Terminally Ill Adults (End of Life) Bill
Lord Falconer of Thoroton Excerpts(1 day, 14 hours ago)
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Lord Shinkwin (Con)
My Lords, I apologise, but I rise to raise a procedural issue crucial to the reputation of your Lordships’ House. When I blocked out my diary for the Fridays scheduled for Committee on this Bill, I did so in good faith. I assumed not only that your Lordships’ House would recognise the value of the views of Members with lifelong lived experience of disability, but that steps would be taken to ensure that those views were heard on an equal and non-discriminatory basis. That would be entirely in keeping with the Equality Act 2010, which placed on organisations a legal duty to make reasonable adjustments on account of disability in, among other things, the way in which they work.
In the belief that your Lordships’ House and the Government will appreciate the crucial importance of our being seen to set an example and uphold the law, which we passed and which we expect others to abide by, I emailed the Government Chief Whip and wrote to the Prime Minister to explain that, because of my disability, I need to leave by 3 pm in order to catch my flight home. I requested an assurance that the House would not sit beyond 3 pm, which is of course the time by when the House normally rises on a sitting Friday. Regrettably, I have been given no such assurance. Instead, the Government are using a procedural technicality as a feeble fig leaf for discrimination against me as one of the House’s Members—one of its few Members—with lifelong disability. I do not believe it is beyond the wit or the will of the Government, or indeed your Lordships’ House, to ensure that we rise by 3 pm so that I can participate today and on other sitting Fridays on an equal and non-discriminatory basis. Given that not one organisation of or for disabled people supports this Bill, surely it is right that all of us—every one of us—are enabled to do our duty of subjecting this monumentally significant Bill to the forensic scrutiny it requires.
In conclusion, do we really want to send the message to those who are following our proceedings today, “Do as we say, not as we do”? That would be shameful and it would be unworthy of your Lordships’ House. For our own sake, I urge the House not to discriminate against me as one of the very few Members born disabled. I therefore ask that the House rises by 3pm.
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—
Lord Falconer of Thoroton (Lab)
Hold on. Consider whether it represents the right position.
Can I just deal with two other points? First, the noble Baroness, Lady Smith, in a very clear speech, said maybe one should amend the Bill to give the Welsh Senedd the power to make a decision about the criminal law in relation to assisted dying. It was a point I thought the noble and learned Lord, Lord Thomas of Cwmgiedd, was sort of flirting with. We have not taken that view. We have taken the view that the right way to deal with this is in accordance with the existing devolution settlement.
If the noble Lord, Lord Gove, has not been satisfied with my answer so far, he may continue with his question.
Lord Gove (Con)
I am very grateful to the noble Lord for the clarity there. As a broad point, the devolution settlement encompasses not just inter-governmental relations but respect for devolved legislatures and their committees. With respect to that, the Legislation, Justice and Constitution Committee of the Senedd has expressed concern that the Welsh Government have said that only a narrow number of clauses in the Bill should be subject to commencement by Welsh Ministers in the Senedd alone and has expressed concern about the lack of detail from the Welsh Government on these matters. I would be very interested in the noble and learned Lord’s views about the adequacy of both the Welsh Government and the UK Government’s sharing of information. More broadly, the committee also pointed out that there is dubiety at the very least about whether Clauses 42(1), 42(2), 51(2) and 51(3) of the Bill will be implemented only by regulation of Welsh Ministers or will be subject to automatic commencement through the automatic commencement backstop in due course.
Lord Falconer of Thoroton (Lab)
In relation to the noble Lord’s first point, the Legislation, Justice and Constitution Committee’s point about the width of the legislative consent Motion is that it wants the LCM to extend not just to the health provisions but also to those that relate to the change in the criminal law and the safeguards. It argues that those changes in the criminal law should also be subject to it. My view—and it is a view I think shared by the Welsh Government—is that, no, you do not need a legislative consent Motion for the UK Parliament to do that which it is entitled to do, which is to change the criminal law. I give way to the noble Lord, Lord Harper.
Lord Falconer of Thoroton (Lab)
Sorry, the noble Lord, Lord Gove, asked a second question which I did not answer.
Lord Gove (Con)
I am very grateful for that clarity, because it is clear that as a result of that, even though Westminster will be operating within its own legislative competence, it will be doing so in a way that violates the expressed wish of the committee. Again, as I pointed out in the previous section of this debate, it is also the expressed wish of many within Welsh Labour to see criminal justice devolved, but put that to one side.
The other key question was: can Welsh Ministers commence Clauses 42(1), 42(2), 51(2) and 51(3) of the Bill by their regulations only, or might the automatic commencement backstop apply in those cases?
Lord Falconer of Thoroton (Lab)
It will depend on the decision made by the Welsh Ministers. I give way to the noble Lord, Lord Harper.
Lord Harper (Con)
I am grateful to the noble and learned Lord. I have listened very carefully to what he said, and I absolutely accept that he has conducted extensive engagement with Welsh Ministers based, perfectly understandably, on the framework of the Bill as he and the sponsor in the Commons have drafted it.
The noble and learned Lord will know that one of the concerns of many in your Lordships’ House is the extent of Ministers’ powers and the extent to which some of the regulations should be put in the legislation. I am sure, as Committee progresses, we will have those debates. If it ends up being the wish of this Parliament that more of the detail about how the legislation will be implemented is put in primary legislation, how will we do that in a way that satisfies the desires perhaps of this Parliament but does not trespass, given the way he has chosen to set out the framework, over the devolution framework? Therefore, did he consider just devolving the power to the Welsh Senedd to change the criminal law in this narrow case? Then the Senedd, as the noble Baroness said, would have the full power to change the law and implement it. I accept that what he has done makes sense in the way he has drafted the Bill, but if we significantly change the Bill, I think that will cause a real problem with how it is implemented.
