. Many of the points that follow relate to the European Convention on Human Rights. These are risks that I am raising to inform noble Lords’ decision-making, as I said on the first group. I wish to be clear that the underlying policies are a matter for Parliament. I say to noble Lords who referred to my ministerial colleagues in the other place that it is the role of Ministers, whether in your Lordships’ House or in the other place, to flag the risks to the Bill, including potential legal challenges. As I said, policy decisions remain a matter for the sponsors. Decisions in this regard rest with Parliament.

I begin with Amendment 22, tabled by the noble Baroness, Lady Grey-Thompson, and Amendment 30C, tabled by the noble Lord, Lord Farmer. These amendments would make prisoners, a defendant on remand, a defendant on bail or those detained by a hospital order ineligible for assisted dying services, even if they have a terminal illness and meet all other criteria. Aside from the right to liberty—Article 5—the ECHR requires that prisoners, a defendant on remand or a defendant on bail should have the same rights as those who are not. The rights engaged by this amendment are Article 8 on the right to respect for private and family life and Article 14 on prohibition of discrimination. Noble Lords may wish to note the risk that making these groups ineligible for assisted dying would, on the face of it, lead to a difference in treatment, which would need to be objectively and reasonably justified in order to comply with ECHR obligations.

Likewise, making ineligible hospital in-patients who are under a hospital order would lead to a difference in treatment. Without sufficient justification for the discriminatory treatment, this may be a breach of the ECHR, which could lead the courts to issue a declaration of incompatibility.

The noble Baroness, Lady Grey-Thompson, has also tabled Amendments 24, 458, 308 and 347. The purpose of Amendments 24 and 458 is to exclude those who are pregnant from accessing assisted dying, while that of Amendments 308 and 347 is to make persons who are homeless, or living in supported or temporary accommodation, ineligible for assisted dying services. As I have previously noted, the reasons for this difference in treatment would need to be adequately justified to avoid the risk of a successful challenge under the ECHR.

[Baroness Stroud (Con)]

Can the Minister give her perspective on whether the arguments laid out today would be justifiable as reasons for a different form of treatment between the two categories: prisoners and non-prisoners?

[Baroness Merron (Lab)]

It is important I reclarify that that is a policy decision. What I am doing with your Lordships’ Committee is advising on risks, to assist noble Lords to make their decision regarding this policy.

Amendments 30A and 119A, tabled by the noble Baroness, Lady Berridge, would exclude any person with an education, health and care plan from being eligible for an assisted death, except in cases provided for in regulations made by the Secretary of State. As drafted, these amendments could impose unclear and potentially undeliverable legal duties on the Secretary of State and are potentially not aligned with how EHCPs work in practice or in law. The amendments give rise to a number of unresolved operational questions that do not work with other provisions of the Bill and they are not drafted with sufficient specificity. That could lead to confusion for those interpreting the legislation and unintended outcomes.

[Baroness Berridge (Con)]

We are about to have a meeting to outline special additional conditions, so can I clarify that the Minister is not saying that that is not possible and just that the particular conditions outlined in Amendment 119A are not possible?

[Baroness Merron (Lab)]

First, I am referring to the amendments before us. Secondly, I am advising on risk and workability, again for the assistance of your Lordships’ Committee, which, as is correct and proper, will make the decision.

These amendments appear to treat people with EHCPs differently from those who do not have them. This could give rise to potential incompatibility with Article 14 of the ECHR, when read with Article 8, and would require reasonable justification for differential treatment.

Finally, as noble Lords will be aware, the amendments in this group have not had technical drafting support from officials, so the way they are drafted means that they may not be fully workable, effective or enforceable. However, as I have said, the issues raised are rightly a matter for noble Lords to consider and decide.

[Lord Carter of Haslemere (CB)]

My Lords, the Minister referred to a number of articles of the ECHR, but she has not referred to Article 2, which is the duty on a state to protect life. That is why the courts have imposed a duty of care on the Prison Service and the Government to protect prisoners from committing suicide. My question goes back to what I said earlier: how do the Government reconcile that duty with a vulnerable prisoner applying for an assisted death? How does that square with the duty under Article 2 and the duty of care to prisoners?

[Baroness Merron (Lab)]

I refer the noble Lord to the provisions within the Bill. His earlier question was very much about policy. I am sure that my noble and learned friend will also refer to this, but this is a matter of policy and therefore it is for Parliament to decide.

[Lord Falconer of Thoroton (Lab)]

I am obliged to noble Lords for all their questions. I will deal with the four issues that this group raises: prisoners, pregnant women, homeless people and those who are the subject of an education, health and care plan.

Turning first to prisoners, I declare my interest as chair of a prison charity, Liberty Kitchen. I have been involved in prison issues for a very long time; indeed, I was once the Minister responsible for prisons. When I was in that role, every time a prisoner committed suicide, it was deemed a failure of the Prison Service and something that we took incredibly seriously.

As far as prisoners are concerned, I will make two points. First, this is about people who are terminally ill and have six months or less to live. The question that the sponsors address is whether prisoners should be treated differently from the rest of the population. The posit is: if you are a prisoner and get a terminal illness, is the condition of the prison so terrible that you should never allow a prisoner ever to have that right?

Wheelchair and Community Equipment Strategy

Baroness Merron Excerpts

Thursday 11th December 2025 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I am most grateful to my noble friend Lord Hunt, not just for securing this important debate on a vital issue, as the noble Lord, Lord Kamall, said, but for his campaigning, along with other noble Lords, groups and individuals outside your Lordships’ House over many years. I am also grateful to noble Lords not just for their contributions but for sharing their experiences, some of which are painful to relate and to hear.

On the maiden speech of the noble Baroness, Lady Gerada, I welcome her experience and approach. I welcome her to your Lordships’ House. The noble Baroness spoke of choosing to speak in this debate because of its featuring, among other things, dignity and fairness. I was touched by her description of what and who a GP really is within their community. I know that we all look forward to hearing more from the noble Baroness. Perhaps I might say that the Government have promised more GPs—and we are delighted to have more GPs sitting on our red Benches.

This has been an affecting debate, not least as people described the impact of services not being, as they should be, in the right place. I am sure we would all agree that there is more work to do, but I will take this opportunity to outline what the Government have done and are doing. We are focused on ensuring that disabled people have access to the services and support that they need to lead a fulfilling life. My ministerial colleague, Zubir Ahmed MP, is the relevant Minister and I look forward to sharing the points and questions raised in this debate with him.

Integrated care boards are responsible, as the noble Lord, Lord Kamall, just quoted, for the provision and commissioning of local wheelchair services based on the needs of their local population. I am glad that the noble Lord, Lord Kamall, recognised the importance of flexibility. However, flexibility cannot be an excuse for not providing—a point I have heard rightly and repeatedly today.

There are no plans to publish a national strategy for wheelchair provision. I know that will be disappointing to noble Lords, but NHS England has developed policy guidance and legislation to support ICBs, which are crucial in this, to ensure the commissioning of effective, efficient and personalised wheelchair services, including the wheelchair quality framework, published in April, in collaboration with the NHS England national wheelchair advisory group.

Local authorities have a statutory duty to arrange for the provision of community disability equipment to meet the assessed care and support needs of people in their area. Our 10-year plan for health gives that freedom and autonomy to serve local people to local commissioners. In this regard, it is important that we are giving systems a greater degree of control and flexibility over how funding is deployed to get this done.

I have heard about delays to wheelchair provision. I say this not as any excuse at all, but the pandemic continues to have an impact on wheelchair services, not least because some providers have not only reduced their services—with the inevitable outcome—but now face a backlog of referrals. I was interested to explore that some services have also experienced lower referral rates during the pandemic. This of course led to a surge in referrals later. It has meant that waiting times for both adults and children have fluctuated, as services have worked to recover.

However, we need action to address waiting times and I absolutely recognise the impact that delays have. To that point, in October, we published the NHS Medium Term Planning Framework, which requires all ICBs and community health services to actively manage and reduce waits over 18 weeks, and to develop a plan to eliminate all 52-week waits.

The noble Lord, Lord Blencathra, rightly referred to the need to focus on measuring outcomes. The community health services situation report will be used to monitor ICB performances against waiting time targets in 2026-27, and currently monitors waiting times for children, young people and adults under wheelchair, orthotics, prosthetics and equipment. These targets will guide systems to reduce the longest waits. Additionally, the model service specification for wheelchairs sets out that wheelchair assessments have to take place in the most suitable environment, including hospitals, the key thing here being that they are based on the need of the individual.

My noble friend Lord Hunt and other noble Lords rightly spoke of delays in discharge being linked to temporary or short-term loan wheelchairs rather than long-term provision. Access to temporary wheelchair provision to support hospital discharge is determined locally by ICBs; it does not fall within the remit of NHS wheelchair services, which provide services to people of all ages with long-term mobility needs. I heard the point made very clearly about the technology and quality of wheelchairs, which is one of the things I will be raising and discussing with Minister Ahmed.

Reducing waiting time is part of improving the quality of wheelchair services, but it is not the whole story. The quality framework, which the noble Lord, Lord Shinkwin, asked about, is very much designed to assist ICBs and NHS wheelchair service providers to get it right. I have heard, from the experience of noble Lords in the Chamber and also from those outside, that this is not always the case, and I understand that. However, the quality framework sets out the quality standards relevant to all suppliers and aligns with the CQC assessment framework. To the point raised by the noble Lord, Lord Blencathra, and the noble Baroness, Lady Brinton, this is about aiming to tackle the inequalities that we know exist—I acknowledge that—in outcomes, experience and access.

NHS England statutory guidance sets out how ICBs should be working with people, communities, key partners and local authorities. That is why each ICB must have executive leads who work closely with local authorities and who promote integrated working for the benefit of people, including those with a learning disability, autism, Down’s syndrome, and children and young people with special educational needs and disabilities.

As was referred to in the debate, NHS England introduced personal wheelchair budgets in 2019 and gave a clear framework for ICBs to commission personalised wheelchair services, focusing on outcomes and also on integrated care, giving people greater choice over the wheelchair provided—and I have heard what noble Lords have said today.

The noble Baroness, Lady Lane-Fox, spoke quite correctly about the impact of the quality of services on the ability to be in the employment market. That is about quality of life as well as the economy, and I share her views.

The noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Rennard, discussed dissatisfaction with services; I heard that mentioned a number of times. NHS bodies and local authorities must arrange for dealing properly with complaints.

The approach of the 10-year health plan identifies disabled people as a priority group. Our neighbourhood health service will support disabled people, and the 10-year plan focuses on choice and control over their care. I have heard what noble Lords have said, and I will take that back. I hope the steps we have made will make a difference, but I recognise that there is so much more to do.

Terminally Ill Adults (End of Life) Bill

Baroness Merron Excerpts

Committee stage
Friday 5th December 2025 Lords Chamber

[Lord Kamall (Con)]

My Lords, I hesitate to rise as I want to ensure that everyone feels that their voice has been heard in this debate. We do not want to make law on a basis on which people look back and say that we did not properly debate a particular issue. If all noble Lords who wish to speak in this debate have spoken, I am very happy to make my contribution, but if there are any other noble Lords who wish to make their point, I should give way.

Well, that answers that question; I tried my best. I want to make that point clear. It is really important that everyone who feels they want to speak can do so, but I also say to noble Lords, including my noble friends, that it is also important to respect the rules and conventions, to speak to the amendments and not to repeat Second Reading speeches or make wider debates. I hope we can get that appropriate balance. I have taken time making those points, so I will try to be brief.

I pay tribute to the noble Baroness, Lady Berger, especially for the way in which she delivered the Select Committee process that preceded our deliberations in Committee. The evidence submitted to that committee will be invaluable to noble Lords as we continue our work to scrutinise the Bill.

Without making a long speech, I will reflect on the specific amendments on changing the minimum age. I was talking to a noble and learned friend about this, and he said that, frankly, the law around age is a mess—and that has come out in some discussions. Sometimes we are speaking from our own experience. My two children are in their 20s, and I wonder whether they would really have the capacity to make this decision. But at other times, I sit in awe of them and the decisions they make. They express maturity way beyond 20 years, and, in fact, more maturity than much older people.

It very much depends on the individual in these cases. We have to look at whether there is a way to achieve that right balance; otherwise, we will just be making another age limit. You can join the Army at 16 but you cannot serve in combat until you are 18. The Government are talking about reducing the voting age to 16, but then we are hearing debates on neurological competence and capacity. It is important that we understand and express these points.

The point that came out for me in this whole debate about neurological development is that there is no such thing as “the science”. Science is contestable. We heard this from noble Lords who are experts in their field. We must be very careful about saying that “the science says this”. It also has implications for other decisions.

I turn to a couple of points which may already be treated in the Bill. I want to check the understanding of the noble and learned Lord, Lord Falconer of Thoroton, on what is in the Bill. The noble Baroness, Lady Hollins, asked: what happens if a new treatment is available? Clause 2 says

“which cannot be reversed by treatment”,

which probably takes care of that point, but I would like the noble and learned Lord, Lord Falconer, to share his interpretation and say whether it addresses her concerns. The noble Baroness, Lady Hayter, said that we should think about these young people who will be suffering and in pain, yet nowhere in Clause 2 are the words “pain” or “suffering”. We must be very careful to read what is in the Bill when we are making these points.

I welcome the intervention by the noble and learned Lord, Lord Falconer, that while he is quite clear about 18, he is sympathetic to the idea of cognitive development and maturity between 18 and 25, and there might be some discussion. Who knows—I cannot speak for the noble and learned Lord, who has looked into this issue very deeply—but perhaps in those discussions he may be persuaded. He is saying 18 at the moment, but clearly he is open to enhanced measures for those aged between 18 and 25. That is something that I hope the whole Committee will welcome.

There are many other points that I could make, but it is important to hear from the Government and what the noble and learned Lord believes in response to the points that have been raised.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I am grateful to noble Lords for their contributions to this debate on the age of eligibility for those who are provided with assistance under the Bill. I have made it clear previously, and reiterate, that I will keep my comments limited to the issues on which the Government have major legal, technical or operational workability concerns.

The amendments tabled by the noble Baronesses, Lady Berger, Lady Lawlor and Lady Hollins, seek to raise the age at which an individual would be eligible for the provision of assistance under the Bill. The points that I wish to raise here relate to the European Convention on Human Rights. There are potential risks that I am raising to inform the decision-making of noble Lords, but the underlying policies are rightly a matter for Parliament. Under the convention, the amendments in this group could give rise to legal challenge; for example, that excluding people who are under 21 or 25 from accessing assisting dying may not be justified under Articles 2 or 8 of the EHCR, or that this amounts to unjustified discrimination under Article 14.

Noble Lords will be aware that differential treatments, such as raising the age of eligibility, may be lawful if it is possible to persuade the courts to agree that the age limit is justified, necessary and proportionate. There would need to be a reasonable justification for restricting access to assisted dying to people aged either 21 and over or 25 and over. Noble Lords will want to consider this in relation to these amendments.

[Lord Harper (Con)]

Can the Minister be clear? If we decided to limit—whether by age or in some other way that the noble and learned Lord, Lord Falconer, might decide—and put that into primary legislation, is that then not the law of the country? All that the European court could then do is say that it is not compatible but remains the law—or is the Minister saying something different? If we pass primary legislation, that is the law of the land, is it not?

[Baroness Merron (Lab)]

The point that I was making just before I sat down was that noble Lords will want to consider the points that I have raised in relation to these amendments. I am sure that they will take into account what the noble Lord has just said too.

[Lord Falconer of Thoroton (Lab)]

My Lords, I am grateful to everybody who has contributed to the debate. I have made my position moderately clear in relation to what we should do—and I sense that the Committee is happy that we should take that course.

I completely understand the points about people aged 18 being impulsive and often emotionally immature. On the point made by the noble Baroness, Lady Stroud, that is why the Sentencing Council refers to it. However, it is a different question here as to what the age limit should be. If people are emotionally immature, they will not have a settled view about what to do in these circumstances, but some people will. The noble Lord, Lord Kamall, asked: what happens if there are new developments in medicine that would extend life? The answer is that you would not have six months or less to live, which I think was the answer that he was giving in relation to it.

I have made my position clear. I invite the noble Baroness, Lady Berger, in the light of where we have got to, to withdraw her amendment so that we can move on to the next issue.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I can be extremely brief, because of the confirmation given by the noble and learned Lord and also knowing that the substantive issues of domestic abuse, interpreters and various other matters will be dealt with in their appropriate place.

