Terminally Ill Adults (End of Life) Bill

Debate between Lord Deben and Lord Goodman of Wycombe

Committee stage
Friday 6th February 2026 Lords Chamber

[Lord Goodman of Wycombe (Con)]

My Lords, I will speak to my Amendment 113, which concerns a matter that has not previously been raised in the context of mental capacity, or I suspect my amendment would have been grouped earlier; it is about codes of practice. To explain it, I ask any noble Lord interested to turn to Clause 39(2) of the Bill, where they will find what it has to say about codes of practice, which is this:

“The Secretary of State may issue one or more codes of practice in connection with any matters relating to the operation of this Act not required under subsection (1) as the Secretary of State considers appropriate”.


It is a very broad provision concerning any codes of practice that might arise as a consequence of the Bill.

The Delegated Powers Committee, on which I sit, was very critical of this provision, and said the following:

“It may be that clause 39(2) is intended to be a ‘sweep up’ power in case the subject matter covered by the duty in clause 39(1) has missed something. However, such a wide power, with the potential to affect the extent of the legal risk incurred by those carrying out functions in a highly sensitive area of professional practice, should not be conferred as a ‘nice to have’ and requires a compelling justification … The subject matter of codes of practice should be set out on the face of the Bill to the degree necessary for Parliament to understand the subject matter and who might be affected and we therefore recommend that the power in clause 39(2) is removed from the Bill”.


My amendment does not go quite so far as the committee report suggested, but it does say that any code of practice issued under the Mental Capacity Act should not be issued unless

“a draft of the code has been laid by a Minister … before both Houses of Parliament, having engaged in public consultation, and … that the draft has been approved by a resolution of each House of Parliament”.

I therefore ask the sponsor of the Bill, in responding to this amendment, to be as helpful to the Committee today as he indicated he would be when he gave evidence on all matters, except approved substances, to which we will return in due course. I see that he is nodding, and I look forward to his response.

[Lord Deben (Con)]

My Lords, I am hoping that I am going to help the noble and learned Lord, Lord Falconer, and I am sure he will be pleased with that help. We have been discussing some fundamental issues of interest to the people who are going to have to carry this Bill through. Therefore, I recommend three very simple things to the noble and learned Lord.

First, the sooner we know what the noble and learned Lord’s amendments are going to be, the very much better it will be. It would allow some of us to help—certainly not me, but the experts—to make sure they are adequate. Secondly, I support the noble and learned Baroness, Lady Butler-Sloss, in her demand that we should know as much as possible in advance. Thirdly—and the gravamen of my points—if you talk to people outside, many of them have no idea about the details of the Bill and have a general view either in favour or against it. However, when you talk to people who have some real understanding of the Bill, the issues which concern them most are those where they feel there is not adequate clarity, especially for the medics and others who are going to be involved.

This debate has been different, if I may say to the noble and learned Lord, from previous debates on this area. It has concentrated on the lack of clarity around what we really mean by competence. We have made the distinction between the competence that is satisfactory to make important but immediate decisions that can be reversed and the competence necessary to make fundamental decisions, where a person needs a longer-term ability.

It therefore seems to me that it would be advantageous to the noble and learned Lord’s whole cause if he could take this very seriously. If he can find a proper answer, which satisfies the sensible things that have been said, it will go very much further—this is a rather delicate sentence, which I hope the noble and learned Lord will not take amiss—to repair the impression that every amendment is shoved off. These are not amendments to treat with anything but the very greatest of care.