Lord Falconer of Thoroton (Lab)
I am not sure I understood the question. As far as devolution is concerned, I do not think the question of regulations on the face of the Bill is the right issue. The right issue is who has power to produce those regulations and does that offend against the devolution settlement. If he has a question about there being not enough detail in relation to other areas, I am happy to answer that, but this is not for this group. Those are my submissions.
Lord Harper (Con)
He said he did not really understand my question. If we set out in the Bill some of the details he currently envisages are in regulations and therefore the House decides on them as opposed to them being for Ministers in either the UK Government or the Welsh Government, that will cause a problem for the approach to devolution that he has conducted. I just wondered whether he had thought about that. That was my question, and I am sorry for not expressing it clearly.
Lord Falconer of Thoroton (Lab)
I am not sure the noble Lord has quite understood what I have said. It is for the regulations in so far as they deal with the Welsh health service to be delivered by Welsh Ministers, so it is quite inappropriate for us to put them in this Bill.
Baroness Coffey (Con)
My Lords, I was brief at the start because I wanted to give the Minister the chance to be transparent for the benefit of this House. I am sorry to say that I hope that the letter will give that, but I am concerned that it will not. The reason I say that has been well explained in the discussions in the Welsh Senedd. In the supplementary to the latest legislative consent memorandum, it says:
“The UKG has not confirmed their position as to whether they believe the consent of the Senedd is required for this Bill as amended at the House of Commons Report stage but have acknowledged that some clauses do”.
When will the Government share with this House what they think is devolved and what is reserved? Why are they reluctant to do so? This is what I am struggling to understand. I have been asked outside this Chamber why am I bothered about Wales. I care about Wales anyway. It may not be widely known, but I went to school in Wales, I have family in Wales and both my parents are buried in Wales. But I would say that I am also here as a legislator.
Having been an MP, a Minister and a Cabinet Minister, I am used to being taken to court on details of legislation, and to the back and forth with devolved Administrations. I am not doing this simply to try to be awkward; we are trying to define the legislation. The Legislation, Justice and Constitution Committee in the Welsh Senedd believes that Clause 1 should be devolved. To give another example, people might be aware of the issue of smacking. Basically, Wales was able to use its child welfare powers and then made a request. We will come on to this later in the debate about amending the Government of Wales Act, I think. If we recognise that the only context under this Bill in which there can be help with assisted death—assisted suicide—has to be healthcare settings then surely there is something there about the Welsh Senedd having the opportunity, through later amendments, to make that determination in the first place.
I mention that now because my noble friend Lord Markham and the noble and learned Lord, Lord Thomas, said we should be deciding the principle of whether this Bill should be seen in that regard. Actually, recognising the whole, I am strongly of the view that this should be taken out of this Bill through an amendment to the Government of Wales Act. That is to some extent why I put tabled this. Will the Minister confirm the Government’s position on Clause 1? I would be very happy to have an answer from the noble and learned Lord, Lord Falconer of Thoroton, on whether he believes that. The Welsh Parliament certainly does.
Further, will the Minister put in the Library the minutes of the meetings so we can understand what is happening between the two Governments about the practicality and legality of this aspect of the Bill? I know that Ministers will, understandably, often say that it is all legally privileged. Those of us who have been in government know that you tend to get small aspects of legal privilege and lots of policy content in regarding and summarising, which is not legally privileged. That is where I hope that we can get this transparency from the Minister and, if necessary, the sponsor—I do not quite understand this; it is one of the most complicated Private Members’ Bills I have ever seen—and, actually, just an answer to whether Clause 1 is reserved or not.
Baroness Coffey (Con)
I was hoping to get an answer; we can speak more than once in Committee, because we are trying to understand. Otherwise, later days in Committee and Report could become quite painful. I hope to get an answer from the Minister today.
Lord Falconer of Thoroton (Lab)
I have been absolutely clear that, in so far as Clause 1 affects a change to the criminal law, it is reserved. In so far as implementation of it by the health service is concerned, that is a matter for the Welsh Government, not the Bill. If there is any lack of clarity in that answer, let me know.
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 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”—
Baroness Fox of Buckley (Non-Afl)
On a point of clarification, I thought that the idea of adding both words was very helpful, but when the noble and learned Lord says that you cannot make the decision without capacity, it is not any decision but this particular decision in this Bill. Can he reflect on a point that was made very well by one of his noble friends on something that happened in my family as well? Somebody with dementia was said to have capacity for a particular decision, but I would not have wanted my mother to have been trusted as having the capacity to decide whether to ask for assisted death.
The Mental Capacity Act is fantastically important, but is it appropriate for this decision—not any old decision but this decision—which is a bit more challenging than some of the decisions that the Mental Capacity Act is used to decide on?
Lord Falconer of Thoroton (Lab)
That is very well put and is exactly the question. Is it appropriate to bring the Mental Capacity Act into this Bill? I understand that whether you have an assisted death is an incredibly important decision. You cannot remove the word “capacity”, so you have to reject the amendment from the noble Baroness, Lady Finlay.
Her Amendment 115 effectively draws on how the Mental Capacity Act 2005 is currently drafted, except it adds two things. It removes the presumption of capacity and, separately, it requires the person making the decision to be aware of a variety of things that are connected with their illness. To summarise, the way the Mental Capacity Act operates at the moment is that if you are unable to understand information relevant to the decision, to retain that information, to use and weigh that information or to communicate your decision, you do not have capacity under the current Mental Capacity Act. The extent to which the things that the noble Baroness, Lady Finlay, has referred to in her amendment would be relevant would have to be weighed in the context of the decision that has to be made.