At the risk of underlining my reputation as a legal geek, I invite the noble and learned Lord’s attention to his Amendment 350, and in particular the Member’s Explanatory Statement. I understand the amendment, but I do not understand the statement. The amendment leaves out from “to” to end of the line and inserts “section 12(4) and (7)”, which are about “sharing of specialists’ opinions”. The Explanatory Statement says:

“This is a drafting change (consequential on subsection (4) being added to clause 12)”.


Now, Clause 12 already has a subsection (4), and the noble and learned Lord’s amendments to Clause 12 are to subsections (5) and (8). I do not know whether the Explanatory Statement has confused me and in fact the change is not consequential on a new subsection (4) being added but just stands in and of itself. It may be that I am confused unnecessarily, but if the noble and learned Lord could just clear up that minor point, I would be grateful.

[Baroness Merron (Lab)]

My Lords, I, too, shall be brief. All but three of the amendments in this group have been tabled by the Bill’s sponsor and, as has been discussed, they make a series of drafting changes to the Bill, including making sure that terms are consistent throughout and removing ambiguity and duplication.

The Government are neutral on all the policy choices reflected in these amendments, as they are on the Bill as a whole, but have as usual provided drafting support to make the Bill legally workable. As a part of the discussion today, it is of course for the sponsor and for Parliament to determine whether any of the amendments that the sponsor has chosen to table have changed the intent of amendments that were debated in the other place.

Amendment 7 in this group, tabled by the noble Baroness, Lady Coffey, seeks to amend Amendment 6 by changing a reference in Clause 1(2)(b) from “a preliminary discussion” to “their first preliminary discussion”. It does not make any wider changes to the Bill to provide for more than one preliminary discussion to take place, so this may lead to uncertainty. As with all amendments that have not had technical input from the Government, noble Lords may wish to note that the current drafting of this amendment may require further consideration to make it fully workable, effective and enforceable.

Amendments 8 and 9, on which I raise no major workability issues, appear to be trying to achieve the same purpose as Amendment 6, tabled by the Bill’s sponsor. But I would note that Amendments 8 and 9 have not had the technical drafting support from officials and therefore may not be fully workable, effective and enforceable.

[Lord Falconer of Thoroton (Lab)]

My Lords, I am grateful for all the interventions. These changes are only drafting changes. Some legitimate points were made, particularly by the noble Baronesses, Lady Finlay and Lady Lawlor, but they did not really go to the drafting points.

I go to the concerns various Members have expressed. Amendments 6 and 7, tabled by the noble Baroness, Lady Coffey, would prevent doctors having a conversation with people—I am not saying this in a bad or a good way, but that is what she wants to do—particularly before they reach 18. There is a point there, but it is nothing to do with the change I have introduced in my Amendment 6. My amendment would simply make it clear that there has to be a preliminary discussion before you can go ahead to assisted death. I have done that to make it clear that it is one of the eligibility conditions; it says nothing about what should be talked about or whether such a conversation should take place under the age of 18.

In fact, as the noble Baroness, Lady Coffey, said, Clause 6 states:

“No registered medical practitioner or other health professional shall raise the subject of the provision of assistance in accordance with this Act with a person under the age of 18”.


I do not think that the noble Baroness’s amendment would add to that protection. The key point is that all Amendment 6 is doing is saying that you have to have a Clause 5 discussion.

The next point, raised by a number of Peers, is that I am watering down the protection in relation to domestic abuse. That, as a matter of drafting, is wrong. It is only a matter of convenience that, having defined domestic abuse as including everything so defined in the Domestic Abuse Act 2021, you get coercion, control and economic abuse as forms of domestic abuse. To avoid having to repeat that every time the Bill refers to training, I have simply referred to domestic abuse, and that is then defined at the top of page 41. I very much hope that people will accept that that is the position.

The noble Baroness, Lady O’Loan, who is shaking her head, raises a different point about the position in relation to abuse that is not domestic. Perhaps your lawyer is exercising undue influence on you. That is a point that I will respond to in writing, but it is not a point raised by my drafting change, because all the restrictions have been in relation to domestic abuse, not to what the lawyers would call undue influence. But it is a perfectly legitimate point, which I will come back to in correspondence with her.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My noble friend is absolutely right; on that point they do change the policy intention. I am grateful. I would welcome the thoughts of the noble and learned Lord, Lord Falconer of Thoroton, on that.

Finally, in the absence of my noble friend Lord Howe, I have been asked on his behalf to formally speak on his Amendments 301A and 305A. In speaking to those amendments, I want to highlight the threshold which is set for determining whether an individual is in England and Wales at the time of the first assessment. I hope the noble and learned Lord will be able to pick up this point.

As the Bill is drafted, the question as to whether somebody is ordinarily resident in England and Wales rests on what is called the

“opinion of the coordinating doctor”.

My concern is that an opinion without any further evidential requirement may be too low a bar, particularly given the need to guard against the risk of what has been called death tourism. In other parts of the Bill, the noble and learned Lord has used the word “satisfied”, and I think we would agree that that entails a higher evidential bar than merely “opinion”—indeed, that is also higher than “believes” or “reasonably believes”. “Satisfied” is a higher standard. When the noble and learned Lord replies, can he use that opportunity to explain why the test here is only “opinion” and not “satisfied”, as that test is used in other parts of the Bill?

[Baroness Merron (Lab)]

My Lords, I thank all noble Lords for their contributions to this debate on the issue of residency and eligibility criteria. As I have already made clear and will now repeat, I will confine my comments to amendments on which the Government have major legal, technical or operational workability concerns.

First, I turn to the amendments which narrow the residence criteria in respect of eligibility for assistance under the Bill. Amendment 11, tabled by the noble Baroness, Lady Finlay, would change the residence criteria for assistance under the Bill from requiring a person to be “ordinarily resident” to “permanently resident”. Unlike “ordinarily resident”, “permanently resident” does not have a set definition in the context of UK immigration law. It is possible that it would be taken as referring only to those who have citizenship or indefinite leave to remain, which is a much narrower scope than the current wording of “ordinarily resident”.

Similarly, Amendments 23, 309, 300A and 306A would restrict access to assisted dying support to British citizens or people with indefinite leave to remain. This may result in migrants on long-term work or study visas who have resided in England and Wales for longer than 12 months being denied access to an assisted death, thereby potentially giving rise to indirect discrimination based on race. These amendments may be subject to challenge under Article 14 of the ECHR when read with Article 8, on the basis that this may amount to unjustified discrimination. This differential treatment would require an objective and reasonable justification.

In addition, under various international agreements, the UK has an obligation not to discriminate against EU, EEA and Swiss nationals on the basis of nationality, although the agreements do not prevent restrictions on the basis of residency. Since these amendments would prevent individuals from those countries from accessing these services on an equal basis to UK citizens in the same circumstances, they are likely to be contrary to the UK’s international obligations under those agreements.

Amendments 11A, 258A, 306B and 449A, tabled by the noble Baroness, Lady Coffey, seek to change the residency requirement from “ordinarily resident” to “domiciled”. These amendments would add complexity and potential uncertainty to the eligibility requirements. “Domiciled” refers to the determination of a person’s permanent home largely for tax purposes, meaning that a person can be domiciled in a place without being resident there. It is not a familiar concept in domestic law outside of taxation, so it is unclear how it would apply in this context. Further elaboration in guidance would be needed to make these amendments workable. It is also unclear what practical impact this change would have when the Bill would still require people to be physically present in England and Wales in respect of the steps under Clauses 8, 10, 11 and 19.

I will next turn to Amendment 14, in the name of the noble Lord, Lord Moylan.

[Baroness Coffey (Con)]

Before the Minister moves on, Kim Leadbeater specifically introduced this concept of England and Wales, and, in Committee, Stephen Kinnock did not raise any issues with it at all in terms of operability or similar. I am astonished to hear some of the other elements that are now coming out for the first time in the consideration of this Bill.

[Baroness Merron (Lab)]

I am sorry to hear of the noble Baroness’s surprise. I am simply setting out where the Government have particular concerns within the scope to which I referred. My noble and learned friend Lord Falconer may be able to comment more appropriately, if he wishes to do so, on the points that she raises.

Amendment 14, in the name of the noble Lord, Lord Moylan, would widen the eligibility criteria to include UK citizens of pensionable age who are living abroad. There are two main issues with this amendment. The first is that the UK has obligations under international agreements that enable residents of partner countries to receive certain benefits, including some health service provision, in the UK. These agreements are, as I mentioned, with the EU, EEA states and Switzerland. As I set out, these agreements prevent restrictions based on nationality, although they permit those based on residency. Therefore, the amendment would have the effect of opening access to provision of assistance under the Bill to EU, Swiss and EEA residents of pensionable age, provided that they satisfy other eligibility criteria. Widening access only to UK nationals of pensionable age would be contrary to the UK’s obligations under those agreements.

Secondly, by including those who have “moved to live abroad”, the amendment would enable pensionable-age citizens from Northern Ireland or Scotland who have moved abroad to access the provision of assistance, in accordance with the Bill, if they satisfy the other eligibility criteria.

For all the other amendments in this group, on which I make no comment, any workability concerns are less significant. For example, Amendment 10 would remove two eligibility criteria from Clause 1, while Amendment 13 would change the requirements relating to ordinary residence in England and Wales. As Clause 1 is largely descriptive, these amendments would have limited legal effect without corresponding amendments being made to operative provisions later in the Bill.

While these are choices for noble Lords, these amendments may introduce inconsistencies and ambiguity into the Bill. As noble Lords will be aware, these amendments have not had technical drafting support from officials, so the way in which they are currently drafted means that they may not be fully workable, effective or enforceable—but, of course, the issues raised are rightly a matter for noble Lords to consider and decide on.

[Baroness Finlay of Llandaff (CB)]

Given that Jersey and the Isle of Man, if I am correct, are not EEA countries, how is the contract for health service delivery affected by this Bill in the light of the problems that I highlighted right at the beginning of what has turned into quite a lengthy debate? I was trying to look at a carve-out for those countries so that those contracts could continue, but I was told that it was deemed out of scope of the Bill.

[Baroness Merron (Lab)]

I am sure the noble Baroness will understand that I am restricted in the comments that I can appropriately make here. I heard my noble and learned friend Lord Falconer say that all these matters needed consideration, and I am sure that he will expand further on that very point.

[Lord Falconer of Thoroton (Lab)]

I will come to that question when I go through the points.

The purpose of Clause 1(1)(c)—namely, that to qualify you have to be ordinarily resident in England and Wales and have been so resident for at least 12 months—is, as noble Lords have said, to avoid people coming here specifically for the purpose of having an assisted death. It therefore would not be adequate to say that people should be ordinarily resident at the moment they apply, because they would have come specifically for that period. Hence you need a period, and 12 months is taken as a reasonable period in relation to that.

The phrase “ordinarily resident” appears right throughout the statute book in a whole range of settings and reflects the policy choice made by regulations or statutes. It says, “We want to give this right to people who permanently live in this country”, using the word “permanently” not in a legal sense but in an ordinary sense. In applying that phrase, the courts have not generally had any real difficulty as to what it means. It is a reflection of this Parliament saying that we want to give particular rights to the people who live here, and sometimes we say, as we are suggesting here, that we do not care what their citizenship status is—if they live here permanently, they get that right. For example, in relation to the National Health Service we say that if people live here permanently, they get that right.

With the greatest respect to the noble and learned Baroness, Lady Butler-Sloss, the cases have made it pretty clear that you can be ordinarily resident here but have temporary absences abroad—for example, if you go to work as a diplomat abroad, serve in the Armed Forces or take a job that takes you away for two months. The big case is somebody whose family lived here and who went to be educated in India for a period of time, who is still held to be ordinarily resident here. With the greatest respect to the noble Lord, Lord Mackinlay, I do not think that adopting the phrase “ordinarily resident” gives rise either to injustice or to legal difficulties.

I will deal with the points made by individual Peers. I am very sympathetic to the point from the noble Baroness, Lady Finlay, as I made clear in my intervention. I do not think she was putting in the word “permanently” other than to probe the question of those who live on the Isle of Man or Jersey and get all their medical treatment habitually in England. When the doctor in England says, “I will help you go home to the Isle of Man to get an assisted death”, assuming that it becomes legal in the Isle of Man, the doctor there will be committing a criminal offence under the Bill unless there is an amendment.

The BMA has proposed an amendment that, if you help somebody go home for an assisted death—home being, say, the Isle of Man or Jersey—and it is legal there, that should not be a criminal offence. I talked to the BMA about that. We need to work together to see whether we can get an amendment that satisfies the point that the noble Baroness, Lady Finlay, has made. I would welcome her input in relation to this.

Terminally Ill Adults (End of Life) Bill

Baroness Merron Excerpts

Committee stage
Friday 21st November 2025 Lords Chamber

Nevertheless, given the Bill’s subject matter, there are two watchwords that we should carry in our minds, particularly in the light of the speech of my noble friend Lord Shinkwin. They are “reassurance” and “clarity”. Amendment 3 and others in this group would serve to deliver reassurance through greater clarity. That is why I suggested that the noble and learned Lord, Lord Falconer, should consider these amendments with a sympathetic eye, because they serve to put the Bill’s intentions around coercion beyond any reasonable doubt and they do so without in any way undermining the Bill’s underlying aims.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I thank all noble Lords who have spoken today for their contributions on these important issues. As I have already made clear, I will keep my comments limited to the amendments on which the Government have major legal, technical and/or operational workability concerns.

On that basis, I will speak about Amendments 118 and 118B. Amendment 118, tabled by my noble friend Lord Hunt, could prevent a person from accessing assistance where there is no clear connection between their individual circumstances and the crime that their close relative is under investigation for or has been convicted of, even if the said crime took place some years in the past. Amendment 118B, tabled by the noble Lord, Lord Farmer, would expand the meaning of “close relatives” to include “friends”. It is not clear who would determine the meaning of “friends” in this context. I should also say that disclosure of personal data engages Article 8 of the ECHR and is regulated by the principles set down in the Data Protection Act. Detailed financial assessment of those connected to a person seeking assistance is likely to interfere with the privacy of those individuals, particularly where there are no signs of coercion. The necessity of doing so is difficult to assess in the round rather than considering this on a case-by-case basis.

I turn to Amendments 222 and 612, in the name of the noble Baroness, Lady Hollins. Amendment 222 proposes a new clause to oblige the Secretary of State to provide specialist psychological assessment and support for persons considering an assisted death and their families. It would also oblige the Secretary of State to establish bereavement support services offering psychological support before an assisted death to all persons concerned. The Bill does not require families to know about an assisted death in advance, so requiring the offer of psychological services to them could create an undeliverable obligation on the Secretary of State.

Amendment 612 would mandate the video recording of a person being assisted to end their own life. The amendment would also require the person to confirm in the video recording their identity, their wish to die of their own free will, their capacity and that they are acting without persuasion or coercion. The amendment would require that this recording is sent to the coroner within 72 hours of death and it would create a regulation-making power for the Secretary of State concerning the practical arrangements for the recording, storing and transmission of the recordings. Requiring that a person’s death be video recorded where they did not wish the event to be recorded could risk being a significant intrusion into their family and private life under Article 8 of the ECHR. Since the Bill includes several safeguards, this intrusion is unlikely to be considered justified, and this amendment could also raise GDPR issues and concerns.

Amendment 460, in the name of the noble Baroness, Lady Finlay, specifies a range of actions the panel must take into account when considering a person’s psychosocial and safeguarding circumstances. It includes a requirement to offer immediate access to safe housing and financial support where abuse is disclosed. As the Bill is drafted, neither the panel nor the commissioner is provided with such a function and it is not clear how this would interact with local authority responsibility for housing provision.

As for the other amendments in this group where I make no detailed comments, although they may be deliverable, some would be challenging to implement. For example, Amendment 47 would require assessing doctors and the panel to assess a person’s state of mind or private thoughts. Amendment 58 would require an assessment of indirect structural disadvantage, including poverty or lack of care. Although I raise specific workability issues with only a small number of amendments in this group, noble Lords will be aware that the other amendments in this group have not had technical drafting support from officials. The issues raised by these other amendments are rightly a matter for noble Lords to consider and decide on, but I note that the way in which they are currently drafted means that they may not be fully workable, effective or enforceable.

