Terminally Ill Adults (End of Life) Bill

Lord Deben Excerpts

Friday 27th February 2026 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

That is a very helpful intervention. We can therefore see that the process of appointing the commissioner should not simply be in the gift of the Prime Minister and that there are processes—we have illustrated that. The difficulties in relation to accusations of neutrality or partiality and so on will come up in that process. However, at the moment, there is nothing in the Bill that would allow any of that to have come up before the appointment.

I suggest that there are a range of amendments in this group that the noble and learned Lord might want to look at carefully and accept, so that the role can be insulated from party politics, accusations of advocacy and speculation about what if this or that goes wrong. Maybe nothing will go wrong, but if something does go wrong with the commissioner’s conduct or they are seen to be acting as an advocate activist, there is nothing in the Bill that would mean that Parliament could do anything about it. We would just be stuck with it. Can the noble and learned Lord say what checks he sees for impartiality and guardrails against activism in the choice of commissioner and their role? What process will there be to ensure a commissioner’s impartiality in their role, even if not in their personal views? How can we make that guaranteed? How can we hold conduct to the highest account? At the moment, it seems to me there is no mechanism in the Bill to do so. Without that formal oversight, the way the Bill has set out appointing a commissioner is unsafe, and it should be looked at again.

[Lord Deben (Con)]

My Lords, I have tried in my contributions, which have been few although I have in fact been present for almost every moment of this Bill, to point out to the noble and learned Lord those occasions when his actions can make a great deal of difference. It seems to me that this is one of those.

I have been pressed by the media to speak about the Bill. I have refused every opportunity because I believe that the Bill should be debated in this Committee and there should be no attempt outside to make it difficult for us to say what we need to say in our proper carrying through of our business. If I had appeared on the radio, I would have said that the problem that we face is that there is so much in this Bill that is uncertain, unexplained and left to Ministers and particular appointees that we do not know how the Bill would work in practice.

This is not a question of whether you are on the side of the Bill or against it. It is that we have a duty to make this Bill work. I do not like the Bill and I do not agree with the principle, but I am not speaking from either of those points of view. I am speaking to try to get this Bill to be a suitable Bill to do the job which the promoters want it to do. I much resent the way in which people attack that, as if one is behaving improperly. There has been some disgraceful behaviour attacking one of the most distinguished Members of this Committee, who is knowledgeable and able, with a history of fighting for rights and the kind of behaviour that we should have for the terminally ill and the ill who need palliative care. I hope that the sponsors of the Bill will apologise publicly for what has been said to the noble Baroness, because it is unacceptable.

Let me say why this is perhaps the most important groups that we have had. Outside, there is genuinely held concern about the mechanisms which will make this Bill the safest Bill there is. The person who does this job is clearly not going to be somebody who is against the whole principle. The noble Lord, Lord Markham, is perfectly right that, if this becomes the law, the law will be carried through. The question is whether the person who is going to do this job is someone who will command the respect and support of the nation as a whole. The amendments before us are simply an attempt to find ways of making sure that happens. They are not suggesting that it should be somebody who is opposed to the principle. I cannot imagine anybody applying for it if they do not believe in the principle—I am certainly not going to apply for it myself. The fact of the matter is that it is going to be somebody who supports the Bill and is prepared to carry it through, but that person must have the respect of the public as a whole, and the appointment therefore becomes very important.

I do not want to tread on sad circumstances, but we do not have a terribly good history of appointments in recent years, on both sides of the House, so this is not a party-political comment. It makes it very important to get it right at this point.

There is no question of filibustering in saying to the noble and learned Lord that this is at the heart of the problem. The Bill is supported in principle by many in the organisations that are going to carry it through, but it is opposed in particular by them all because the Bill has not met their concerns.

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[Lord Deben (Con)]

I think it perfectly right for the noble Baroness to have intervened because I referred to her, and I apologise.

I want the noble and learned Lord proposing the Bill to face three issues that are centred around these amendments—which I am dealing with, I say to the Whip. These amendments are trying to meet the genuine concerns of people who are not necessarily opposed to the Bill. They want to make sure that this key person knows what his or her job is, is appointed in a way the public can have confidence in, and is not the harbinger of what has been called mission creep. Those are three very simple things to ask for.