I am more than happy to debate whether we need to make the changes to the Mental Capacity Act that she is suggesting. For my part, I do not think we do. One thing that is absolutely clear is that the amendment proposed, as the noble Lord, Lord Sandhurst, identified, is completely ridiculous. You cannot remove the question of capacity from this choice. Putting aside some detail hurdles, there are two hurdles that need to be overcome in how this Bill is constructed. You have to be capable of making the decision, as the noble Lord, Lord Wolfson, said, and—completely separately—you have to make that decision completely voluntarily. It has to be your own decision, not the product of pressure.
We have had—and I say this with warmth and respect—a rambling debate going over a whole range of issues, miles away from the question of whether one should remove the word “capacity” and put in the word “ability”. If this House wants to make the law completely confused in this area, either put in the word “ability” or put in “capacity and ability”. I echo the speech of the noble Baroness, Lady Hayman, when she says we have to approach this in a grown-up manner, and to remove the word “capacity” is not a sensible way to deal with this.
I also echo those who have said that the idea of running two systems at the same time—the Mental Capacity Act system and the separate system proposed by the noble Baroness, Lady Finlay—is wrong and confusing. I congratulate the noble Baroness, Lady Fox, for spotting what the right decision is. Of course, under the Mental Capacity Act some unimportant decisions are taken, but a decision such as whether to have the ventilation removed from you if you have motor neurone disease, that will almost certainly lead to your death, is without a shimmer of a shadow of doubt a life and death decision.
The Chief Medical Officer of England and Wales, in evidence to the Lords Select Committee, said:
“it is far better to use systems that people are used to and that are tested both in practice and, where necessary, in law”.
He went on to say:
“I have a concern that you could have a conversation in one bed in a hospital where someone is talking about, for example, an operation where they might well lose their life, because they are frail and there is the operative risk, done under the Mental Capacity Act, and, in the next-door bed, someone is trying to do the same process of having a difficult conversation about someone who might die, or could definitely die, as a result of that decision, but using a different legal framework. The risks that that could lead to confusion are not trivial”.
I also echo what the noble Baroness, Lady Browning, who sadly is not in her place, said. There are problems about practically every aspect of how various parts of the health service work, but she was part of a process that considered how the Mental Capacity Act worked. The broad conclusion was that it was a good, workable Act, and we should not stray from it in this particular case. I invite the noble Baroness to withdraw her amendment.
Lord Sandhurst (Con)
Before the noble and learned Lord sits down, may I just make it absolutely plain that I said that capacity was necessary but not sufficient. I am not stuck with whether it should be “and ability”, but I was absolutely plain in my very short speech that capacity was necessary but not sufficient.
Lord Falconer of Thoroton (Lab)
I was picking up on the word necessary. What the noble Baroness, Lady Finlay, is suggesting is that we remove the word “capacity”. I do not know if I misunderstood the noble Lord, but that is what I thought he was saying.
Lord Sandhurst (Con)
I wanted to make it plain because some people listening to the noble and learned Lord might have thought I had not said that.
Baroness Lawlor (Con)
Before the noble and learned Lord finishes, can he clarify for the Committee that a person who can grasp only a diluted amount of information, or who cannot retain the information in any real sense that would be intelligible to us, can be deemed to have capacity for the purposes of the Mental Capacity Act, but for this Bill, which is designed to give people agency and allow an individual as much choice as possible to choose treatment or have agency over medical and palliative care decisions and so on, an entirely different threshold should, quite rightly, be expected for such a serious measure as this?
Lord Falconer of Thoroton (Lab)
I respect the noble Baroness for repeating her speech. Section 3 of the Mental Capacity Act says that if a person is unable to
“understand the information relevant to the decision … to retain that information … to use or weigh that information ... or … to communicate his decision”,
then they do not have capacity. I am content that that should be the approach under the Bill.
Baroness Coffey (Con)
I want very briefly to put on record that Professor Sir Chris Whitty is not the Chief Medical Officer for England and Wales, but for England only. I will wait for another time for the answer to the question I asked about power of attorney to be given, ideally by the Minister.
Lord Falconer of Thoroton (Lab)
I will answer that one. No, you cannot do it by power of attorney. You have to do it yourself.
Baroness Finlay of Llandaff (CB)
My Lords, given this very long debate, I will try to respond briefly. I declare that I had the privilege of being the first chair of the National Mental Capacity Forum, which was set up following the post-legislative scrutiny of the Mental Capacity Act precisely because of the problems with its implementation. I worked in that role all through Covid. As the noble Baroness, Lady Browning, said, unfortunately, although it is a fantastically good piece of legislation, its implementation depends on the person who is implementing it. Although there has been training, and we worked very hard to get training in, it has unfortunately not always improved things as much as one might hope.
The other thing I draw to your Lordships’ attention is Section 62 of the Mental Capacity Act, which concerns the scope of the Act. It says:
“For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide)”.
It was with that background that I became concerned that the quality of the information the person has depends on the knowledge of the person giving that information, as well as the ability of the person to retain it. I spoke about choice at the beginning of my speech. I am sorry that the noble Baroness, Lady Thornton, is not in her place, because choice is essential if we are giving patients opportunities to make decisions, but we have to have real choices. That is why I spoke about the black holes where there is no adequately provided palliative care.
Unfortunately, although the Bill has had a money resolution—forgive me if that is the wrong phrase, but there has been a commitment to fund the provision of a service if the Bill becomes an Act—it has not been matched by concurrent funding in the long term for specialist palliative care. That is a concern, but we will come back to it later.