[Lord Falconer of Thoroton (Lab)]

My Lords, in this debate we heard deeply personal information from the noble Lords, Lord Empey, Lord McCrea, Lord Watts, Lord Polak, Lord Griffiths, Lord Carlile of Berriew and Lord Shinkwin, and the noble Baronesses, Lady Hollins, Lady Hayter and Lady Grey-Thompson. I express my profound respect for people being willing to share in that way. I make it clear that in nothing that I say do I in any way intend to disrespect any of what must have been quite difficult statements to make. I really treasure many of the things that have been said, whether for or against the Bill.

As all noble Lords engaged in the debate know, at the heart of the Bill—there is no dispute about this—the decision to have an assisted death has to be where the patient, to quote the Bill,

“has a clear, settled and informed wish to end their own life, and … has made the decision that they wish to end their own life voluntarily and has not been coerced or pressured by any other person into making it”.

There is no dispute in the Committee that there have to be appropriate and sufficient safeguards to ensure that there is no coercion.

The current safeguards in the Bill are as follows: first, a doctor has to be satisfied that the person is not being coerced. Secondly, a second doctor has to be satisfied that the person is not being coerced. Thirdly, a panel has to assess that the person is not being coerced. Fourthly, the first doctor—after a period of reflection, in signing a second declaration by the patient—has to be satisfied again that the person is not being coerced. Finally, the doctor providing the assistance has to be at the last moment satisfied that the person is not being coerced.

The two doctors who give the certificate at the beginning must both have had specialist training in domestic abuse, including training on identifying coercive control and domestic abuse, and including identifying the effect of financial control. The panel considering the matter must consist of a psychiatrist, a social worker and a senior lawyer. If either of the two doctors have any doubt about the position in relation to capacity, they have to consult a psychiatrist. Anybody who by dishonesty, coercion or pressure induces the patient to either execute a declaration that they want an assisted death or take the assistance is guilty of a criminal offence. If all that the person does by dishonesty, coercion or pressure is to induce the person to execute a relevant document, the maximum sentence is 14 years. If, on the other hand, if they induce the person to take their own life, then the maximum sentence is life.

The question before the House in this debate is whether those protections are adequate to ensure that there is not coercion. I have before me a number of amendments. Amendment 3 is proposed by the noble Baroness, Lady Finlay: she would like “independent” to come before “decision”. I wholeheartedly agree with her that the decision must be independent, in the sense that it is a free decision made by the person, unpressured or coerced in the way that I have described. I am always influenced by what the noble Earl, Lord Howe, says in relation to that; he said, “Reassure us”. There is no dispute between me and the noble Baroness, Lady Finlay, that it has to be an independent decision. Is it clear enough in the Bill? With the deepest respect to both the noble Baroness, Lady Finlay, and the noble Earl, Lord Howe, I point out that it specifically says that the person should have

“made the decision that they wish to end their own life voluntarily and … not been coerced or pressured by any other person into making it”.

With respect, I say that it is clear enough on the face of the Bill.

I turn to Amendment 45, that of the noble Baroness, Lady Fox, which would insert “encouraged” in addition to “coerced” and “pressured”. I have thought very carefully about this, and I am against putting it in. The reason is that I see the reality: somebody who is thinking about an assisted death will want to talk frequently to those who love them. They may want to talk to the multidisciplinary team which is looking after them. Let us suppose somebody says, “I really, really want to go now. Should I take that opportunity?” If somebody says, “I encourage you to make the decision that is best for you,”, what the noble Baroness is proposing is that that becomes a criminal offence, potentially imprisonable for 14 years or for life. To me, that does not seem sensible.

I turn to Amendment 46. The noble Baroness, Lady Finlay, asks for “influenced” or “encouraged” to be added. I have dealt with “encouraged”. With regard to “influenced”, the multidisciplinary team or the person’s loved ones may well—with the best motives—influence somebody to go ahead with it. I do not criticise them for that if that is what the person wants and if it helps. It seems to me, again, wholly inappropriate to go beyond “coerced or pressured”.

On Amendment 47, the noble Baroness, Lady Coffey, suggests that it should be “external or internally” pressured that one is concerned with. We can understand external pressure—that is, somebody pressurising someone else to do it, and pressure carries with it an inappropriate degree of influence—but how does one in practice deal with an analysis of what would make me, for example, want my life to end? My noble friend Lady Merron also referred to that. The pain, the lack of dignity, the sense that I am not the person that I was in front of my own children is internal pressure. It might include me thinking, “I do not want to go on with this; in part, I’ve only got two or three weeks to live, and I want it to end”. The internal pressure is making me come to that conclusion. It is impossible to ask people, in particular the law enforcement authorities, to investigate what is going on in my mind. I have thought very carefully about that. I reassure the noble Lord, Lord Ashcombe, that I have given each of these amendments very careful thought, because they are important, but, again, I do not think that is a practical solution.

Medical Nuclear Radioisotopes

Baroness Merron Excerpts

Thursday 20th November 2025 Grand Committee

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I congratulate the noble Baroness, Lady Bloomfield, on securing this valuable debate. I think we should judge its value not by the number of people here but rather by the quality of the contributions. This is an important issue and, as the noble Lord, Lord Patel, said, the noble Baroness introduced this in a very comprehensive way, which was extremely welcome.

The Government are committed to delivering critical services that depend on the reliable supply of medical radioisotopes, to which both noble Lords referred. I agree with the noble Baroness and her reflections on the positive health outcomes, also supported by the noble Lord, Lord Patel. These isotopes support positive health outcomes, both for diagnostics and for therapeutics. I was looking at the figures: in England alone, some 700,000 procedures are carried out using radioisotopes every single year. This figure is expected to increase, not least because of their value in the process.

There are three main uses for medical radioisotopes; each relies on different manufacture to get the desired result. PET-CT scans, primarily used for cancer and cardiovascular diagnostics, use isotopes from a comprehensive network of UK-based cyclotrons. SPECT scanners are mainly used to confirm the cancer stage, to identify blood clots and to assess organ functions. These scanners use isotopes manufactured abroad in reactors; the noble Lord, Lord Patel, drew our attention to this. This is also the case for radioisotopes that are used for therapeutics.

As the noble Lord pointed out when he expressed concerns about delays to treatment and the impact on patients—the point was well made—the UK does not currently manufacture medical radioisotopes in reactors. Instead, we have in place a supply chain with isotope sources from multiple countries to aid resilience. I will come on to the point that the noble Baroness made about when that supply chain is disrupted. This gives us access to a global network of expertise and high-quality medical radioisotopes.

The noble Baroness made a strong case in advocating for the Welsh project ARTHUR, a reactor specifically designed for the purpose of medical radioisotope manufacture. The Minister for Medical Technology and Innovation, Zubir Ahmed MP, recently met Liz Saville Roberts MP to discuss this matter, and I can assure the Committee that the Government are in active discussions about this project. I note the points made about the suitability of the area and the potential benefits of this project. The UK Government have not made a formal assessment of the project at this time but are supportive of any manufacturing capacity that can improve reliable access to medical radioisotopes, as has been called for. A domestic reactor would certainly be a welcome addition to the overall supply.

The noble Baroness understandably highlighted the severe shortage of a specific medical radioisotope in 2024. I agree that this was caused by a global disruption to its manufacture. The underlying issue was that several nuclear reactors used for its manufacture were undergoing critical repair work. As noble Lords can imagine, these repairs are normally planned ahead and co-ordinated to ensure that there is always enough capacity to deliver critical isotopes. However, the safe running of reactors will always determine whether they will be taken offline for repairs. In this instance, critical repair work was identified and meant that multiple reactors were closed down at the same time.

Due to a diligent response from the Department of Health and Social Care, NHS England, industry and the NHS services impacted, I am glad to say that the patient impact from this severe shortage was limited. I am grateful to all those who worked to ensure this. However, it underscores the need for multiple available sources of medical radioisotopes. A Welsh reactor—or perhaps a Scottish one, although I would rather not dwell on the argument around the devolved Governments and locations—could be an important addition to this supplier base.

Also raised were the issues with the supplies for PET-CT scanners earlier this year. I can give an assurance that, when there are specific supply issues, such as the one the noble Baroness referred to that impacted north England and the Midlands, the department works with suppliers to recover supplies and services. We are aware of the difficulties and issues that both noble Lords have raised. I hope that response is of some assistance.

We are working to support services and improve outcomes for patients. The noble Baroness said that the Government should explore long-term solutions, so let me outline some of these actions. First, we are committed to a thriving life sciences sector and the development of high-skilled jobs in that sector. The Government have made up to £520 million available through the life sciences innovative manufacturing fund; that is available for any private manufacturing proposal, including for medical radioisotopes in the UK.

Medical radioisotopes support life-saving services, including for diagnostic tests; this Government are committed to supporting the improvement of these services. Therefore, we have announced £6 billion of additional capital investment over five years across new diagnostic, elective and urgent care capacity. This includes funding to increase capacity for both testing and reporting across community diagnostic centres and hospitals.

In early 2026, which is nearly upon us, the Government will publish their national cancer plan. This will set out how we will improve diagnosis, treatment and waiting times in order to improve outcomes for cancer patients and increase survival rates. UKRI, the UK’s national funding agency for science and research, also supports the overall service delivery and has recently invested £32 million for novel total-body PET-CT scanners. All these interventions will, as I say, improve the situation for patients and improve services.

In conclusion, as the noble Lord and the noble Baroness have called for, this Government are committed to ensuring robust and reliable supplies of medical radioisotopes to deliver critical services. We are supporting the development of manufacturing and delivery capabilities in the UK, where this is appropriate, alongside working closely with international partners and suppliers. We are also committed to the economic and industrial development of the UK science sector. That is why we have made available investment funds that are open for applicants who are looking to expand or improve UK manufacture of medicine and medical technology products. This includes UK-based manufacture of medical radioisotopes or their adaption for diagnostic or therapeutic applications.

[Lord Patel (CB)]

I know that intervening on the Minister is unusual in a short debate, but we are not exactly short of time. I think the Minister said that if we had a reactor, it would be a useful addition. It would not be a useful addition; it is a necessity. She did not define any solid plans—unless I missed them—where the Government have a clear intention to establish a nuclear reactor for producing radioisotopes. There is a promise that we will have good contractual agreements with the supply chain lines that the Minister mentioned—I cannot make the Minister’s speech, but I am asking the question—but those cannot be guaranteed because there are only six reactors in the world and they are more than 50 years old. Maybe the Minister could comment on that.

--- Later in debate ---

[Baroness Merron (Lab)]

I understand the noble Lord’s point. The point I am trying to make is that a supply chain is important. I was indeed careful in my choice of words, not least because, as I mentioned elsewhere in my speech, the Government have not made a formal assessment of, in this case, the ARTHUR project. So I am limited in how far I can go on the most obvious presentation before us today, but I understand the point made by the noble Lord.

I thank the noble Lord, Lord Patel, and the noble Baroness, Lady Bloomfield, for raising this important matter, which is important for the whole of the Government.

Tobacco and Vapes Bill

Baroness Merron Excerpts

Committee stage
Monday 17th November 2025 Grand Committee

I suggest to the Minister that we need a nuanced approach here, not a blanket approach. I very much hope that she will take on board the points that noble Lords have raised in this important debate.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I thank noble Lords for bringing forward these amendments. For the convenience of the Committee, I will speak to them as a group. I am also grateful for noble Lords’ contributions and reflections throughout.

The clauses within Part 6, to which these amendments refer, taken in their totality will ban advertising and sponsorship of tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products. By doing this, it will bring all these products in line with tobacco. There has been—as the noble Baroness, Lady Walmsley, helpfully made reference to—a significant growth in awareness of vaping promotion, with some 55% of all children aged 11 to 17 aware of promotion in shops in 2025, which is up from 37% in 2022. It is unacceptable that children are exposed to vape adverts on the side of buses and in shop windows as they make their way to school or elsewhere. It is also unacceptable that a family going out to watch football could be exposed to vape branding on the kits of players who should be role models to children.

The noble Baroness, Lady Bennett, raised nicotine pouches. There are currently few restrictions on the advertising of these products, and they are highly promoted in shops and on social media. As a demonstration of this, awareness of nicotine pouches has risen from 38% in 2024 to 43% in 2025.

I understand why the noble Baroness, Lady Walmsley, asked about non-nicotine vapes. However, the reality is that non-nicotine vapes may be used as a gateway to nicotine vapes. In addition, nicotine could be manually added to the device. We have to take all that into account and, on that basis—to go directly to her question—we do not plan to include them in a consultation.

The noble Lords, Lord Johnson and Lord Moylan, spoke about the banning of vaping and nicotine products being deliberately branded and advertised to children. That is of course a manifesto commitment. We are doing it, as I have said a number of times, to stop the next generation becoming addicted to nicotine.

We also know that there is strong support among the public for doing this. Measures to restrict vape advertising are supported by some 77% of adults in Great Britain, who are keen to see bans on the advertising and promotion of vapes, so we will not be consulting on the whole matter of advertising. I can say to the noble Baroness, Lady Bennett, that addictive products of the nature she has described should never have been handed out for free. The Bill will address this by ensuring that free samples of these products cannot be given out to adults and children of any age.

The Government have already published a thorough impact assessment of the measures in the Bill, including the effect of the prohibition on the advertising and sponsorship of vaping and nicotine products. I say to the noble Baroness, Lady Fox, that the advertising ban aims to reduce the risk of young people being exposed to vape promotion and advertisements, not the ability of adults to buy vaping products.

I reassure the noble Lord, Lord Howard—and I say this to all noble Lords—that we are committed to helping adult smokers to quit. That is best led by the appropriate health authority, such as the NHS. The noble Lord, Lord Bourne, was right to say, “If you don’t smoke, don’t vape”. We will return to this in a later group, but I can tell him that the Bill allows public health authorities to take certain steps to promote vapes as a means of smoking cessation. That is the right place for this to be.

Further to that, the NHS can provide tailored advice to the individual with the necessary behavioural support. We have invested an additional £70 million in 2025-26 to support local authority-led stop smoking services in England to help people quit smoking, and we will continue to run targeted campaigns to help current smokers quit.

The noble Earl, Lord Howe, asked about an assessment of how the bans will impact businesses, smoking cessation services, et cetera. We will continue to monitor the impact of these changes following implementation.

With that, I hope the noble Lord, Lord Howard, will be able to withdraw Amendment 160.

[Lord Moylan (Con)]

Since the noble Baroness has said so clearly that the purpose of the advertising ban is to prevent information being communicated to children and young people, and that that was a manifesto commitment, why does the ban have to be drawn so widely? Clause 119 has a list of defences that can be advanced for those who are accused of breaching the various preceding clauses on advertising, but none of them says that it is a different matter if the communication is with adults. Is this not drawn far too widely to be justified by her laudable ambition?

[Baroness Merron (Lab)]

I am glad that the noble Lord regards it as a laudable ambition. We will come to exemptions in the next group, and I look forward to doing so.

[Baroness Fox of Buckley (Non-Afl)]

I, too, am slightly confused by this. I was reading something the other day from the DCMS, boasting about the creative industries, and one of the big and most profitable parts of the creative industries in this country is advertising and marketing. It is considered to be something we are proud of. Lots of products have age issues. If you are a cider producer, you have to advertise, but you do not want a six year-old drinking it. We have discussed things such as fizzy drinks, so I appreciate this. This appears to be a blanket catch-all. It does not seem to take up the ways we have learned, in the advertising and marketing world, how, in a society that has children in it at the same time as adults, you can have a sensible restriction on advertising sometimes without depriving everybody of the gain of the advert. NHS information, while useful, is not the same as marketing choice, giving people ideas of the options they might have with vapes, which are not all the same product.

[Baroness Merron (Lab)]

I thank the noble Baroness. This kind of question also comes up in respect of other products: for example, the 9 pm watershed, in terms of the advertisement of high-fat, high-sugar, high-salt foods in order that that advertising is not affecting children and young people. So, this is a constant discussion: that is not a criticism but an observation, of course. What is interesting to me in respect of tobacco is that the evidence found that partial bans are not as effective as a comprehensive ban when it comes to the aim, ambition and intent to reduce tobacco consumption. Similar assumptions can clearly be drawn on vapes. I hope that helps in terms of clarifying the point I am making, even if it may not satisfy the noble Baroness, which I understand.