This is the thing that really worries me. I say this directly to the noble and learned Lord, Lord Falconer. I cannot understand why, at the beginning of the Bill’s passage, he did not say, “First, we know that there is a problem that it used to be thought this Bill had a judicial element to it and it does not now, and I am prepared to look at how to change that. Secondly, we know that the professional bodies have real concerns, and I am going to present my answers to those. Thirdly, I know that there is much in this Bill that is not specific enough, which is why the Select Committees have said it is inappropriate and unacceptable in its present form, and I will put those things right”. Had he said those three things, we would have been a long way forward with the Bill.

Therefore, the Bill is being held up not by filibustering but by the fact that the people who have put it forward are so determined that it will pass that they are not willing, it seems to me, to listen to reasonable comments—even from people who have restrained themselves from entering into the bear garden they have managed to stir up in the media.

[Lord Sandhurst (Con)]

My Lords, Amendments 430 and 434 in my name go to the practice in operation. I will introduce them by making this point. I was one of the seven people fortunate enough to be identified in the Observer a couple of weeks ago as having tabled a lot of amendments. Contrary to what the Observer—and the quite numerous hostile messages I have received by letter or email—suggested, these amendments, together with all the others I have tabled, except for two relating to the victims of industrial disease, were put forward by the Law Society of England and Wales and by the CLADD group at King’s College London. The latter, for those who were not here the other week, is a group of a distinguished psychiatrist, psychologist, social scientist and lawyer with a particular interest in this and related issues. They and the Law Society are neutral on the principle of the Bill but want to see a safe and effective Bill. Amendments 430 and 434, together with others I have tabled, are aimed at that.

Amendment 430, some will be pleased to see—others will not—is for a streamlined, non-panel basis. It would insert a new clause saying:

“This section applies where the Commissioner receives … a first declaration … a report about the first assessment … which contains a statement indicating that the coordinating professional is satisfied as to all of the matters … a report about the second assessment of the person which contains a statement indicating that the independent professional is satisfied as to all of the matters … The Commissioner must, as soon as reasonably practicable, consider the person’s eligibility to be provided with assistance”.


He or she may then

“consider the person’s eligibility personally … refer the person’s case to a person qualified to sit on the Assisted Dying Review Panel”,

or

“refer the person’s case to a multidisciplinary panel”.

In practice, this means that it would be a modified procedure where there is agreement between the co-ordinating and independent professionals. The commissioner could then consider the application alone or refer it to the panel, so it would not necessarily have to go to the panel. A full panel would be mandated only if the independent professional is not in agreement with the co-ordinating professional that the criteria are met, or if it becomes clear during the modified procedure that further evidence is needed.

Some of those who are not in favour of the Bill may be concerned that this amendment could potentially weaken the process. I remind the Committee that Dame Caroline Swift, latterly a High Court judge but formerly lead counsel in the Shipman Inquiry, has said she is afraid that safeguards on assisted dying are likely to be eroded. We have to be very careful, because Dame Caroline Swift was right at the sharp end of looking at this. That is important, as she has seen what happens with a rogue doctor. She said:

“Those safeguards may seem adequate now but they are likely to be eroded over time. As Leading Counsel to the Shipman Inquiry, I saw how this had happened with the safeguards for the issuing of cremation certificates … Over the years, the second doctor’s role became diluted, they were seldom independent of the first, rarely examined the body and the signing of the second form became little more than a ‘tick box exercise’”.


My Amendment 430 might later be at risk of leading to dilution, but I hope it is an indication that there might—in clear cases, where everyone is agreed early on—be a way of moving it on swiftly, to the advantage of someone who is really anxious to go down this course and has capacity and all the other requirements. I hope that will be seen as a positive move and not a wrecker’s move. I am surprised that no one has come to me since this was tabled and said, “That’s a good idea; we’ll stick it in the Bill”.