There is another very small point that I want to make: can we please avoid using the term “commit suicide”? It is not a crime to take your own life, and “commit” is a deeply offensive term. We are talking about people who, for whatever reason, decide to take their own lives and end their lives early. We should remember that as we go forward in our debates, out of respect for everybody who has been bereaved by the tragedy of suicide or attempted suicide.
When it comes to life and death decisions, though, I suggest to the Committee that it is fundamentally different to have the decision of accepting that your disease process is going on, that your dying is inevitable and that you wish to withdraw your dialysis or ventilation. Those are decisions in which I have been involved with patients for decades. We can now take people off ventilators very gently and calmly without any of the distress that was previously associated with that, and they die of their underlying disease.
What we are talking about is suicide prevention versus suicide assistance and the point at which you decide, as a clinician with a patient in front of you, whether you are going to be working with suicide prevention, improving quality of life, or whether you are going to stop that because you are going down a different route, and some of the evidence we had was to that effect. However, because of time and the way that things have gone on, I beg leave to withdraw my amendment.
Terminally Ill Adults (End of Life) Bill
Lord Falconer of Thoroton ExcerptsFriday 19th September 2025
(1 month, 3 weeks ago)
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Lord Falconer of Thoroton (Lab)
My Lords, I draw attention to my entry in the Register of Lords’ Interests, which refers to the facts that I have an assistant funded by Bernard Lewis to assist me in the conduct of this Bill and that Dignity in Dying funded the printing of the literature that I sent to your Lordships in connection with the Bill. I apologise for not mentioning this in my opening speech.
This has been a debate of the highest quality, probably the highest quality I have heard in 28 years in this House. Your Lordships brought passion, expertise and wisdom to the issue. I thought that every single speech that was made rose to the gravity of the occasion. I would wish to refer to every speech, but I cannot.
I pay particular tribute, however, to those of your Lordships on both sides—some people have mentioned them—who have identified their own personal suffering in relation to this. I pay tribute to all of those speeches and will mention just two of them. First, the speech of the noble Baroness, Lady Prentis of Banbury, was very striking. She will know that she has the wishes of the whole House with her. I also mention the speech of the noble Baroness, Lady Falkner of Margravine. She, too, has the wishes of the whole House with her.
The debate shows beyond doubt that this House will bring both expertise and human understanding to the important task of scrutiny that we must now undertake. I express genuinely my gratitude to your Lordships’ Constitution Committee and the Delegated Powers and Regulatory Reform Committee respectively. As I indicated in my opening speech, I will be bringing forward amendments to deal with many of the recommendations that they raise. I have to say that my experience as a Minister was that both those committees frequently made recommendations of the sort that have been made here requiring changes. I very much hope that, in consultation with the Government, I will be able to make those changes.
I also mention the status of this Bill. This is a Private Member’s Bill because it is a matter of conscience. No major political party agrees on whether or not it supports assisted dying, and I do not find that surprising. It has to remain a Private Member’s Bill for that reason. I should say, as my noble friend Lady Merron referred to, I have had assistance, as has my friend in the other place, the Member for Spen Valley, from the Government—civil servants and lawyers—seeking to ensure that the Bill is workable. That explains very many of the changes that have taken place. But, ultimately, this is a Private Member’s Bill and must be treated as such.
I believe that the Commons was very capable and proved able to properly scrutinise this Bill. It gave the Bill 100 hours of scrutiny. At the same time in this House, we are looking at the Children’s Wellbeing and Schools Bill, which, as it happens, is longer, and it got 40 hours of scrutiny. We are looking at a Bill for which, in the Commons, there were no guillotines, so every clause was debated, not just those that were reached before the guillotine fell. We are looking at a Bill that has had a very large number of Select Committees look at it. The last one reported in the Commons in March 2024. We have a job of work to do, but I earnestly ask your Lordships not to approach this Bill on the basis that it has not been properly scrutinised in the other place.
Baroness O'Loan (CB)
I thank the noble and learned Lord for yielding. I simply wanted to say that a number of Members of the other place have said that the Bill did not receive proper scrutiny in the other place. They have also said that they expected that it would receive scrutiny in this place because that is what we do. That is profoundly important, and I do not think that what the noble and learned Lord just said is actually correct. I would also say that there were a number of amendments tabled and a number of MPs who wanted to speak who were not permitted to do so. That is reflective of the fact that the Bill did not receive proper scrutiny in the other place.
Lord Falconer of Thoroton (Lab)
I am grateful to the noble Baroness for her intervention. I have laid before the House the facts. I recognise that some Members of Parliament say that the Bill was not given proper scrutiny. I wonder if those were Members of Parliament who did not agree with the conclusion—I do not know. I have laid before your Lordships the time that was spent and the fact that it got more scrutiny than government Bills.
The essence of this Bill is that those who are terminally ill—and that means that they have a diagnosis that they will die within the next six months—should have the option, subject to safeguards, to be assisted to take their own life. One of the features of this debate was the personal experience that so many people have had of how, had that option been available, it would have ended terrible suffering. That suffering is not often about the pain but about the lack of dignity and the profound desire to keep control, because that is what people want.
I believe, from my own experience and from talking to so many people, that having that option is important. The points that have been made against it, which I have listened to incredibly carefully, are, in essence, not that people should not have that choice but that it brings dangers with it. The dangers are, first, that people will be overpersuaded and, secondly, that it will affect society in other ways.
On the idea that people will be overpersuaded, the Bill provides for the following: first, a conversation with the doctor in which all the options, including the palliative care options, are laid out; secondly, that a doctor decides that it is a free choice; thirdly, that a second doctor decides that it is a free choice; and, fourthly, that a panel, consisting of a senior judge or a King’s Counsel, a psychiatrist and a social worker, concludes that the person is not being coerced, that they are capable of making the decision and that it is their free choice. As it happens, that is probably the most safeguarded procedure in the whole of our healthcare system. It is certainly the most safeguarded process when compared with terminal illness Acts in other countries in the world.