[Lord Howard of Rising (Con)]

I beg leave to withdraw the amendment.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, in this group of amendments we have seen a logical continuation of our debate on the previous group, since in their various ways these amendments pose the question of what are the appropriate constraints to place around products that are of considerably less concern in a health context than tobacco products. We are back in the realm of deciding what is proportionate and how to secure better clarity and consistency in the operation of the Bill’s advertising and design provisions.

Although he has not been here to speak to it, my noble friend Lord Udny-Lister’s Amendment 161A struck me as a point worth raising. It would protect designers and creative professionals from being criminally liable based on mere suspicion or indirect association because it would work to raise the threshold of proof of intent. One could imagine that in some cases it could be difficult to prove that someone designing an advertisement had reason to suspect that it would be published. In any event, is it right that someone who has been asked by their employer to design a vape advertisement should be criminalised because they know or believe it may be used in some context? I am afraid that the word “draconian” comes to mind.

On my noble friend’s Amendment 161B a very similar thought came to mind. Are the Government really saying that the offence of designing an advertisement for a vape merits a prison sentence? There are mixed messages coming out of the Government at the moment. How should the sentencing provisions in this part of the Bill be read alongside the provisions of the Government’s Sentencing Bill? What is the overall message? The Sentencing Bill will require almost all sentences of less than 12 months to be suspended. On the one hand, the Government are creating imprisonable offences, and on the other, they are saying that people should not actually go to prison, even if they are sentenced to it. At the very least, the Minister needs to explain to the Committee why the sentence on summary conviction is to be different in Scotland than in Northern Ireland, which might have been a point my noble friend Lord Udny-Lister would have made.

Turning to my Amendment 167 and the very well worded amendment, if I may say so, from the Liberal Democrats, the underlying purpose of each is the same, which is to urge the Government to regulate, rather than ban, vape advertisements so that in narrow clinical contexts, such as smoking cessation clinics, they can be deployed for public health purposes. Amendment 168A in the name of my noble friend Lord Howard of Rising has a very similar purpose.

In Amendment 169 I am asking the Government to consider a further exemption for advertisements located discretely in specialist vaping shops. Why not allow that? As my noble friend Lord Moylan has asked in his Amendment 170, why prohibit such specialist shops providing information online subject to suitable age-gating checks? That in turn raises a further question from my noble friend in his Amendment 168. In adult-only environments, why should displaying an advertisement for a vaping product be against the law given that, as we need to keep reminding ourselves, vapes are and will remain legally available for purchase by anyone aged 18 or over? Why are the Government treating vape advertising in exactly the same way as tobacco advertising? What is the justification? Amendment 170A from my noble friend Lord Howard asks that question in a different form. Why should we not allow factual product information to be provided at point of sale in an age-restricted area in suitably licensed premises?

Finally, Amendment 172A from my noble friend Lord Udny-Lister would prevent overreach. It would ensure that brand restrictions target only genuine attempts to promote nicotine or tobacco, not completely unrelated products such as clothing or other merchandise. I think my noble friend has identified an issue that requires clarification from the Government, and I would welcome the Minister’s comments.

[Baroness Merron (Lab)]

I am most grateful to noble Lords for bringing forward this group of amendments, which reference Part 6 provisions, and for the contributions that have been made.

I will start with Amendments 161A and 161B, which are tabled in the name of the noble Lord, Lord Udny-Lister. The current drafting of Clause 114 makes it an offence, when acting in the course of business, to design an advert that would promote a relevant product and be published in the UK. If an organisation knows or has reason to suspect their advert has a promotional purpose or effect and will be published in the UK, it has committed an offence by designing the advert.

I say to the noble Earl, Lord Howe, that the inclusion of “has reason to suspect” is deliberate, not least because it mirrors the approach taken in the existing Tobacco Advertising and Promotion Act. This wording is designed to avoid loopholes and to ensure that those who are involved in the design of ads cannot evade responsibility by claiming ignorance where it is clear from the evidence that they had reason to suspect what they were designing an advert for. I hope the noble Earl will understand that we will, therefore, not seek to weaken existing legislation or allow any uncertainty that could be exploited.

I turn to Amendment 161B. I sympathise with the intention to align penalties across the UK but, of course, it is important that we respect Scotland has a separate criminal justice system. There are maximum penalties for this type of offence; they are fixed in line with the criminal justice system in each jurisdiction. I hope that that is helpful to the noble Earl, Lord Howe.

I turn to Amendment 172A, which was also tabled by the noble Lord, Lord Udny-Lister. It seeks to restrict the scope of the offence of brand sharing. Brand sharing, also known as brand stretching, is a form of indirect advertising and should be seen as such, not least because it promotes the use of a service or product by putting its branding on other products or services or vice versa. The clause is drafted in a manner that already limits the offence that could be created under this power to cases where the purpose or effect is to promote a relevant product. Brand sharing, as defined in the Bill, would be unlikely to capture the types of case about which the noble Lord is concerned in his amendment; it is our view, therefore, that this amendment, as it stands, would introduce unnecessary complexity.

I turn to Amendment 168 in the name of the noble Lord, Lord Moylan. The Bill as drafted takes decisive action to ban the advertising and sponsorship of all vapes and nicotine products, delivering on our clear manifesto commitment to stop vapes being advertised to children—something on which the noble Baroness, Lady Northover, spoke. The ban is essential to creating what we seek: a strong, consistent regulatory environment; and to provide clarity for businesses and enforcement bodies. I can say to the noble Baroness, Lady Walmsley, that guidance will be produced on advertising.

This Bill already includes defences for the limited circumstances in which advertising would be appropriate. As I have said in our debates on earlier groups, we are not considering any other exemptions for adult-only spaces, not least because of the risk of loopholes; these were referred to by the noble Baroness, Lady Northover. However, I take this opportunity to correct a statement that was made in the other place: this prohibition will apply to all advertisements for relevant products, not just those for specific products. In practice, this means that anyone acting in the course of business could commit an offence if they promote a relevant product, whether that is a generic product, a category of products or a specific branded product.

[Lord Moylan (Con)]

I think the noble Baroness has addressed Amendment 170. Does she therefore not share the view of the noble Baroness, Lady Walmsley, which was, as I understood it, that my Amendment 170 is unnecessary because there is nothing in the Bill that prohibits specialist vape retailers communicating on the internet? I would like clarity on that.

[Baroness Merron (Lab)]

Of course; I am going to come on to the point about online advertising.

Amendments 167 and 169, tabled by the noble Lord, Lord Kamall, Amendment 168A, tabled by the noble Lord, Lord Howard, and Amendment 171, tabled by the noble Baroness, Lady Northover, all seek to create exemptions to allow for the promotion of products for the purposes of smoking cessation—something that was also spoken to by the noble Lord, Lord Young. As I mentioned on the previous group, I repeat the assurance to noble Lords that the Bill as drafted will allow certain public authorities to continue to take steps to promote vapes as a means to quit smoking. This is a matter that I will come back to on Report.

The offences in Part 6 apply only to those acting in the course of business. For example, following the passage of the Bill, local stop smoking services will still be able to take steps to promote vapes to smokers as a less harmful alternative. The noble Lord, Lord Young, raised an important question about GPs and pharmacists having such a facility. I assure him that we will be further reviewing whether the Bill provides the necessary approach considering the points that he made.

I also mention something relevant to an earlier group—I may be stepping a little outside of things here, but I remember the noble Baroness, Lady Fox, in particular, making this point. The advertisement offences will not prevent a retailer offering verbal smoking cessation services to their customers. While I am sympathetic to the intention to ensure that vapes remain accessible and visible to adult smokers, there are already strict rules in place for nicotine vape advertising. Under current legislation, it is illegal to advertise nicotine-containing vapes on television, radio, most online platforms and in newspapers and magazines. Companies are not allowed to market a vape as a smoking cessation product or to make medicinal claims about products unless these have been authorised as a medicinal product by the MHRA. As noble Lords have heard me say many times, we believe that promoting smoking cessation is best led by the appropriate health authorities, including the NHS, which can provide tailored advice to the individual with the necessary behavioural support.

I should be clear that all tobacco products are harmful to health, including heated tobacco, which contains tobacco and generates aerosols with carcinogens. The department therefore does not recommend the use of heated tobacco products to quit smoking.

I turn to Amendment 170 from the noble Lord, Lord Moylan—

[Lord Lansley (Con)]

Forgive me for interrupting, but I did not quite follow. Where in the Bill is the reference to the ability to place an advertisement for a product that is authorised as a medicinal product, where it also happens to be a vaping product? I do not know where that is to be found in legislation.

[Baroness Merron (Lab)]

I will be happy to come back to the noble Lord and be precise about that while I am going through the rest. If I do not get the opportunity to do so, I will of course write.

I turn to Amendment 170 from the noble Lord, Lord Moylan, and Amendment 170A from the noble Lord, Lord Howard. I am sympathetic to the intention of ensuring that consumers have the information they need to make a purchase. This was spoken to by not only the noble Lord, Lord Moylan, but the noble Lord, Lord Johnson, and the noble Baroness, Lady Fox. However, Amendment 170 is not necessary because retailers, as I have said, will continue to be able to provide the necessary factual information about products to enable purchases. Amendment 170A is also not necessary because the Bill does not prohibit businesses displaying the categories of information that this amendment refers to, as long as the information is not promotional.

The noble Lords, Lord Johnson and Lord Moylan, referred to online providers. The Bill builds on existing legislation and effectively bans all advertising of relevant products, including online. On the particular point raised by the noble Lord, Lord Johnson, we expect enforcement bodies to take a proportionate approach, as they currently do with the advertising of tobacco products.

The noble Lord, Lord Howard, asked about government engagement. We will continue to engage with independent vaping associations and other vaping businesses, but I remind him and the Committee, as I said probably on day one, that the UK Government are committed to Article 5.3 of the World Health Organization Framework Convention on Tobacco Control, which means the protection of public health policy from the vested interests of the tobacco industry. So I have not met and will not meet British American Tobacco.

I will need to write to the noble Lord, Lord Lansley, and will be glad to do so. I hope this will allow the noble Lord, Lord Howard, to withdraw Amendment 161A.

[Lord Howard of Rising (Con)]

I beg leave to withdraw.

--- Later in debate ---

[Baroness Walmsley (LD)]

My Lords, I will speak first to my Amendment 176. As the noble Lord, Lord Kamall, said, his Amendment 178 does something very similar. As I have often said, policy should be based on evidence, so this amendment seeks to tease out exactly what evidence the Government plan to use when designating a new area as smoke-free.

The Government have already said that their consultation on further smoke-free areas will focus on schools, playgrounds and hospitals. It is fairly clear that areas in and close to schools should be smoke-free, in the same way that local authorities now have powers to prevent the opening of new fast-food outlets near schools because of the health dangers of much of their sales.

However, some playgrounds are very large and it is possible that a parent waiting on a bench for a child, well away from the play equipment, may want to smoke a cigarette—if they are of legal age, of course. Although it would set a bad example, it would be hard to understand the level of risk to the children playing; it would depend how far away they are. As for hospitals, many of them have already designated their grounds as smoke-free, although it has been hard to enforce. Many of us will have seen people smoking outside St Thomas’ Hospital, underneath the “No smoking” sign. Many hospitals have distinct outdoor smoking shelters. The matter is complicated, which is why my amendment probes the Government on the criteria they will use.

On the other hand, Amendments 175 and 179 seek to specify in the Bill the areas that can be designated as smoke-free. This could restrict the Government from acting in other areas in future. Obviously, we want the same rules in all parts of the UK, to save confusion. There are several reasons why the Government should not be limited in this way, and they must bear in mind the different circumstances that prevail in different areas. For example, as the noble Baroness, Lady Bennett, mentioned, there are many children on beaches, and discarded cigarettes are a real litter problem, according to coastal local authorities. As she said, transport hubs may also come into focus, because of the crowded conditions in many of them, especially at certain times of the day such as rush hour. We think the Government need flexibility on this issue. Indeed, somebody might be more affected by second-hand smoke in a transport hub than at the far side of a very large playground, which is why I would like to see an evidence test.

We do not support Amendment 177 in the name of the noble Lord, Lord Udny-Lister, as the Government may want to restrict smoking in uncovered hospitality areas in the future. However, if they do so they will have to explain the reasons why, and we could debate it then. The fact is that the prohibition on smoking in indoor hospitality venues has proved very popular with customers and landlords alike and has certainly not had a damaging effect on footfall or expansion of the sector. The same might apply to uncovered hospitality areas in the future, if they are considered for the ban.

[Baroness Merron (Lab)]

My Lords, as we have heard, all the amendments in this group seek to limit the powers in the Bill to make additional places smoke-free in England. On Amendment 176, tabled by the noble Baroness, Lady Walmsley, we know that passive smoking, whether indoors or outdoors, poses a risk to health. The rule of thumb is: if you can smell cigarette smoke, you are inhaling it. This is particularly important for children, pregnant women and those with pre-existing health conditions such as asthma or heart disease, which may not be visible to the smoker.

However, despite these well-known and very well-evidenced harms, trying to ascribe specific harms to locations is somewhat challenging, as this debate shows. For example, as the noble Baroness, Lady Walmsley, mentioned, in a large children’s play area it is difficult to evidence that exposure to second-hand smoke has caused a specific harm in a specific place. I can assure noble Lords that we are extremely mindful of this. Therefore, the test referred to in the amendment is overly restrictive, technically very difficult to do and not necessary, given the extensive evidence of harm to vulnerable people. It would also likely lead to a scenario in which we are unable to protect the most vulnerable in society from the harms of second-hand smoke.

Similarly, on Amendment 178, tabled by the noble Lord, Lord Kamall, as I mentioned, we know the harms of passive smoking. There is strong indirect evidence but, as I said, it can be difficult to demonstrate this evidence in specific locations. Again, this restrictive test would prevent areas where there are harms of second-hand smoke to children and medically vulnerable people from becoming smoke-free. Furthermore, as this amendment would apply in England only, it would leave England with more restrictive smoke-free provisions than the devolved nations. 

Amendments 175 and 179 were tabled by the noble Lord, Lord Kamall. As we have made clear but I would like to reiterate, in England we plan to consult on extending smoke-free places as and when. In the first instance, it would be to the outdoor areas of schools and early years settings, children’s playgrounds and healthcare settings. I can assure the noble Lord, Lord Kamall, and the noble Baroness, Lady Walmsley, that all proposed smoke-free locations will be subject to consultation both now and into the future and that regulations will be subject to the affirmative procedure. We will be guided by public health advice. The noble Baroness, Lady Bennett, rightly observed that the powers within the Bill allow us to respond to evolving evidence at a later time, particularly where there is evidence of clear harms to children and vulnerable people.

On Amendment 177 tabled by the noble Lord, Lord Udny-Lister, we have made it very clear—I am glad to take the opportunity to do so again, not least because the noble Lord, Lord Kamall, raised this—that outdoor hospitality settings will not be in scope of the consultation on smoke-free places. We fully recognise the balance that is needed to protect the most vulnerable as well as ensure that businesses are not financially impacted. We are confident that we have the balance right in deciding the places, which I have already outlined, on which we plan to consult.

However, the powers in the Bill, as has been observed, allow for additional places to be designated smoke-free in the future, subject to further consultation and parliamentary debate. The landscape may change significantly on tobacco legislation, as it has done over the years. Evidence and attitudes may also shift, again as we have seen over the years, so it is sensible to ensure that the Bill is future-proofed and can respond to evolving evidence. I therefore ask the noble Lord to withdraw this amendment.

[Lord Kamall (Con)]

My Lords, I am grateful to the wide range of noble Lords who spoke on these amendments. These are clearly intended as probing amendments, at this stage, to understand—as the Minister herself agreed—these wide sweeping powers to designate additional spaces as smoke-free. We are grateful because we were concerned about the level of scrutiny there would be. The Minister assured us that there will be consultation and that any changes will be by regulation following the affirmative procedure. We are very grateful for that and that perhaps answers some of the probing amendments that we have in future groups. For now, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Northover (LD)]

My Lords, I will speak to Amendment 186 in my name. I thank my noble friend Lady Walmsley for her support. This amendment would ensure that all pavement licences granted by local authorities are required to be smoke-free. Some noble Lords will remember that this House voted in support of this issue previously, but I will briefly cover the background for those who are less familiar with it.