Amendment 434 would amend Clause 16 and is simply intended to make it clear beyond doubt that referral to the panel is mandatory wherever the independent professional is not satisfied that all the requirements are met. The Law Society believes, and I agree, that as it stands it is not necessarily mandatory, and it should be. So, I ask rhetorically, why not? Are these not both jolly good amendments?

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[Lord Falconer of Thoroton (Lab)]

With respect to the Select Committees in the other place, they should be consulted and decide whether they want it.

In the amendment from the noble Baroness, Lady Cass, she draws attention to the fact that the assisted dying commissioner has a function under the Bill. That function is to receive documents, make appointments to the assisted dying panels, make arrangements in relation to such panels—this means that he or she is responsible for making sure the process runs properly—and determining the applications for reconsideration of panel decisions. That means that, if a panel says no to an applicant who wants an assisted death, the voluntary assisted dying commissioner has the power under Clause 18 to say that another panel should look at it. He or she has that power in a semi-judicial function if there is an error of law in relation to it, so that is a function.

The commissioner also has a function to monitor the operation of this Act. If noble Lords go to Clause 49, they will see that he or she is given the power to make reports, give an annual report and identify things that may be of significance in relation to it. One should not confuse this role with monitoring, for example, the performance of doctors in relation to their role. I do not see the very specific functions and the obligation to monitor and give reports, as in any way in real conflict. I think they could be done by the same person, particularly if there is a deputy to be appointed as well. I note what the noble Baroness said, but I do not think it is necessary to make provision in the Bill for a separate role for somebody to do both. I have thought very carefully about it.

The noble and learned Lord, Lord Garnier, has been kind enough to indicate that he has had to leave, but I will deal with his point. He wants not the Prime Minister but the Lord Chancellor to make the appointment. The Prime Minister and the Lord Chancellor are both political appointments. We have chosen the Prime Minister because—even though I think there is practically nobody more important than the Lord Chancellor—the political world, for reasons I am completely unable to understand, regards the Prime Minister as more important. We have chosen the most important person in the Government to make the decision and, with the greatest respect to the noble and learned Lord, I do not think we should change that.

The noble Lord, Lord Weir, asked why we should have a judge. I am a great admirer of judges, and I declare an interest in that I am married to a judge. The reason why we have a judge is twofold. First, ex-members of the Supreme Court, the Court of Appeal or the High Court of England and Wales—it is England and Wales that we have in mind—have high standing. They are regarded as people of calibre, which is why they are put in. Secondly, one of the specific functions in the Bill is to consider whether the rejection by a panel is an error of law. That seems to us to be appropriate to be dealt with by somebody with high legal experience. Separately, the commissioner is somebody who has to issue rules and a process for dealing with it. That is the reason for doing that.

[Lord Deben (Con)]

If that is the argument the noble and learned Lord puts forward, with which I entirely agree, does it not lead him to understand that the proposal of the noble Lord who spoke unwillingly earlier, to put this back where it was in the first place—basically, under the control of judges—would be a very good thing to do? Why has he not accepted that most of us would be able to support that, and therefore we would cut down the time we are spending on dealing with the situation when it is not there? If it is necessary, as he says, why not do the whole hog?

[Lord Falconer of Thoroton (Lab)]

We have changed from a judge to a panel because, after considerable debate in the Commons, it was thought that having a legal person in the middle, a psychiatrist and a social worker gave greater reach and understanding of those issues. We debated that issue in full over a particularly long period of time on an earlier Friday. I am more than delighted to redebate it—however, I think that issue has been laid to rest. That does not mean one does not have to have a process whereby the doctors pass their findings to a panel, and that is the role, in part, of the assisted dying commissioner.

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[Lord Hamilton of Epsom (Con)]

Could I come back on that? I never said that it was a major reason: I just said that it was a consideration that had to be made. Budgets are very strapped in the NHS at the moment and, if it can ensure that people who are blocking beds vote for assisted dying, that will save the hospital money. That is just a fact of life.