I profoundly believe that people should have this choice—a profound belief that is based not on either my spirituality or my lack of spirituality, but on looking at the evidence from other countries that this will not lead to people being overpersuaded. I have in mind those countries that already have a terminal illness Act. The one that has been in force for longest is the one in Oregon, but there are many other states in the United States of America that have terminal illness Acts that have been in force for 20 years and more. They do not have those safeguards. They do have annual reports and record-keeping of the highest sort about assisted death. They show no evidence of the coercion that some noble Lords referred to in this debate.
I would have expected that, if there were real evidence of that, somebody in the course of the debate would have referred to a case from one of those countries where there is a terminal illness Act showing that there was coercion. There was none. I am convinced, first, that the Bill has had proper scrutiny in the other place and, secondly, that there is no real danger in relation to coercion. Thirdly, I completely accept the point made by noble Lords who said in this debate that they wanted more palliative care—I want more palliative care, and we should do everything we can to promote it. However, as so many people said, it is not either/or—it is both.
Some 75% of people in Victoria, Australia, who have had an assisted death came from palliative care, and 92% in Oregon came from palliative care. The Select Committee in the Commons to which I referred, which reported in 2024, said that palliative care in many jurisdictions went up in terms of its resources. In answer to the question that was raised about what the effect will be on palliative care: on the basis of other jurisdictions, it will get better. In fact, the debate here has provoked the Government to spend more money on palliative care.
Many noble Lords have talked about language. I take no point about language. I simply say this. For over 10 years of having been engaged in this debate, I have found that, for people who are terminally ill and want an assisted death, nothing upsets them more than saying that that is suicide. They hate that because of the impact it has on those they leave behind. What they feel is that they are dying anyway, and what they want is some degree of control over when and how it will happen.
I turn briefly to what happens next. I very much welcome my noble friend Lady Berger’s Motion to set up a Select Committee that can hear evidence. I very much welcome that it is time-limited, because, as my noble friend and I indicated in the letter we sent to every Peer, it allows for the Bill to go through all its phases after 7 November. I will therefore support my noble friend’s Motion to set up a Select Committee.
We have a job of work to do. I agree with everybody that, plainly, this House must give the Bill a Second Reading. We must listen to the evidence that my noble friend Lady Berger’s Select Committee will supply, and then we must do what we do so well, which is scrutinise and amend the Bill as necessary, and then send it back to the other place for a decision.
I have heard some noble Lords say, “Oh well, we can say no to this Bill”. Ultimately, on an issue such as this in our system, somebody has to decide. It is not the electorate because it is never in anybody’s manifesto, with the exception of the Greens. Therefore, Parliament has to decide. Ultimately, in our system, that means it will have to be those who are elected—not those who are unelected—who make that decision.
I end by expressing my profound gratitude to the House for the attention and quality of the debate it gave to the Bill. I commend this Bill to the House.
Lord Falconer of Thoroton
That the bill be committed to a Committee of the Whole House.
Coronavirus Bill
Lord Falconer of Thoroton ExcerptsTuesday 24th March 2020
(5 years, 7 months ago)
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Lord Falconer of Thoroton (Lab)
My Lords, I thank the Minister for his clear description of the Bill and the openness with which he has treated our team engaged in it; personal trust is very important in these matters. I declare an interest: my youngest son is a doctor in an NHS hospital in London, which is now almost exclusively devoted to treating those with Covid-19.
Her Majesty’s loyal Opposition support this Bill. In normal times, it would be utterly unacceptable, but these are not normal times. As long as the emergency lasts and these powers are necessary, they should be available to the Government. We also support the instructions, to be backed subsequently by legal enforcement powers, that the Prime Minister announced last night. Inevitably, more detail is needed about the measures announced by the Prime Minister, but there is no doubt that there needs to be immediate compliance by the public with the “stay at home” message. Legitimate issues about the limits do not detract from the Government’s message to the country: stay at home unless you have a very good reason for leaving. Can the Minister provide details of the legal powers that will be introduced to back up the Prime Minister’s message last night? When will they be introduced and what is the basis for them?
Again, we in the Opposition will assist as necessary in ensuring that effect can be given to the Prime Minister’s statement. The Bill before us today can be improved to make it more effective in fighting the virus, to give more support to those on the front line in the struggle and to provide better economic security for the public. We recognise that full scrutiny cannot be given to the Bill—the needs are too urgent and the time too short. We will focus on the key issues and table only a small number of amendments in Committee tomorrow. In these circumstances, the right course for the Opposition is to assist in getting the Bill on to the statute book with focused amendments on the key issues, but also to ensure that each power lasts only as long as is necessary to fight the virus and that there are regular time-restricted limits on its continuation. If it needs to continue beyond the sunset clause, the time before sunset should be taken to improve it, as, inevitably, time will reveal it can be improved.
Parliament has a critical role in the weeks and months to come in legislating, scrutinising the Government and providing national leadership. It cannot function as normal: we cannot meet like this, debate like this and do our job like this as the crisis develops. We need urgently to work out remote and different ways of doing our job—but our job is to hold the Government to account, to provide national leadership and to legislate when the country needs it. The country will need more scrutiny, more leadership and more legislation than it has at the moment. In this national effort, we need to ensure that the Government are moving fast enough and clearly enough, and that they are giving the right leadership. We will press hard to achieve that. There need to be clear messages to be public and they need to be well publicised. The Government need to recognise that doing their best to alleviate the most acute economic anxieties for the employed, the self-employed and those in the gig economy alike is vital to deliver compliance with those messages. We will press hard to ensure that proper security is given and that the Government move as fast as they should.