Pavement licences were introduced during the pandemic when mixing inside was prohibited. They allowed hospitality venues to expand their seating outside at a time of great difficulty. We worked across parties to ensure that these outside spaces, as an extension of inside, should, like the interior areas, be smoke-free to protect the public, including children, and staff. We secured that, despite the familiar refrain that hospitality would go to the wall and so on. Then the industry indeed got to the Minister and the DCLG and, without consulting the Department of Health, this was ended. It is such a familiar story.

Meanwhile, outside areas proved very popular and became permanent fixtures in 2021. At that time, the House voted in favour of the amendment from the noble Lord, Lord Faulkner, regretting that smoke-free pavement licences had not been adopted by the Government. This amendment honours that vote.

When pavement licences were first introduced, there was a requirement that some seating in the designated area was smoke-free. However, unless outside spaces are vast—we do not expect that on a pavement—having smoking and non-smoking tables next to each other means that everyone experiences second-hand smoke exposure due to drift.

The LGA backed our campaign to make all these areas smoke-free. Some councils decided that they would make the spaces being smoke-free a requirement of pavement licences, which was perfectly acceptable within the regulations, such that there was no requirement to have a smoking section. So far, 11 councils have introduced 100% smoke-free conditions in pavement seating. This includes cities such as Liverpool, Manchester and Newcastle. Evidence from these local authorities shows that the scheme is popular with customers and businesses alike, protecting public health without having adverse economic impacts.

There is no risk-free level of exposure to second-hand smoke. Second-hand smoke is an irritant for people struggling with asthma or other lung conditions, and associated health effects from second-hand smoke include stroke, lung cancer and heart disease. I hope that hospitality settings are included in the consultation for smoke-free extensions for the Bill. Polling shows that 40% of people said that they would be more likely to visit pubs and restaurants if smoking was banned in outdoor seating areas.

Hospitality is an important sector of our economy, but the notion that it is somehow economically dependent on the continued consumption of tobacco and allowing smoking in outside spaces requires further examination of the evidence. These arguments were made when public places were made smoke-free in the first place. Now, few people could contemplate pubs and restaurants once more being full of cigarette smoke. All the same arguments were made about banning smoking in public places and that places would go under—not so. In fact, the debate helped encourage people to give up, as opposed to smoking more at home. Making pavement licences smoke-free, which has proved such a success in many areas, feels like a step in the right direction.

I will comment on other amendments in this group. Amendment 180, regarding cigar lounges, points to an interesting case. Where we make exceptions and create loopholes, they have the potential to be exploited. Following the powerful speech of the noble Baroness, Lady Ramsey, it seems that there has been a very liberal interpretation of the notion of “sampling” that goes beyond what Parliament intended in the 2000s. She pointed to the real health consequences of cigar smoking and the potential risk to staff. I point noble Lords to what the NIH—the National Institutes of Health—and the National Cancer Institute say on this:

“Yes. Cigar smoke … contains toxic and cancer-causing chemicals that are harmful to both smokers and nonsmokers. Cigar smoke is possibly more toxic than cigarette smoke … there is more … tar in cigars than in cigarettes”.


They say that there is no safe use. There are higher rates of lung cancer, coronary heart disease and lung disease than among those who do not smoke, and similar levels of oral cancer and cancer of the oesophagus as for cigarette smokers. Anybody can look this up for themselves; I suggest that, in terms of there being “no risk”, noble Lords should do so. We should do nothing to create loopholes in this Bill, and I look forward to hearing what the Minister says about that.

The noble Lord, Lord Kamall, and the noble Earl, Lord Howe, have challenged the proposition that Clause 136 stand part of the Bill. I listened with great interest to the discussion on why they wanted to probe smoking for artistic purposes. Of course, it used to be the case that smoking was a mainstay in films—I think of Humphrey Bogart smoking a cigarette in “Casablanca”, looking very cool with Ingrid Bergman melting before him. I would welcome hearing from the Minister what the Government plan to do in relation to this, because it came across as something that was very cool. We also do not want non-smoking actors to be led into a smoking habit. We hear about instances of that, where actors were not addicted but became addicted as a result of their roles. I know that the National Theatre has a smoke-free policy and that there are alternatives to smoking tobacco that can be used to portray it.

We know also that the depictions of smoking and vaping in the media increase the chance that young people will take up the habit, regardless of whether it is a positive or negative depiction. I realise that noble Lords are simply probing to elucidate what the Government are planning, and I look forward to hearing what the Minister says, but I also hope that the Minister is sympathetic to my Amendment 186. I also look forward to what she says in relation to the amendment from the noble Baroness, Lady Ramsey.

[Baroness Merron (Lab)]

My Lords, the amendments in this group seek to change the detail of exemptions and powers on smoke-free places. I am grateful both for the debate and the amendments, which raise a number of issues.

I start with the amendment introduced by my noble friend Lady Ramsey on behalf of my noble friend Lord Faulkner, who tabled it. It seeks to remove the existing exemption that allows individuals to sample cigars and pipe tobacco indoors in an enclosed and ventilated area in a specialist tobacconist. This amendment was also spoken to, although in a different way, by the noble Lords, Lord Johnson, Lord Murray and Lord Strathcarron. Tobacco is, as I have said, a uniquely harmful product. I sympathise with the aims of the amendment and agree with the intention. However, specialist tobacconists, as we have heard in the debate, are currently exempt because of the specialist nature of their trade. These businesses make up a very small percentage of the market in the UK.

I can assure my noble friend Lady Ramsey that there are a number of restrictions to the current exemption. For example, the sampling area is legally required to be enclosed, clearly signed and appropriately ventilated to prevent smoke spreading to non-smoking areas. Other tobacco products such as cigarettes cannot be sampled. I was interested to hear the example that my noble friend Lady Ramsey brought before the Committee. I know she will understand that I cannot comment on very specific circumstances, but this may or may not be a matter for enforcement. I am sure that my noble friend will look into that further.

It is important that the Bill balances the public health aims within it while ensuring that small and medium-sized businesses are not unnecessarily financially impacted. Ultimately, given our ambition to prevent future generations taking up smoking, we anticipate, as we have said in previous groups, that in the long term specialist tobacconists will have to pivot their business models. Given this, we expect the exemption currently in place, which we are not seeking to change, to be used less and less over time. I give the assurance that we will continue to monitor this niche market to ensure there is not a targeting of young people or an exploitation of the exemption. Of course, as this exemption is in regulations, it is possible to review this in the future, if required.

The noble Lord, Lord Strathcarron, asked about impact assessments. Any further impact assessments that are required will be prepared in advance of any legislation which is the normal process where there could be economic impacts. The impact assessments will be reviewed by the regulatory policy committee—again, in accordance with normal practice.

The noble Lord, Lord Kamall, and the noble Earl, Lord Howe, have indicated that they oppose Clause 136 standing part of the Bill. The clause recasts an existing regulation-making power that was found in the Health Act 2006. It allows the Secretary of State to make regulations permitting performers in England to smoke during a performance. The intention of the clause is to provide simplification and offer greater consistency with the Bill’s other provision. In practice, it is our assessment that this will not make a real difference, which I know is of concern to the noble Earl.

Terminally Ill Adults (End of Life) Bill

Baroness Merron Excerpts

Committee stage
Friday 14th November 2025 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, this is the first debate in Committee on this important Bill so I hope that the Committee will allow me to take a minute or two to set out the approach of the Official Opposition. As my noble friend Lord Kamall and I said at Second Reading, the Official Opposition have no collective view on this Bill. Although each Member of the Opposition Front Bench will have their own view on the Bill, we will support noble Lords across the House in their scrutiny of the Bill. We will also table a small number of additional amendments where we feel that parts of the Bill need probing further. We will not seek to delay the passage of the Bill, nor will we seek to hold up progress in Committee. Instead, we will seriously engage in detailed scrutiny of the Bill so that we can collectively deliver the best possible piece of legislation.

In that regard, I respectfully pay tribute to the noble and learned Lord, Lord Falconer of Thoroton, for demonstrating his openness to improving the Bill already by tabling amendments that we hope to get to today and which reflect concerns that have been raised by noble Lords. I speak for all my colleagues on the Opposition Front Bench when I say that I look forward to working with him to ensure that we send a better Bill back to the other place.

The amendments in this group relate to the territorial extent of the Bill. My noble friend Lady Coffey is seeking to remove references to Wales in the Bill so that it would apply only to England. While I am not entirely persuaded that making this an England-only Bill is necessary per se, these amendments raise important questions about devolution. The core question for the noble and learned Lord, Lord Falconer of Thoroton, is why the Bill does not apply to the whole of the United Kingdom on the one hand or only to England on the other.

At the heart of this is, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said—although various Acts of Parliament may put us to sleep, a speech by the noble and learned Lord never does; I was listening very carefully—that these amendments speak to the devolution settlement that we work with and the inconsistencies and confusions of that settlement. The noble and learned Lord used the word “complexity”. It is extremely complex. In this area, we have the problem that criminal law is not devolved to Wales whereas health is devolved. To pick up the point made by the noble and learned Lord, with which I respectfully agree, declaring the appropriate interest, Wales should not be regarded as inferior to Scotland. That is a point of general application.

The Scottish Parliament, as noble Lords know, is currently considering its own legislation on this topic. I hope that noble Lords have picked up that the Scottish Bill is significantly different in key ways—most markedly in the definition of terminal illness. In Scotland, it lacks the “six months to live” test which, whatever view we take, is at the heart of the Bill before us. The definition of terminal illness in the Scottish Bill is:

“For the purposes of this Act, a person is terminally ill if they have an advanced and progressive disease, illness or condition from which they are unable to recover and that can reasonably be expected to cause their premature death”.


I am not quite sure about “premature” in that context in all cases, but that is what the text says.

Leaving aside the point that those resident in one part of the United Kingdom will therefore have different rights to assistance under the law from those in another region of the United Kingdom should both Bills pass, I see the point that my noble friend Lady Coffey is making. If the people of Scotland may choose whether to have a law for terminally ill adults who wish to end their lives, why—I ask rhetorically, so to speak, looking forward to the response of the noble and learned Lord, Lord Falconer—should people in Wales not have the same choice? This is the key question that the noble and learned Lord has been presented with by this group of amendments.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I welcome the opening comments of the noble Lord, Lord Wolfson, which were helpful. I thank noble Lords for this debate.

I want to set out some points about the role of government Ministers. As noble Lords are well aware, the Government remain neutral on the principle of assisted dying and on the passage of this Bill. Whether the law in this area should change is absolutely and rightly a matter for Parliament. I and my noble friend Lady Levitt will speak in Committee as government Ministers responsible for ensuring that the Bill, if passed, is legally robust, effective and workable. To that end, I will not be providing a government view on the merits of proposed changes. Those are rightly a matter for noble Lords to decide. Throughout Committee, my remarks will focus only on amendments where the Government have significant workability concerns. I hope that this will be of assistance to noble Lords in their consideration of amendments. Where no comment is made, any workability concerns are less significant. The Government are unable to confirm at this stage that the current drafting of those amendments is fully workable, effective or enforceable.

Turning to the amendments in this group—

--- Later in debate ---

[Baroness Merron (Lab)]

The noble Lord will be aware, as will your Lordships’ House generally, that Ministers have been absolutely consistent in setting out the right and proper role of officials, as is usual for a Private Member’s Bill. I will refer to that shortly. Also, if noble Lords have individual concerns, they are welcome to raise them with me.

The amendments in this group seek to restrict the eligibility criteria to apply to individuals in England only, rather than in England and Wales, as at present. These amendments would have minimal legal effect unless they are coupled with amendments to later clauses. Clause 1 is largely declaratory. This group of amendments would conflict with later operative provisions in the Bill unless consistent amendments are made to later provisions. 

I will pick up a few of the points that have been raised. The noble Baroness, Lady Coffey, raised a number of points about engagement and I would be pleased to write to her further. I have done my very best to ensure that all the questions that she laid have been answered. I hope she will accept my apologies if that is not the case, but I have certainly endeavoured to do so. I will also review points made by other noble Lords in this debate, where they are relevant to the Government.

The noble Baroness, Lady Smith, raised a question regarding legislative consent Motions. As would be expected, UK government officials have discussed these matters with Welsh government officials, and the management of the legislative consent process in the Senedd is, of course, a matter for the Welsh Government.

In closing, I will make a few general comments about engagement.

[Baroness Smith of Llanfaes (PC)]

On the LCM point, the Legislation, Justice and Constitution Committee in the Senedd has made a statement about it not having received enough information on the conversations between the UK and Welsh Governments about why certain clauses do not engage with the LCM process. Can the Minister respond directly to that point about why this information has not been shared with the Senedd?

[Baroness Merron (Lab)]

I will certainly look into the matter that the noble Baroness raised and would be pleased to write to her. However, the first point I wanted to make here was about engagement with the Welsh Government. Of course, Ministers themselves have not met with the Welsh Government in relation to this Bill, as again would be expected, as it is not a government Bill. I know that the sponsors have met with the Welsh Government to discuss the policy intent and to negotiate which clauses require a legislative consent Motion.

The sponsors are also leading engagement with Scotland and Northern Ireland while—on the point made earlier by the noble Lord, Lord Harper, and others—UK government officials are providing technical support to support the sponsor and are engaging with Welsh government officials to discuss technical matters in relation to clauses that require a legislative consent Motion or those to which Wales has requested that further changes are made. Officials have regular meetings; they can be as frequent as weekly, as was the case at some points over the last few months.

[Baroness Grey-Thompson (CB)]

The noble Baroness mentioned that the role of Ministers is to ensure that the Bill is legally robust, effective and workable, but surely safety has to play some part in that as well.

[Baroness Merron (Lab)]

I am sure it would be expected that safety is absolutely paramount. The point I am making—and I look forward to hearing from my noble and learned friend—is that our position in government here is not to deal with matters of policy. As I have said, we are restricted to areas to which any Government would be restricted.

We will absolutely work with the Welsh Government, NHS England and the NHS in Wales to understand the impact of any changes to the law and the provision of healthcare services in Wales, during the coming stages of the Bill.

[Lord Falconer of Thoroton (Lab)]

My Lords, I make a declaration of interest: I have an assistant who is funded by Mr Bernard Lewis and who helps me on this Bill. I make a declaration that Dignity in Dying paid for the printing of the material that was circulated to Peers in my name before this process commenced.

I compliment the noble Baroness, Lady Coffey, on the short way that she introduced the important issue. I very much hope that I can put to rest most of the misconceptions that were expressed during this debate.

As everybody agrees, criminal law is not devolved to the Welsh Senedd. Therefore, any change in criminal law has to come from the UK Parliament. You cannot proceed with assisted dying without changing the criminal law. Therefore, the UK Parliament has to provide a legislative change for that.

Healthcare is rightly devolved to the Welsh Ministers and the Senedd. The Bill makes provision in England for Ministers to produce regulations on how assisted dying will be implemented and regulated in England. Clause 42 requires Ministers to produce such regulations. It is wrong, as part of the devolution settlement, to require Welsh Ministers who are responsible for health in Wales to do that. It is for the Welsh Government to decide what provision to make. Unlike Clause 41, which relates to England, Welsh Ministers are given the option to introduce such regulations as they see fit. Those regulations will permit the assisted dying process to be introduced in Wales, in the National Health Service, and for Welsh Ministers and the Welsh Government to provide whatever provision for it in regulations that they see fit.

The noble Lord, Lord Wolfson, asked why we are legislating for England and Wales but not Scotland at the same time. It is because we are doing exactly what the noble Lord, Lord Gove, asked me to do—and I am so glad he did—which is to respect the devolution settlement. Will the noble Lord let me finish? Then I will come back to him.

The way this structure works is that, first, we in this Parliament determine whether the criminal law should be changed. Secondly, the Welsh Government are given the power to introduce regulations. That power should normally be given to Welsh Ministers by an Act of the Senedd. Therefore, a legislative consent Motion has been proffered by the Welsh Government for the Senedd to decide whether it would be willing to give us consent to legislate in an area that would normally be legislated for in the Senedd.

The LCM—legislative consent Motion—in the Welsh Senedd covers the following. I give these details for noble Lords to consider them at their leisure: Clause 40, which gives Welsh Ministers power to issue guidance; Clause 42, which gives Welsh Ministers power to regulate how this is to be introduced in the health service in Wales and with what regulations; Clause 51, which gives the Welsh Government power to talk about and make regulations about the Welsh language; Clause 54, which gives them a general power to make regulations; and Clause 58, which gives the Welsh Ministers and the Welsh Government power to introduce certain of the provisions.