[Lord Deben (Con)]

My Lords, I did not intend to speak on this particular amendment until something happened at lunchtime. I have to apologise to the noble and learned Lord, because I am not sure that I can make a joke about it, as he has requested me to in any speech I make. The fact of the matter is that at lunchtime I discovered that my local health trust has withdrawn its payment to Marie Curie, which means that there will no longer be Marie Curie nurses helping people in the final months of their lives; that support has been withdrawn because of the tight budgets in the National Health Service. I am appalled that we are in that situation, but it reminds me very clearly of the fundamental problem of a single-issue Private Member’s Bill, because it asks us to consider something not as one of a series of priorities among which government has to make choices, but as something on its own. That inevitably is a real problem.

The second problem is that anyone who has been a Minister knows how the Treasury works. If you ask it to give you some money to spend and then say, “But we’re going to make these savings”, it always counts the spending and refuses to acknowledge the savings. That is a Treasury mechanism that we have all learned—and I see that a former Health Minister knows precisely what I mean.

The problem with this issue is precisely that: money will have to be spent, but the savings—let us leave aside whether this is a suitable balance—will certainly not be considered, which is why the Deputy Health Minister said there would have to be “reprioritisation”.

So I come to this Committee having been shocked at lunchtime. Perhaps the Chief Whip should not have allowed us off for lunch: then I would not have been able to see this. However, the truth is that I am shocked by the fact that one of the most important palliative care services is now going to be ceased for the part of the country in which I live. That therefore brings me back to the amendment. I think we have to say to ourselves, very clearly, that, if we are proposing to spend money on this, it is quite clear from the Government that that will mean “reprioritisation”, which actually means cutting other money in order to save enough to pay for this.

I hope the noble Baroness will not be upset by this, but I do not understand how the Government fail to do this: in all the advice they give us, they refuse to tell us how much they think this will cost. That is a duty of the Government. They should tell Parliament, if it is a Private Member’s Bill of this sort—I will give way.

[Lord Falconer of Thoroton (Lab)]

We produced an impact assessment of the Bill with detailed costings, provided by the health service, so to suggest to the Committee that the Government have not provided the costing is inaccurate.

[Lord Deben (Con)]

We have already told the noble and learned Lord what we think about the impact assessment. We have been asking for an updated impact assessment which takes into account the debates we have had and the assessments we have made. The Government have said they will not do that—that is what I am referring to. I want to see an absolutely up-to-date impact assessment based on the debates in which we have expressed and explained real issues which have not been raised before, so that we can, first, know how much it costs and, secondly, begin to ask ourselves, “Is this the priority?”

I will end on this. Is it a priority to provide people with the free chance to kill themselves and not provide people with Marie Curie nurses so they may live the end of their lives in a happier and better place? Anyone who suggests that we get that priority right by funding assisted suicide rather than Marie Curie nurses seems to me to be saying something that the public would not accept. One of the problems with this whole debate is that we have never been prepared to tell the public what the real effect of this is. Therefore, I very much support this amendment—not that I would normally support the kind of position my noble friend raises in his particular way, but he did it most elegantly. I support it entirely because, at long last, we are talking about the facts and what this really means for the people of Britain.

[Lord Jackson of Peterborough (Con)]

Before my noble friend sits down, he might be interested to know that we have been here before. He will know that, in 2012, as a result of replies to freedom of information requests about the discredited Liverpool care pathway, it was revealed that £12 million was promised to various trusts across the country to hit targets in respect of the Liverpool care pathway. There was fiscal inducement to facilitate the death of patients. So this is not a scare story; we have seen evidence of it within living memory.

[Lord Deben (Con)]

I thank my noble friend for that intervention, and it is important. I have been trying to be very careful not to suggest that those in favour of this Bill are in favour of it as a money-saving operation. I do not believe that is true, but I have to challenge them with simply this: once this were in the system, it would be a serious temptation.

There are two big temptations in this Bill. The first is summed up by that old phrase “Where there’s a will, there’s a relative”. There is a real issue about coercion. The second great problem is that you change the fundamental relationship between the ill person and the doctor. You also create circumstances in which it is very likely that it would be cheaper for people no longer to be there. If anyone thinks that that creates confidence, either in the medical profession or in the National Health Service, I do not.