We are very conscious that part of what the Government must do is to ensure that the public comply with their instructions to stop the virus spreading. We in opposition must take especial care not to undermine the chances of those instructions being acted upon. We are under no illusions that an epic struggle is currently being waged on all our behalf by the NHS. Hospitals up and down the country have been reconfigured incredibly fast to fight the Covid-19 virus. Large teaching hospitals have devoted whole floors to the disease. Smaller district hospitals have effectively reduced their non-Covid-19 workload as much as possible to accommodate the cases and become largely Covid-19 hospitals. Medical staff have had in many cases to reskill from their normal specialties. They are seeing a frightening influx of patients with the disease that is growing every day. The risk to medical staff is significant. If the patients are hospitalised, they will have a serious illness with Covid-19, and those patients deteriorate often very rapidly and are then required to be moved to ITU and ventilation. The demands on the NHS staff are immense; the pressure is huge.
To ensure that staff have access to all the personal protective equipment they need, make sure that they are all trained in the use of PPE, and to start to test all NHS staff to see whether they have or have had the virus when the antibody testing becomes available are critical measures. It has taken too long to sort out the PPE issues, and the testing of NHS staff has not started. Can the Minister give us an update on the testing capacity and how it is to be rolled out?
The debt of gratitude we owe as a country to the NHS staff engaged in this struggle is incalculable. When the history of this appalling period comes to be written, they will be the true heroes. The rest of us— parliamentarians, Ministers and members of the public—must not let them down. The risk by now is very well known that the NHS will be overwhelmed by the number of cases. There will not be the staff, critical care beds or ventilators to deal with the pandemic. We must do everything to ensure that that does not happen.
I also recognise and pay tribute to the work being done in central government to craft our response to this crisis. The pressure on them is immense. We have an excellent Civil Service, which has worked on as the illness has reduced its number. This is a collective battle; we fight as one nation. The co-operation with the devolved Administrations has been close and effective. I pay tribute to them for the incredibly impressive work they have done.
The noble Lord, Lord Bethell, told us yesterday that there are currently 3,700 critical care beds and that the total usage was currently 2,428, of which 237 are Covid-19 related. He told us that the Government’s ambition is
“to increase this dramatically to perhaps 30,000 in time for the crisis arriving in full.”—[Official Report, 23/3/20; col. 1634.]
Will he update the House as to the number of critical care beds currently available, what the total usage is, how many are being used for Covid-19—that is, the increase from yesterday—and the dates on which the increase of 25,000-plus are expected to come on stream?
On the detail of the Bill, my noble friend Lady Thornton will deal in her speech with issues relating to the health and social care workforce, the reduction of administrative burdens, and financial support. There are education issues, which my noble friend Lord Watson will deal with. I will deal with the other issues.
First, on the sunset clause, there is understandably huge pressure to get the Bill into law so that the Government have the necessary powers to tackle the coronavirus pandemic. Given these circumstances, a sunset clause is necessary and vital, and a prudent mechanism. The position is that there is now a two-year sunset clause, but a power in the Commons to stop the continuation of the Bill after six months, 12 months, 18 months and two years.
Moreover, there is provision for a debate in both Houses and the power to stop after 12 months. That power, the six-month power, is an all-or-nothing one. It is inevitable that some of these provisions will work while others will not. Can the Minister indicate why there is no power to stop some of these powers at six months, 12 months and 18 months as we learn more about how they are working? Will the Government consider whether they would introduce such a power?
I move from the sunset clause to the provisions for containing and delaying the spread of the virus—social distancing. The Bill sets out provisions to restrict potentially infectious people from being in contact with each other as well as a power to restrict or prevent them from moving around, or to detain them. It also contains powers to prevent events and gatherings, to close premises and to restrict port activities. It does not contain powers to stop people going to work or to stay in their homes, which were the key measures announced yesterday. We would be willing to assist in incorporating those powers. Can the Government tell us what their intentions are?
On immigration, can the Minister indicate what the Government are doing to maintain the health and safety of people currently detained in immigration detention centres? Can he also confirm that people will not be held in detention centres if they cannot be removed due to airport closures and travel restrictions related to the coronavirus?
I turn to the courts. We broadly agree with the provisions related to increasing the circumstances in which video links can be used. Can the Minister give an assurance that they will be used only in the interests of vulnerable defendants and those who are digitally excluded? Will those who are unable to get legal advice be properly protected?
I would be grateful if the Minister would touch on the issue of prisons. What is happening there gives rise to especial difficulties. Can he indicate what is being done in relation to the prison population? Can he further confirm what powers the Government have to deal with this position and what are their intentions in relation to the exercise of those powers?
The Bill contains measures related to the management of death. We understand that there may be reduced capacity to register and manage deaths as a result of the pandemic and that it may be necessary to relax the rules around the registration of deaths and cremations to ease the burden on the NHS and to deal with the issue. Again, we agree to these, but only for as long as the emergency lasts. The House will be aware that concerns have been raised about how cremations could conflict with some religious teachings. Cremation is forbidden in Islam and Judaism, and therefore the possibility of forcing a cremation on a loved one from those communities would add further anguish and trauma to bereaved families who may themselves be in self-isolation. We understand that these provisions are designed to deal with a potential surge in deaths and a lack of grave space capacity. What steps will the Government take on this? In particular, are there plans to consult the deceased person’s family and local faith representatives to find suitable alternative arrangements?