The sponsor in the other place and I have discussed this arrangement with the Welsh Government, and by that I mean Welsh Ministers and Welsh officials. We have done what the Welsh Government would wish us to do to respect devolution. We have taken these powers in the Bill, subject to Parliament, so that there is not a position where, after this Bill is passed, Welsh Ministers lack the power to introduce regulations if they choose to do so.

I have listened to this torrent of points about Wales saying it has not been thought out. I say with suitable humility that we have thought it out and sought to reflect what good devolution practice would require. I do not invite people to come back, but please think about what I have said and consider—

--- Later in debate ---

[Baroness Coffey (Con)]

I would be grateful if any advice that has been given to the noble and learned Lord by officials is shared with the Committee. It is helpful, when determining legislation, to understand that, and it would be especially helpful if the Government, who have said they are getting involved only on legality and practicality, were to express their view. They will not even tell the Welsh Government what their view is, and that is very concerning.

[Baroness Merron (Lab)]

My Lords, I just emphasise my previous comments. I think it would be extremely helpful for this debate if I were to write to the noble Baroness setting it all out as she requires, following my previous Answers to Written Questions that have been laid.

[Baroness Coffey (Con)]

I hope that the department will take a better attitude in determining things such as freedom of information requests. We have already had from the Cabinet Office whether it is now in the public interest to declare information that it holds. I hope the Government—I can see that the Deputy Chief Whip is on the Front Bench—will take this away, because it is a serious matter. This is one of the most important Bills that we will consider in this Parliament, and it is important that we have transparency and a full understanding that is shared across the Chamber. With that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Kennedy of Southwark (Lab Co-op)]

As a final point, I agree with the noble Lord. As Government Chief Whip, I take my job very seriously. I love the House, and I want to do this properly. I assure the Committee that I hear noble Lords’ sentiments. I know how long it has taken on the Bill. I know that views are sincerely held on both sides. I will work in the usual channels to deal with these matters.

[Baroness Merron (Lab)]

My Lords, I am grateful for the insightful contributions that have been made to this debate. I will be very concise on the point. In summary, it is our view that workability concerns are less significant, although the Government are unable to confirm at this stage that the current drafting is fully workable, effective or enforceable. As noble Lords will understand, the amendment has not had technical drafting support from officials.

On this point, if the amendment is passed in isolation, it is likely to have minimal legal effect, as Clause 1 is essentially declaratory rather than operative. The remainder of the Bill would refer to the capacity to make a decision, which, as noble Lords will be aware from the Bill, is to be read in accordance with the Mental Capacity Act 2005.

I anticipate coming later to discussions on amendments to Clause 3, as noble Lords have referred to, as those amendments would change the operation of the Bill. I will comment on proposals when we come to the relevant debate. These issues are, of course, rightly a matter for noble Lords to consider, deciding which test is to be used.

[Lord Falconer of Thoroton (Lab)]

I will deal first with the central issue in this debate, which is the amendment from the noble Baroness, Lady Finlay. The wording currently mentions:

“A terminally ill person in England or Wales who … has the capacity to make a decision”.


The noble Baroness proposes that “capacity” should be changed to “ability”. From what the noble Lord, Lord Wolfson, says, I understand that we should read that with Amendment 115, although there is another amendment that the noble Baroness proposes in relation to Clause 3. But I accept what the noble Lord says in relation to Amendment 2.

With the greatest respect to the noble Baroness, Lady Finlay, she is suggesting that we remove “capacity” and replace it with “ability”. The noble Lord, Lord Sandhurst, put his finger on it when he said that “capacity” is well known to the law. You could not possibly have a Bill that did not refer to capacity because what it means, in the eyes of the law and of people in practice, is the ability to make the decision. As the noble Lord, Lord Blencathra, said, if you do not have capacity, you cannot make the decision. That applies right across the doings of human beings, and the law recognises that. If, therefore, you replace “capacity”—

Goodmayes Hospital Mental Health Facility

Baroness Merron Excerpts

Thursday 13th November 2025 Lords Chamber

[Baroness Berger]

To ask His Majesty’s Government what assessment they have made of failings at Goodmayes Hospital mental health facility.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, what happened at Goodmayes Hospital was totally unacceptable and I offer my sincere condolences to Alice Figueiredo’s family and loved ones, who have suffered an unimaginable loss. The trust failed in its basic responsibilities to Alice, and I expect—and we are working to ensure—that it will prioritise the safety of its services. I understand that the trust has taken steps to improve services and reduce risk, including changes to ward environments, better training in suicide prevention and investment in recruitment and retention.

[Baroness Berger (Lab)]

I thank the Minister. It was back in July of 2015 that Alice Figueiredo took her own life using a bin bag from a shared bathroom. She was just 22 years old. Recently leaked documents reveal that, just four months later, another young woman from the same ward attempted to harm herself in an almost identical manner. However, these are not isolated incidents. In 2023, three women died in a Priory psychiatric hospital within two months. I ask my noble friend the Minister: what are the Government doing to ensure that therapeutic care is provided, and lessons are really learnt, so that we do not see any further tragic loss of life from any aspect of the mental health in-patient estate?

[Baroness Merron (Lab)]

I am grateful to my noble friend for raising this in this way. National guidance is being developed, which is expected soon—in January—on plastic bag use in mental health settings. The Thirlwall inquiry has also recently reviewed progress against the important recommendations of the report of Professor Williams, which were very much addressed at the role of healthcare regulators of NHS bodies and the CPS. In addition, the NHS national oversight framework now gives a transparent assessment of the performance of every trust in England, which means that those with the greatest challenges or concerns will receive enhanced support. In addition, it means that the CQC, as we move it to a new intelligence-led model, is able to conduct rapid response inspections where concerns are identified, so that we can get on top of problems before they produce the tragic consequences my noble friend refers to.

[Baroness Murphy (CB)]

My Lords, would the Minister agree with me that, while it is 10 years since Alice Figueiredo died, we know that resources in mental health services in-patient units—in terms of human resources particularly, but the number of beds they have access to as well—have deteriorated dramatically? We heard very potent evidence during the passage of the Mental Health Bill this year of the serious consequences that have arisen from this. What are we going to do to improve the quality and quantity of resources available to mental health units, so that occurrences like this do not recur?

[Baroness Merron (Lab)]

As the noble Baroness will be aware, I take a broader approach. The current in-patient model is totally outdated and cannot address adequately the inherent risks in the mental health in-patient system, so we have to move to new models of care which are integrated in the community. Those changes will be made as part of the 10-year plan. Importantly for me, that will mean a new era of transparency as well as that rigorous focus on patient safety and care and also hearing and acting on patient and staff voices.

[Lord Scriven (LD)]

My Lords, from these Benches we also send our condolences to Alice’s family and loved ones. Considering that the judge noted that North East London NHS Foundation Trust’s finances were in an “absolutely parlous state”, what assessment have the Government made of the direct link between severe financial distress in NHS mental health trusts and the ability to maintain fundamental patient safety standards, such as ensuring rapid environmental de-escalation and adequate staffing levels?

[Baroness Merron (Lab)]

Of course, these matters are extremely important. On the specific trust, I am sure the noble Lord will be aware that there are particularly unacceptable issues that have been happening there. I gave the Answer straight off to my noble friend that it is in fact totally unacceptable. Looking to the future, following this terrible tragedy, the trust has replaced its leadership and is making improvements to services. The most recent CQC inspection found that services were well led and that they have improved. However, acute adult wards remain in the category of requiring improvement, as does its overall rating. I assure the noble Lord that we are continuing to work with the trust to raise its game.

[Baroness Blackwood of North Oxford (Con)]

My Lords, I am sure the whole House will join in sending condolences. I am pleased that the Minister identified improving the performance at the CQC as an important step in preventing these tragedies from happening in the first place. She will know that Penny Dash reviewed the performance of the CQC and made a number of recommendations particularly relevant to mental health providers. Some progress has been made against that, including establishing a chief inspector for mental health, but there are still steps that need to be taken. The single assessment framework is at the moment still too input heavy and inadequately addresses outcomes in mental health. There are still expertise gaps and recruitment is challenging, and there are backlogs in risk, with persistent delays in reinspections for high-risk mental units. Can the Minister say, given today’s outcome and discussion, what steps she will take to address these very serious issues?

[Baroness Merron (Lab)]

These are very serious issues, and we continue to work on them. We are also very grateful to the Health Services Safety Investigations Body, whose reports highlight extremely important concerns and safety recommendations, with an aim to help us improve in-patient mental health services. Therefore, I can say to the noble Baroness that we are in the process of formally responding to those recommendations made within this report, in addition to the changes I have referred to. As the Mental Health Minister, I am invested in making sure that we continue to drive forward improvements to patient safety and accountability.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, given the testimony presented by my noble friend Lady Berger, what assurances can my noble friend the Minister provide to your Lordships’ House to underpin the Mental Health Act by way of financial spend, to ensure that it is protected for mental health services to deal with all the challenges that have happened over the last number of years and into the future?

[Baroness Merron (Lab)]

The Mental Health Bill, which is, I hope, within touching distance of Royal Assent, is absolutely crucial. It is a reform of an Act which was 41 years old; it will undoubtedly be crucial. I am grateful to many noble Lords for their participation in getting us to the right place. It will deliver on our government commitment to modernise the legislation. I hope my noble friend is aware that implementation is absolutely key, but there are rightly a number of points within the Bill—which I hope will become an Act—which will take effect only when services are in the right place. It would be wrong to do so without it.

[Lord Kamall (Con)]

My Lords, the incident at Goodmayes Hospital, and others raised by the noble Baroness, Lady Berger, such as the tragic case of Kate Szymankiewicz after her daughter’s death at Huntercombe Hospital in 2022, all raise profound concerns about the treatment of vulnerable patients. Families have described the care that their loved ones received as cruel and more akin to the treatment of prisoners than that of patients. The Minister has spoken of guidance, regulation and new models. Given all these concerns in hospitals such as Goodmayes and Huntercombehlh, I ask the Minister: what conversations is the department having with trusts and ICBs to instil a culture where patients are treated with compassion and dignity and, where it is safe, patients have proper access to their families?

[Baroness Merron (Lab)]

That is absolutely at the core. I will just say, as an example on this particular tragic case, that NHS England still meets regularly with the trust, and the last meeting took place two weeks ago—it conducted a mid-year review. There is also a recommendation for a memorandum of understanding on investigating healthcare incidents where there is suspected criminal activity, which is something we have really got to consider. That will mean that there can be action following incidents such as this, where there is reasonable suspicion. Again, having a handle on it, monitoring it, keeping accountability and having the guidance are key to prevention as well as improvement after these terrible and tragic events.

Learning Disabilities Mortality Review Reports

Baroness Merron Excerpts

Thursday 13th November 2025 Lords Chamber

[Lord Scriven]

To ask His Majesty’s Government what assessment they have made of the effectiveness of learning disabilities mortality review (LeDeR) reports in improving life outcomes for people with learning disabilities.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, we are committed to reducing the health inequalities faced by people with a learning disability and autistic people. Through our 10-year health plan, we are working to improve access to, and quality of, care, delivering holistic, place-based support. LeDeR annual reports support this aim by compiling insights from local reviews into the deaths of people with a learning disability and autistic people. These insights help ICBs and providers to make improvements to care.

[Lord Scriven (LD)]

As the Minister will know, the learning disabilities mortality review was commissioned a decade ago, yet people with learning disabilities still die more than 20 years younger than the general population, and 42% of those deaths are avoidable—twice the rate of the general population—so it is evident that the LeDeR process is not creating the systematic changes required. With that in mind, will the Minister commit to meeting me and a small group of people to explore what new enforceable systems are required to end these tragic and unacceptable early deaths?

[Baroness Merron (Lab)]

These are indeed tragic deaths, and avoidable in a number of cases, as the noble Lord rightly says. I can do better than agree to meet him and his colleagues—I have already got agreement from Minister Zubir Ahmed, who is responsible for this area and will be very pleased to meet them.

[Baroness Finlay of Llandaff (CB)]

My Lords, will the Government commit to working further with the National Mental Capacity Forum? One of the leads that comes out in this report is a failure to implement adequately, particularly in giving support to people. Parents are often very important in providing support to a person with learning difficulties, but when that person is an adult they can feel excluded, and they are often very worried as to what will happen after they have died and the person remains alive.

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[Baroness Merron (Lab)]

I understand the point that the noble Baroness makes—it is quite right. We will continue to take account of and work to support parents and those they care for in the way that she describes. Certainly, I will also discuss with the Minister continuing the work with the organisation to which she refers.

[Lord Addington (LD)]

My Lords, to slightly widen the Question, would the Minister look at the fact that anybody who has a communication problem has historically had very bad results, compared with the rest of the population, when dealing with the National Health Service? Those with a hearing impairment would be a classic example. Will the Government have a good look across the whole spectrum of those who have some form of communication difficulty and try to get those medical professionals briefed in different forms of communication for that very important interview?

[Baroness Merron (Lab)]

Again, I certainly accept the important points that the noble Lord is making. It is unacceptable that there are health inequalities and poorer life outcomes. Indeed, action could be taken. That is why our 10-year health plan recognises these inequalities and identifies particularly those with disabilities as a priority group for more of that holistic, ongoing support. Key to that will be the development of neighbourhood services, where such groups will be prioritised.

[Lord Kamall (Con)]

My Lords, I thank the noble Lord, Lord Scriven, for shining a light on this really important issue and for repeating the stat that people with learning disabilities and autism in England die almost 20 years younger than the rest of the population. That in itself is shocking, whatever your views.

The charity Mencap has cited a number of barriers that are stopping people with learning disabilities getting good-quality healthcare. These include failures to recognise that a person with a learning disability is unwell and staff having little understanding about learning disabilities in themselves. Could the Minister update the House on what specific steps the Government are taking, and with which partners they are speaking, to address these concerns?

[Baroness Merron (Lab)]

It bears repeating that it is shocking that people are dying on average up to 20 years earlier. As I have said, that is unacceptable. We work very closely with Mencap and other organisations, but what we are doing already is, for example, to the point that the noble Lord raised, improving identification of people with a learning disability on GP registers. In particular, a reasonable adjustment digital flag is being implemented in care records to make sure that support is appropriately tailored. In other words, if we do not know who people are and where they are, we cannot provide the support. That is an unacceptable reason.

[The Lord Bishop of London]

My Lords—

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[The Lord Bishop of London]

I thank the noble Lord for giving way.

My Lords, according to the learning disabilities mortality review of adults with a learning disability who died in 2023, 25.6% had a care package that did not meet their needs. We know that local authorities continue to face significant challenges to providing adult social care services. Can the Minister say what action the Government are taking to support local authorities as they respond to more complex needs to make sure that every person, including those with learning disabilities, has the correct care plan?

[Baroness Merron (Lab)]

As the right reverend Prelate says—or is it the most reverend Primate?

[Noble Lords]

Nearly!

[Baroness Merron (Lab)]

I am sure that all this will be clarified—but I will be delighted to change my reference. Indeed, this is extremely important, which is why we have a learning disability improvement standard to support NHS trusts, why each ICB has an executive lead on a learning disability and autism and why, among other things, we are rolling out the Oliver McGowan mandatory training on learning disability and autism.

[Lord Blunkett (Lab)]

My Lords, I was not sure who I was giving way to, but I am glad that God is on my side. Does my noble friend agree that, as part of that neighbourhood approach, two things should happen? The first is joined-up services, including good training for support workers where supported housing is concerned. Secondly, the major changes in abolishing NHS England should retain services at place level, rather than have the bureaucrats overseeing them.

[Baroness Merron (Lab)]

I agree with the points that my noble friend raises. Indeed, local provision is the responsibility of local trusts. I assure him that a huge part of our work is about improving care pathways and seeing people as a whole person. Part of the failing previously, I think, has been not to see those with learning disabilities and/or autism as whole people with a range of needs, just like anyone else, with those needs being specific to them. Certainly, moving from hospital to community under the 10-year plan will be a great assistance in that.

[Lord Sterling of Plaistow (Con)]

My Lords, everybody knows that this subject is dear to the Minister’s heart but, from my experience over many years, the workforce gets very nervous of having disabled people working with them. Employers and other people will give support, but the employees themselves have to feel comfortable with having disabled people working alongside them. Is the Minister able to do something about that?