I turn to supporting the homeless. The coronavirus outbreak presents specific risks to the homeless because they are a high-risk group. Rough sleepers and those living and sleeping in shared spaces such as hostels, night shelters and day centres are at particular risk as they are unable to self-isolate. Further, these services cannot close down because the people they support are then forced back on to the streets where they are at even greater risk. Can the Minister indicate what steps the Government are taking as regards the homeless in light of the announcement last Friday that the Welsh Government will make £10 million available to Welsh councils in order to block purchase rooms in hotels, bed and breakfasts and student accommodation to act as additions to the existing provisions for the homeless? Are the Government doing the same in relation to England?
The Bill contains provisions related to the giving of information about food supplies. The public are understandably worried about perceived shortages of essential products, empty shelves and securing online delivery slots. The supermarkets are doing all the right things, including redeploying their existing staff and hiring new team members to ensure swift restocking where supplies exist, as well as establishing schemes to assist the elderly and key workers.
Supply chains are stepping up their efforts to ensure that sufficient quantities of essential products are available for sale. These efforts are appreciated and will continue to be vital in the weeks ahead.
The Bill includes powers to compel food supply chain operators to provide information on, and assessments of, any disruption to food supplies. We understand that such information is currently being provided voluntarily, meaning that it is intended as a reserve power. We agree with this approach but note that it does not, in itself, do anything to guarantee the availability of food and other items. What discussions are the Government having with supermarkets and supply chains to maintain public confidence?
We will explore all these issues in Committee. We will play our part in supporting the fight against this virus. Sometimes, that will involve telling the Government that they are wrong; always, it will involve giving the country confidence that we in the Opposition—and we in Parliament—are working together as best we can to provide security and safety for the country, which rightly expects the best from us. We are determined to give it.
NHS: Cancer Treatments
Lord Falconer of Thoroton Excerpts(7 years, 9 months ago)
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Lord Falconer of Thoroton (Lab)
My Lords, there is a lot of skulduggery in politics. Tessa said that this was not about party politics. It is not about party politics, but it is so much about politics. Looking to my left and to my right, I see every Labour Peer I have ever met—and a large number I have never met. Looking further to my left, I see innumerable Members of Parliament and, looking to the Public Gallery, I have never seen it as full as it is today. Every one of them is a friend or a member of the family of Tessa Jowell. In the decades that I have known her, she has done what everybody in the country wants their politicians to do—to earnestly follow noble causes and to try to make life better for other people. Tessa has been doing that in every way on every day for years and years.
These last months, for Tessa, have not been easy, but three things shine out. First is the extent to which she has touched other people’s lives. She has had masses and masses of correspondence from people she has helped. Just one sticks in my mind. It concerns a journalist she had met when she was Secretary of State for something. The journalist was having trouble, having just had a baby. Tessa went to a far part of south London—I apologise to the people of south London—just to see the journalist and offer her assistance in relation to bringing up her new baby. That was absolutely typical of Tessa.
Tessa said that we should try to bring some kindness into politics. That is what she has done all along. There is so much to go with Tessa. She is going to make such a difference in what happens in the world. When the test of character came for Tessa on 24 May 2017—and, my goodness, it came—my goodness me, she passed it.
NHS: EEA Doctors
Lord Falconer of Thoroton Excerpts(7 years, 11 months ago)
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Lord O'Shaughnessy
I thank my noble friend for pointing that out. It is extremely reassuring to know that the message is getting through. We as a department and as a Government have a job to do in making sure that everybody hears that message of reassurance, because we want those EU workers to stay and contribute to our NHS.
Lord Falconer of Thoroton (Lab)
My Lords, what work has been done by the Department of Health to identify what impact leaving the European Union is going to have on the health service, and what is it doing about it?
Lord O'Shaughnessy
The noble and learned Lord will know that a variety of reports have been published. I am sure that he has taken the opportunity to sign in and read them, which is very welcome, and I encourage all noble Lords to do that. One of the greatest things that we have to do is look at workforce issues. I come back to the point about being able to provide reassurance to people who are thinking of leaving but have not yet done so. I stress that we have more EU and EEA people working in the NHS, which is a very welcome thing and I hope they take comfort from that.
Health Transition Risk Register
Lord Falconer of Thoroton Excerpts(13 years, 6 months ago)
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Lord Falconer of Thoroton
My Lords, whether this is a discreditable attempt to cover up something that is embarrassing for the Government, I do not know; that is for others to decide. The Statement represents quite a significant change in the Government’s position towards the use of the veto. Everybody in this House would agree with the noble Earl that there needs to be a safe space in which policy is formulated. Safe space means that you can talk to your civil servants, they can talk to you, and it will not be disclosed. That was fully reflected in the Freedom of Information Act, which allowed for that safe space. Again, as the noble Earl rightly says, there is a balance to be struck between preserving that safe space and the interests of openness.
The importance of the Freedom of Information Act was that, instead of it being decided by the Government or officials, it would be decided in accordance with the law and enforced within the courts. I understood the noble Earl to say that the Government have no complaint with the application of the law by the First-tier Tribunal and that is why they are not appealing. The position, therefore, is that the law was properly applied by the tribunal and the statute said that it would be the courts that determined where the limits were to be drawn. Everybody recognised that, in very exceptional circumstances, the veto would be used. Ministers at the time referred to such circumstances as, for example, when an informer would be inadvertently named if there was disclosure or if our foreign position would be damaged in a way that people could not work out. What has happened here—the noble Earl was frank about this—is that the Government simply disagree with the courts about where the balance should be struck. What does the noble Earl feel that that says about the Government’s view of the rule of law?
Earl Howe
My Lords, the law governing the release of government documents is the Freedom of Information Act 2000. The Act specifically recognises that the Government are entitled to consider all aspects of policy formulation in private. It provides an exemption to allow that, but it also allows Ministers to exercise a veto on the release of information if they have reasonable grounds for doing so. We believe that we do have reasonable grounds for doing so.