[Baroness Merron (Lab)]

The noble Lord makes good points and I am glad that he does so. I have just had a word with the Minister from the DWP, who has confirmed—I am sure that the noble Lord will welcome this—that the DWP is working with employers on this. I can also say that, among staff generally, over 3 million people have completed the first part of the Oliver McGowan mandatory training, which is the Government’s preferred package. I am sure—in fact, I know—that that training is making a considerable difference in meeting the point that the noble Lord raises.

[Baroness Fraser of Craigmaddie (Con)]

My Lords, one of the problems the Minister has talked about in developing pathways is identification and data sharing. Could she be specific about the improvements that are being made within the 10-year plan to ensure that people with various learning disabilities—it is a huge umbrella term—are better identified and that that identification is shared across different health and care services?

[Baroness Merron (Lab)]

First, the learning disability improvement standard supports trusts in setting out the guidance on safe and—I emphasise—personalised high-quality care provision as a general umbrella, but specifically the reasonable adjustment digital flag is going on to care records, which makes sure that people receive the right tailored care. For example, by improving the identification of those with a learning disability on GP registers, which I think is key, we are promoting an uptake of annual health checks, which are absolutely vital for identifying undetected conditions early. That means that there can be health action plans following these checks.

Tobacco and Vapes Bill

Baroness Merron Excerpts

Committee stage
Thursday 13th November 2025 Grand Committee

Finally, my noble friend Lord Murray’s Amendment 216 takes the argument a little further. As he explained, it would provide for a hard stop on key sections of the Act—one that a future Government could override, but only after demonstrating what the impact of the Act and any associated regulations has been. With that assessment, informed by a comprehensive consultation exercise and a review of the evidence, this amendment complements the review provisions that I have proposed; I hope that the Minister will look at it constructively.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I am most grateful for the discussion that we have had today on this group of amendments.

Let me start by turning to Amendment 189 in the name of the noble Lord, Lord Kamall, which would require the Secretary of State to publish a review; it picks up on the points that the noble Earl, Lord Howe, just made. I can say, as I have said on previous days in Committee, that the Government will assess the implementation of the Act. This is completely consistent with best practice for primary legislation and for measures implemented by secondary legislation; the department will, of course, publish post-implementation reviews as appropriate.

Similarly, I turn to Amendments 195 and 196 in the name of the noble Earl, Lord Russell, which would require the Secretary of State to publish two reviews on the operational impact of the Bill. These would need to be published when the first group of individuals impacted by the smoke-free generation policy turned 21, then 25. I hope that the noble Earl will be pleased to hear that I am glad to agree with at least the principles behind the amendments. It is crucial that the Government review the impact of any legislation—we are keen to do so—but we need adequate time for policies to be implemented and for their impact to be realised before undertaking a review. As I have said, we have discussed this matter at some length previously.

I agree with noble Lords that we must monitor the effectiveness of our policies in reducing smoking rates and narrowing health inequalities. We have good data on smoking prevalence and differences between groups through sources such as the ONS annual population survey. Also, the department actively monitors uptake and outcomes of our smoking cessation programmes through NHS England data. This allows us to adapt and target our interventions. It also demonstrates how these services can contribute significantly to reducing smoking and addressing health inequalities. We will continue to monitor this data closely as measures are brought in by the Bill. I refer the noble Earl, Lord Russell, to HMRC estimates on the size of the illicit market. These estimates are made through tobacco duty gap estimates. We will continue to monitor data on the illicit market following the introduction of new policies in this Bill.

Amendment 216, tabled by the noble Lord, Lord Murray, would mean that large parts of the Bill, including age-of-sale and sponsorship provisions, would expire after five years. Also, to avoid the expiry of provisions, it would require the Secretary of State to consult on and lay new regulations each year, and that any regulations made under the Bill regarding packaging and displays would also expire after five years. We had a long debate on the very important matter of impact assessment earlier in Committee. I will not repeat the points that I made there.

However, as noble Lords have heard throughout this debate, smoking is the number one preventable cause of death, disability and ill-health, costing our society some £21.3 billion every year in England alone. I also remind the Committee that this landmark legislation will be the biggest public health intervention in a generation. Our intention is to protect children from harm and break the cycle of addiction and disadvantage. The amendment would mean that large parts of the legislation would automatically cease after five years, and at one-year intervals following that. That could result in gaps in the law, creating legal uncertainty for businesses and consumers alike, and leading to harmful and highly addictive products becoming widely accessible.

Turning to Amendment 200, tabled by the noble Baroness, Lady Hoey, unfortunately I will disappoint her by repeating what I said at Second Reading—which she faithfully quoted—and which I have also said on previous days in Committee. The Government are content that measures in the Bill which apply to Northern Ireland are consistent with the obligations under the Windsor Framework. On the broader sovereignty points raised by the noble Baroness, the noble Lords, Lord Johnson and Lord Dodds, and the noble Earl, Lord Howe, I undertake to write to them about these important matters. However, we are concerned that this amendment would put us in breach of international law. Although I am repeating myself, it is important to say that the Government’s position remains that the Bill will apply across the United Kingdom. It has been developed in partnership with the Scottish and Welsh Governments and the Northern Ireland Executive.

The noble Baroness, Lady Hoey, also tabled Amendments 114B, 138A and 201A. While I am sure that I do not need to reiterate this to noble Lords present, I hope the Committee will forgive me for reminding us all about the harms of tobacco. In Northern Ireland, the Department of Health reports that tobacco claims around 2,100 deaths per year. That is why all four nations are committed to creating a smoke-free generation, so that anyone born on or after 1 January 2009 will never be legally sold tobacco products. As others have done earlier in the Committee, the noble Baroness raised the point about countries having different age restrictions in respect of sale. It is the case that all countries, not just those making up the United Kingdom, have different age restrictions. As I have outlined, our aim in the Bill is to protect future generations and, specifically, to have a complete change of culture in how smoking is regarded, while breaking that cycle of disadvantage and addiction.

In response to the noble Lord, Lord Murray, and the noble Baroness, Lady Hoey, again, I am aware that I am repeating myself, but it is important to do so. The Government consider that in drafting the Bill, they have considered all their domestic and international obligations. We know the tobacco industry has a history of arguing that EU law prevents the adoption of tobacco control measures. That is a very common tactic in disrupting tobacco control legislation.

I am grateful to the noble Baroness, Lady Walmsley, for the point she made about legal opinions. Legal opinions indeed abound, and I understand why noble Lords are raising them, but it is not for me to engage in discussion about their merits or otherwise.

I can confirm that we expect the Bill to complete its passage within this parliamentary Session. There has been reference to the TRIS system, and I should emphasise that it is not an approval process, but I can confirm the point about the progress of the Bill. I hope that noble Lords will feel able to withdraw or not press their amendments.

[Baroness Hoey (Non-Afl)]

I thank the Minister for her response. I am not sure that I got a reply on the legal aspects. This is not about how terrible smoking is in Northern Ireland; it is about whether we can have the Bill in Northern Ireland. The Minister, while being very gentle, attempted to answer some of the points about the legal situation. It is absolutely clear that we need an official government legal opinion. If we cannot even get the Attorney-General, the noble and learned Lord, Lord Hermer, to respond to a letter and say something, what is the point?

I am really grateful to the noble Lord, Lord Murray, for reminding me that the noble and learned Lord, Lord Hermer, has the position of Advocate-General for Northern Ireland. I looked up what his role is, and it says he is the chief legal adviser to the Government of the United Kingdom on Northern Ireland law, yet he seems not to want to talk about this. I genuinely find it amazing. I just hope that the Minister will take this issue back. I presume that she has seen the legal opinion by the noble John Larkin, KC—he should be noble but he is not. Has she read his legal opinion?

[Baroness Merron (Lab)]

My Lords, I have not taken a legal eye to it because I do not have a legal eye to do so. I would not wish to inflate my legal expertise in this regard; it is a matter for my colleagues to do that.

[Baroness Hoey (Non-Afl)]

I fully understand that the Minister does not want to do that. However, I would have thought that, if the Attorney-General is telling me that I have to refer to her on this, he would at least have sent her the document.

[Baroness Merron (Lab)]

I thank the noble Baroness. To reiterate what I said at the beginning, I am very pleased to write to noble Lords about the broader points being raised. I will of course attend to the points that the noble Baroness has raised.

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[Earl Howe (Con)]

My Lords, through these amendments my noble friend has issued a challenge to the Government which I think is extremely welcome. The challenge is to explain why the objectives the Government are seeking to achieve through Clauses 89 and 93 are achievable only via the heavy hand of prescriptive regulation rather than by less burdensome means. Is there a role for guidance as a substitute for regulation, and might there be merit in challenging manufacturers and others in the supply chain to take direct responsibility for the design of their packaging within certain parameters?

The Minister will probably say when it comes to the tobacco giants—whose ways, alas, we know from of old—that that kind of aspiration is a somewhat forlorn hope. But what if regulation, instead of being enacted willy-nilly, were used by the Government as a sword of Damocles hanging over the various arms of industry? Has anyone actually spoken to manufacturers of nicotine products or vapes to see whether they would entertain the idea of avoiding regulation by agreeing a responsibility deal with the Government whereby, in designing their packaging, they did so ethically, in a way that avoided including imagery of obvious appeal to young people, or colours and fonts that serve to glamourise the product contained inside? That idea sounds a whole lot less complicated than drafting regulations in inevitably minute detail, which could easily become quite a difficult exercise. A certain amount of commercial freedom would thereby be retained by manufacturers, along with some scope for market competition, which would be another incentive for playing by the agreed rules.

My noble friend’s amendments return us to themes we have touched on already during Committee: questions of proportionality, consultation and the need to ensure that the framework we create is both evidence-based and appropriately targeted. I am particularly supportive of Amendment 140E, which again highlights the importance of engaging with retailers and manufacturers before new provisions are introduced. It is an amendment which reminds us that we are not dealing with a single homogenous group of products. There is a wide spectrum here, from combustible cigarettes through to heated tobacco, vapes and other nicotine products, and as each of them carries a different level of relative harm, those differences should be recognised, both in consultation and in how the law ultimately treats each one of those products.

I therefore hope that the Government will give serious consideration to the intent behind these amendments, and that the Minister can set out how the Government are meeting the challenge my noble friend has issued: the need to explore whether we can achieve a set of desired ends by the least burdensome route, by proper engagement with stakeholders and by recognising the distinctions between products that the Bill has chosen—rather too often, I am afraid—to lump together.

[Baroness Merron (Lab)]

My Lords, I start by thanking the noble Lord, Lord Udny-Lister, for bringing these amendments forward, and I thank all noble Lords for their contributions today.

I should start by providing clarification that I hope will be helpful to the Committee. The Secretary of State is already able to issue guidance in these areas. However—I particularly make this point to the noble Earl, Lord Howe, who I listened to closely—here is the problem. Guidance is not enforceable, as he is aware. Instead, we would have a voluntary system that industry could choose whether to comply with. I am also grateful to the noble Baroness, Lady Northover, for her support in the arguments I am about to make.

The reality is that industry is already able to choose to package its products in a way that does not appeal to children; it could already be doing that now. There are some companies that are to be credited for following this line of not appealing to children, but the fact is, as the noble Baroness, Lady Northover, said, that we see far too many vapes marketed alongside cartoons and other imagery that can only be described as focused on young people. It is therefore appropriate and necessary for the power to make regulations to remain.

The noble Lord, Lord Udny-Lister, referred to heated tobacco. We had an extensive debate on the tobacco products in scope, including heated tobacco, on a previous day in Committee, so I will not take up any more of the Committee’s time on that.

As for consultation, Clause 109 already requires the Secretary of State to consult before making any regulations in Part 5. I can assure the noble Baroness, Lady Northover, that we intend to consult on introducing restrictions on tobacco, vaping, which she spoke of, and nicotine product packaging as soon as possible next year. The consultation will be open to all, and we will listen very carefully to the views and evidence put forward by stakeholders.

Amendment 147B is also not needed. Clause 93, on non-compliant images, is intended to stop images being published of products that do not meet the packaging and product design requirements that could be specified under Clauses 89 and 90 respectively. Those clauses already allow the Secretary of State to restrict the use of imagery such as cartoons and images that would appeal to young people. There is therefore no need to amend Clause 93, on non-compliant images. I hope that the noble Lord feels able to withdraw his amendment.

[Lord Udny-Lister (Con)]

I thank everybody who has taken part in this debate. I shall return to this argument in a later group, so I will leave it at that and beg leave to withdraw the amendment.

--- Later in debate ---

The same applies to the useful probing amendment from the noble Earl, Lord Russell, which is very much in the analytical spirit of his noble grandfather. We must never overlook the importance of clarity, proportionality and balance in how the Bill is implemented. Although I support measures that provide certainty and coherence for businesses and enforcement bodies, I remain cautious about any extension of ministerial powers that could add complexity or cost to an already highly regulated sector.

[Baroness Merron (Lab)]

My Lords, I am most grateful to noble Lords who tabled amendments in this group. I thank all noble Lords for their contributions to the debate.

I am sorry to hear that the noble Lord, Lord Mott, is unwell, and I am sure we all wish him well. On his Amendment 142, which was moved by the noble Lord, Lord Udny-Lister, restrictions currently set a 2-millilitre tank size limit, and a 10-milliletre refill tank size limit for vaping products. Over recent years, manufacturers have developed devices where multiple refill tanks are attached to the device itself. I assure the noble Earl, Lord Howe, and other noble Lords that the Bill already contains powers that allow us to regulate the nature and amount of substance that may be released into the body of a person using a relevant product, which includes vaping devices and the emissions released by such products. This includes restricting not only the nicotine in the tank but the nicotine that can be emitted in the vapour.

My next point is key to a number of points made in the helpful debate today: on 8 October we launched a call for evidence, which runs until 3 December. That, to me, is crucial in informing the development of future regulations under the Bill, which noble Lords are correctly asking for. We are seeking evidence to ensure that all nicotine-containing products have safe and appropriate levels of nicotine.

I understand the spirit in which Amendment 144, spoken to by the noble Lord, Lord Moylan, and Amendment 146, spoken to by the noble Earl, Lord Russell, have been tabled and the points that were made. I also heard clearly the concerns expressed by the noble Baroness, Lady Fox. We agree that descriptions of flavours are part of the appeal of vapes to children. The Bill allows us to regulate flavour descriptors. However, evidence suggests that children are attracted to the fruit and sweet flavours of vapes, both in their taste and smell, as well as how they are described.

[Lord Lansley (Con)]

Can the Minister tell me exactly where in the Bill the power to regulate flavour descriptors is to be found?

[Baroness Merron (Lab)]

I am sure that I will be able to do that, if the noble Lord will allow me to continue in the meantime.

What we do not yet know is the long-term harms of certain ingredients or flavours. This is why we need to be able to limit the flavours themselves, with the ability to respond to emerging evidence or scientific advances in the future, as well as how flavours are described. I can refer the noble Lord, Lord Lansley, on the point that he raised to Clause 91, which says:

“The Secretary of State may by regulations make provision about—”


et cetera. I hope that will be helpful to him.

I understand the concerns that were raised about how restrictions on flavours can impact former smokers who have switched to vaping. We absolutely recognise that vape flavours are an important consideration for adult smokers, and we will carefully consider restrictions to avoid any unintended consequences for those who seek to quit smoking. Our aims for future regulations on vape flavours, as well as for the wider regulations on vapes, are to reduce the appeal of vapes to young people while ensuring that they remain a viable quit aid for adult smokers. I heard the concern of the noble Earl, Lord Russell, about ensuring that the legislation is right. I am sure that all noble Lords share that view.

The published call for evidence includes flavours of tobacco, vape and nicotine products, to ensure that we are considering the best available evidence. We will also review the approaches taken by other countries, to learn the lessons and to consider whether they are appropriate for the UK. I give an assurance, as I have done before, that we will then consult on specific proposals before making regulations.

On the point about international comparisons—the noble Lord, Lord Lansley, raised a certain aspect of them—there are varied determinations on what a flavour is. For example, in the Netherlands, there is a specified list, and, in Finland, there is a restriction on all characterising flavours. That is why the call for evidence and the subsequent consultation are so important.

[Lord Moylan (Con)]

The Minister refers to “characterising flavours” in Finland. That sounds to me like a descriptor, rather than anything about the composition. I know that these appear to be subtle distinctions but they are not—how something tastes and how it is described are two very different things. The question of characterisation seems to fall into the same confusion that the Government are in.

Perhaps this is an appropriate moment, so that I do not interrupt again later, to add that the confusion is evidenced by what my noble friend Lord Lansley and I have found in reviewing Clause 91; I am not very good at these things, but my noble friend is a former Secretary of State for Health and, as I have seen on many occasions since joining your Lordships’ House, a consummate legal draftsman. I suggest that the Minister’s support team does the same, because there is absolutely nothing in the clause that does what the Minister thinks it does. There is no reference to the description of flavours. There is reference to the flavour itself and to determining what the flavour is, but there is nothing about descriptors in that clause. I would have felt rather foolish tabling an amendment to the clause if the content of my amendment was already there.

[Baroness Merron (Lab)]

Perhaps I might assist by referring noble Lords to Clause 89, which obviously precedes Clause 91 and covers descriptors. I am very happy to review the points made by noble Lords in this regard; I will of course write to them in order to provide clarity.

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[Earl Russell (LD)]

I apologise but I, too, want to make a brief point. I welcome the fact that the Government are conducting a review and collecting evidence; that is good. I hope that those things will be used to make fundamental, good policy. However, there is a tension here because we could have a situation where flavours are appealing both to children, whom we do not want to take up vaping, and to ex-smokers, whom we do not want to go back to smoking because we have taken flavours away. What I have not heard the Minister say is that there will be an examination of price in that gathering of evidence. Doing more to raise the price of vapes, keeping them out of the territory of pocket money, is important in making sure that young children do not get access to these products. I encourage the Government to include that in their call for evidence.

[Baroness Merron (Lab)]

I thank noble Lords. On that last point, made by the noble Earl, Lord Russell, respectfully, I feel that we have covered that area at considerable length. I understand how strongly he feels about it.

On the point made by the noble Baroness, Lady Walmsley, currently, it is the MHRA that regulates vapes.

More broadly, I reiterate that I will be pleased to write to noble Lords to clarify still further what I have said. Overall, I emphasise that what noble Lords are raising in general are the exact reasons why we have a call for evidence and why we will consult. It is not the right moment to be categoric, but I take the point about noble Lords being concerned about what is permitted in the Bill. On that point, I will be very pleased to write.

[Lord Moylan (Con)]

I say again that my noble friend Lord Lansley and I have scanned Clause 89 as far as we can. It appears to give the power to regulate almost anything to do with the packaging of vapes other than the description of what is inside it. Brand differentiators, but not flavour differentiators, are covered—that is,

“the markings on packaging (including the use of branding, trademarks or logos)”—

but a mango is not a brand, trademark or logo. The Minister is doughtily defending the text that has been given to her, but it deserves more careful thought before Report. I am grateful that she will write.

[Baroness Merron (Lab)]

I agree that it needs more careful thought, which is exactly why, rather than discussing the merits of a mango, a raspberry or any other matter, I will be pleased to look at the points about which noble Lords are concerned; I want to assist in this regard. I am grateful for the reflections of noble Lords in looking at the Bill, as I have done. However, the best thing at this stage would be to commit this to writing.

I hope that noble Lords feel able to withdraw or not move their amendments.

[Lord Udny-Lister (Con)]

I am happy to withdraw Amendment 142.

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[Earl Howe (Con)]

My Lords, I cannot put it better than the noble Baroness, Lady Walmsley, has just done in relation to the recommendations about Allen Carr’s Easyway, which has been warmly endorsed by NICE in its guidelines. This is one of the four interventions that NICE recommends. The content of those guidelines should now be underlined for NHS smoking cessation clinics, to ensure that, exactly as the noble Baroness said, there is an option for those who do not want to remain addicted to nicotine when they elect to stop smoking.

I hope that the Minister will take this amendment away with her; I am grateful to my noble friend Lord Moylan for raising this issue. I say to him that there is probably another dimension to his amendment, if one takes literally the wording around what constitutes an appropriate level of nicotine in vapes. We have heard from the Minister that there is a power to regulate this in the Bill. However, again, we have a tension here: on the one hand, there are obvious arguments in favour of limiting the strength of nicotine in vapes that are used recreationally; on the other hand, we want vape dosages of nicotine to be strong enough to satisfy the addictive craving of someone who is hooked on smoking tobacco and who does not wish to go down the Allen Carr route. If you make the dosage too weak, the patient will simply revert to their former harmful habits.

My noble friend’s amendment is also useful in the sense that it would enable us to hear from the Minister how the Government propose to reconcile those dual objectives and the potential difficulties that face policymakers in attempting to regulate nicotine strengths. This short debate has brought us to an interesting point in the smoking cessation arguments. I look forward to what the Minister has to say.

[Baroness Merron (Lab)]

I thank the noble Lord, Lord Moylan, for bringing forward Amendment 147 and thank noble Lords for their reflections on this amendment.

I start by giving the reassurance that the Bill will allow the Secretary of State to continue making provisions about the amount and nature of substances that may be released into the body by vaping and nicotine products. Regulations made under this power will apply to products sold on the market and to those provided through stop smoking services. We will consult before making regulations and will consider restrictions carefully to avoid any unintended consequences on smoking cessation, which I know is of great concern to noble Lords.

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Finally, Amendment 149A raises an issue on which we have touched several times in the course of our debates: the sheer extent of the regulatory power conferred by this Bill. We are dealing here with a framework that will rely heavily on secondary legislation, so it is right that we think carefully about oversight. This amendment would help to ensure that discretions exercised by the Secretary of State are transparent to Parliament and the public, and that the sub-delegation of powers does not occur without proper authorisation. It would protect parliamentary scrutiny, prevent regulations being exercised in opaque ways and respond to long-standing concerns around the use of broad Henry VIII powers in health and product regulation statutes.

[Baroness Merron (Lab)]

My Lords, I am grateful to the noble Lord, Lord Udny-Lister, for bringing forward these amendments in Committee. I am also grateful to the noble Baroness, Lady Northover, for observing that the industry has failed to self-regulate—a view that I share.

Amendments 148B, 148D and 148E seek to impose specific requirements so that regulations pertaining to the testing, study and standard of products and their ingredients take into account the potential to reduce harms, relative to smoking. I am sympathetic to the need to ensure that regulations recognise that vapes and nicotine products are less harmful than tobacco products. As we have discussed a number of times, ensuring that vapes remain an accessible smoking cessation tool has been, and absolutely continues to be, a key consideration in the development of this Bill and future regulations. I assure the noble Lord, Lord Udny-Lister, that the use of powers under Part 5 of the Bill is subject to consultation, to which the industry is of course welcome to respond.

However, the purpose of the powers in relation to product standards, testing and studies pertains to compliance with product standards and safety. As I believe the noble Earl, Lord Howe, said, it is critical that the public can trust that the products on the market are what they say they are and do not pose a risk to health—and that quick action can be taken if they do. I am sure the noble Lord would agree that, for example, vapes on the market must not contain faulty or illicit elements and that if they do, whether they are safer than cigarettes is not the critical issue.

Amendments 148A to 148E speak to the ongoing call for evidence that we launched in October to support the policy development of regulations to be laid under the Bill. This includes seeking evidence on elements of the new product registration scheme, as I have referred to, including on the role of the responsible person and who that responsible person might be. The future registration system will play an important part in enforcing our rules on product requirements to ensure the consumer safety that noble Lords seek, while improving retailer confidence in the products that they are selling, which is also important. We want to hear the views of respondents and consider those carefully before bringing forward more detailed policy proposals. I hope the Committee understands that I do not want to pre-empt the call for evidence and how future consultation might pan out before deciding on the right approach. We need that call for evidence to be met and for the consultation to take place.

On Amendment 149A, I understand the noble Lord’s intention. I can reassure him that any sub-delegation to persons must be set out in regulations. As I mentioned, there is a statutory duty to consult on any regulations made under Part 5 of the Bill. I also remind noble Lords that regulations will be subject to the affirmative procedure, meaning that Parliament will have an opportunity to consider any sub-delegation before the regulations take legal effect.

The noble Earl, Lord Howe, asked about the Government’s stance on whether research on the harms of products is sufficiently robust. We obviously seek that robustness and continue to monitor the evidence before us. Perhaps most importantly, our commitment to research on harms is crucial. For example, the department has commissioned significant pieces of research into vaping and nicotine products through NIHR. Notably, this includes a living evidence map bringing together international evidence on vapes and nicotine products, including their health harms, trends in use and emerging evidence on cessation. However, I share his interest in ensuring that research keeps up with what we seek to achieve, and we are committed to doing so.

With that, I hope that the noble Lord can withdraw his amendment.

[Lord Udny-Lister (Con)]

I withdraw the amendment in my name.

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[Earl Howe (Con)]

That is a very helpful clarification; I am grateful to my noble friend. There is a good parallel with the Portman Group, which is recognised, as he said, in statute and has a well-understood relationship with government. That is an appropriate parallel for the Government to consider.

In the same vein, Amendment 198, tabled by my noble friend Lord Moylan and the noble Baroness, Lady Fox of Buckley, seeks to establish an industry forum. The bringing together of Ministers, supply chain representatives and officials would ensure that policies are based on not only principle but real-world experience. I return to the theme of evidence-based policy and there is a parallel here too. As the Minister knows, there are already industry forums for pharmaceuticals and for medical technology, each of which I used to chair as a Minister. Each provides a mechanism for government and officials to engage with those who work day-to-day in the vape and nicotine industries. For the vaping and nicotine industries, it would be a very effective way of making sure that the real world was reflected in future policy-making.

[Baroness Merron (Lab)]

I thank the noble Lords, Lord Lansley and Lord Moylan, for tabling these amendments, and other noble Lords for their considerations today.

Turning first to Amendments 154 and 154A, tabled by the noble Lord, Lord Lansley, I understand the noble Lord’s intention and the comments that he and the noble Earl, Lord Howe, made. I heard the noble Lord, Lord Lansley, clarify that he is talking about co-regulation. I understand his intent, but as I have said on a number of occasions—other noble Lords, including the noble Baroness, Lady Northover, have supported this—the industry has failed to self-regulate. Vapes are branded and advertised to appeal to children and rates have more than doubled in the last five years, with one in five 11 to 17 year-olds having tried vaping.

In addition to Part 5, the requirements set out in regulations are the best way to stop future generations from becoming hooked on nicotine. As I have previously said, we will consult on regulations where they are made under Part 5. The vaping industry and other bodies are welcome to respond to this consultation. We will return to advertising in more detail when we reach a later group, but despite existing restrictions on vape advertisements and the opportunities that the industry has had to self-regulate, evidence shows that vape advertising continues to appeal to young people. It is unacceptable that, in too many cases, vapes are being deliberately promoted and advertised to children.

[Baroness Fox of Buckley (Non-Afl)]

I keep hearing that the evidence shows that the advertising is appealing to children. Can the Minister send me details of that evidence, because I cannot find it? I have seen lobbying material from organisations that do not like vaping but no evidence as such.

[Baroness Merron (Lab)]

I will of course be happy to do that for the noble Baroness.

The noble Lord’s amendment also seeks to allow a self-regulatory body to exercise functions established in regulations under Parts 5 and 6. I point out that Clause 104 already provides for legislative sub-delegation where required. It allows the Secretary of State, when making regulations under Part 5, to delegate functions to other people, which will allow decisions to be made by the most appropriate body. For example, it may be appropriate to delegate functions under Clause 98 on testing, so that a body with specific technical expertise—the noble Earl, Lord Howe, referred to this—can carry out tests on products and determine whether they comply with product requirements.

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[Lord Moylan (Con)]

May I just gently correct the Minister? I did not ask why the Government adhered to their international obligations; I understand why a Government will, in general, want to adhere to their international obligations. The dilemma I raised was why the Government would continue to adhere to international obligations when the practical necessities of engaging with the industry would suggest that there is a case here for not doing so. It would be legal in domestic terms not to do so; indeed, this amendment would give sufficient warrant to anyone who doubted it would be legal not to do so. The question is, in a sense: how long will the Government go on ignoring reality because they prefer to adhere to a non-binding international obligation?

[Baroness Merron (Lab)]

I appreciate the clarification from the noble Lord and am grateful for his question. In my language, it does not give us a problem to abide by these obligations; they chime with our experience, with the evidence and, as the noble Lord is aware, with all previous practice. I will come on to the point from the noble Baroness, Lady Northover, about my ministerial colleagues in this regard, but this is also our government approach.

The noble Lord, Lord Moylan—I hope that I am quoting him correctly; I know that he will correct me if not—asked about the treatment of vaping firms with tobacco industry links in respect of the consultation. When responding to the call for evidence, and with regard to any future consultations, we ask that respondents declare any direct or indirect links to, or funding received from, the tobacco industry. Input from those vaping companies that have links to the tobacco industry will be summarised with regard to the requirements of Article 5.3, and responses from those parts of the vaping industry that are independent of the tobacco industry will be considered alongside the contributions and evidence of other regulations.

Turning to the point made by the noble Baroness, Lady Northover, about the DBT Minister, Sir Chris Bryant, I can tell her that the award ceremony to which she referred followed the historic signing of the UK-India trade deal. It has previously been attended by Ministers to celebrate the small businesses that are, as we have spoken about regularly, the backbone of our high streets and are delivering economic growth. We are acutely conscious of government guidance; I assure the noble Baroness that no bilateral or brush-by meetings with representatives of the tobacco industry were held.

[Baroness Northover (LD)]

Did the Minister know who was sponsoring that event?

[Baroness Merron (Lab)]

To my knowledge, he did not. I return to the point about consultation. There is a requirement to consult before making regulations under the majority of the powers in the Bill. At the risk of repeating myself, which I will do, we published a call for evidence on 8 October. The evidence is—I am sorry for pausing, but I have a cough. Perhaps the noble Lord, Lord Lansley, would like to take advantage of that.

[Lord Lansley (Con)]

I will give the Minister a moment to drink a glass of water.

If I may presume to ask a pointed question, I am looking for Ministers not to say, “Well, you didn’t do it in the past, therefore you can’t be expected to do it in future”, but to have a conversation with the industry about what this new regime will be, how it will work and how we can—most effectively, with the least interference in how an industry operates and with the lowest compliance costs—arrive at something that is flexible and effective. This may mean that the industry comes together to do something that it has not done in the past, but I do not think that we should exclude the possibility that the industry is capable of doing that.

[Baroness Merron (Lab)]

I understand that. I refer to my previous comments about Clause 104 already providing for legislative sub-delegation, although I am aware that the noble Lord has raised a broader point and drawn on the interests of the alcohol industry. I understand the point he is making. However, at the risk of repetition, our concern is very much based on our experience and the evidence of the industry. I realise that the noble Lord does not agree with that.

[Lord Lansley (Con)]

If I may intervene, since this is Committee and we cannot interrupt each other on Report and have this conversation, the point I am making is very simple: the past is not a necessary guide to the future. The fact that the industry did not do something in the past does not mean that it is not capable of doing it effectively in the future. As the Minister knows, the department’s experience is that, in relation to the alcohol industry, the Portman Group is an effective instrument for coregulation, so we should not exclude that possibility. I acknowledge that it is not simply a question of what powers are in the Bill; it is about how one structures the regime, and that conversation should happen now.

[Baroness Merron (Lab)]

I will be very happy to write further to the noble Lord, referring to the points that he raises, but I feel that he and I are at risk of repeating the same points to each other. My concern is that the industry has had much opportunity and not taken it. Indeed, it has been extremely creative—I am being polite—in working its way around legislation. Noble Lords will have heard my resistance to setting up more loopholes, and that is also for this very good reason. Although in theory I can understand the point the noble Lord is making, I am afraid that my reality does not bear it out. But I will gladly write to him. I appreciate that he is seeking to be constructive and draw on good practice elsewhere, which I understand. I thank him for the break that he gave me.

Finally, as I said, we published a call for evidence on 8 October on issues where more evidence is needed before we consult on specific proposals. That allows all stakeholders, including those relevant to Amendments 154, 154A and 198, to contribute their views. I hope that, with this, noble Lords will feel able not to press their amendments.

[Lord Lansley (Con)]

My Lords, I had plenty of opportunities to respond as we went along during the debate, so I simply take this opportunity to beg leave to withdraw Amendment 154A.