Health and Social Care Bill
Lord Falconer of Thoroton Excerpts(13 years, 7 months ago)
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Baroness Murphy
That is not the implication of my remarks at all. The Information Commissioner has not released his full judgment and will not release his reasons for some time, so we cannot debate that.
This comes back to what my noble friends Lord Birt and Lord Wilson and the noble Lord, Lord Fowler, said about what these risk registers contain. I know very well because I have written risk registers for the National Health Service. I have sat down with my chief executive, and with my chairman when I was a chief executive, and we have written these things for public consumption. The Cabinet Office has a very nice risk register, but it is for public consumption; it is not to do with the private discussions between senior civil servants or advisers. I have worked as an adviser at the Department of Health, and this is not the kind of thing that comes up in conversations between Ministers where you want to be really frank.
We now have an out of date, almost two years’ old risk register that will not be relevant to the passage of the Bill. We have assessed the detailed risks of the Bill better in this House than in any other forum I can imagine. Those who have sat through the progress of the Bill, line by line and word by word, know very well that we have improved it. I am sure there are areas that many of us would still like addressed, but for all kinds of reasons we are not able to do so. I beg the House not to delay the Bill. If we delay it further we will have no guarantee that we will be able to get it through before Prorogation. I see this simply as a ruse not to implement these polices. We would gravely let down the National Health Service by not implementing them, and I urge noble Lords not to support the Motion of the noble Lord, Lord Owen.
Lord Falconer of Thoroton
I support the Motion of the noble Lord, Lord Owen. I understand that he is saying, “Let us look at the reasons for saying that the risk register should be made public”. He understands that it must be done before Prorogation, so I am not entirely clear why the noble Baroness, Lady Murphy, is saying that this will cause delay. I hear what the noble Lord, Lord Wilson, says—you do need to strike a balance between appropriate confidentiality in relation to what the Government do and the need for openness.
The Freedom of Information Act was passed so that it would not be government Ministers or civil servants who determined what was kept confidential but an independent tribunal. We have reached the position on this issue at which Professor Angel, who is regarded as probably the best chair of an information tribunal that there is, has struck the balance. Take it from me that Professor Angel very well understands the need for proper confidentiality in relation to government. He and his tribunal are not remotely people who would make everything public. They well understand that lots of government matters have to be kept under wraps for the purpose of good government. If a tribunal chaired by Professor Angel said that we should see this, and he reached that conclusion on the basis not of politics but of good government, my instincts are that we should listen more to what he said than noble Lords around this House who have an interest in trying to rush the Bill through. I am struck by the modesty of the amendment by my friend, the noble Lord, Lord Owen. It says that we should see what Professor Angel said before we reach a conclusion. I strongly urge the House to take that course.
Lord Martin of Springburn
My Lords, I have sat for many hours with my noble friend Lord Owen on this Bill. We both have an appreciation of the health service that came from our parents. My noble friend’s father was a medical practitioner while my mother and grandmother spoke of how things were before the National Health Service came into being. I have no desire to do any disservice to the health service. In fact, in the amendments put before this House, I voted contrary to the wishes of the Government.
Yet, on this matter, there is a point that information passed between civil servants and their Ministers should be kept confidential. The argument has been put about the Information Commissioner. Is anyone suggesting that the Information Commissioner is doing something wrong? The answer is no. The Information Commissioner works from a piece of legislation that both our Houses gave him. That basically says that if information is in data—in written form—then it should be made public. What will now happen is that when Ministers go to get advice, they will not get written advice. Ministers and other high officers of state are entitled to advice from their civil servants or officials. They get confidential advice. Freedom of information does not cover all information, only written information. No one can force a Minister or any other officeholder to hand over information given orally. That is exactly what will happen now: information will be given orally. That is not helpful to the quality that we look for. When a civil servant or officer puts something down in a document, they give a lot of thought to it. As the noble Baroness, Lady Murphy, said, there are several people behind that document when it is published. It is there for the Minister or officer to look at. On this matter, I cannot support my noble friend Lord Owen. I support the Government.
There was a previous debate on this matter. It was stated that the previous Labour Government should give the risk register for, I think, the third runway at Heathrow. Justine Greening was the MP who pushed for that. First, the Government did not hand over that information in a matter of minutes. It took a long time for them to hand it over. Secondly, this was leading up to a general election where parliamentary incumbents around Heathrow and parliamentary candidates in the Labour Party were deeply worried about that risk register.
I have been very supportive of my friends in the Labour Party, and they know that. In fact, I have a better voting record with the Labour Party than some of its card-carrying members. However, they should ask themselves when the road to Damascus came about. It did not come about two years ago. Every time I granted an Urgent Question to a Minister or to the House, there was a Minister complaining that they did not want to give information to the House but would rather give it to a television studio.
I have had a great deal of criticism—costly criticism—about going to an appeal, so I know about appeals.
Health and Social Care Bill
Lord Falconer of Thoroton Excerpts(13 years, 8 months ago)
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Earl Howe
My Lords, many of the risks associated with the Government’s reform programme, as the noble Baroness knows, have already been extensively aired—not least in the impact assessment, in my statement of 28 November last and, indeed, in the whole passage of this Bill—but I fully recognise the concern that we should respond swiftly to the tribunal’s decision. We are making every effort to update noble Lords on our intention as soon as we possibly can. However, as I have always said, this is not a decision for the department alone and any way forward has to be agreed and signed off across Government. I cannot make a decision without agreeing it with my fellow Ministers in other departments and I am sure noble Lords will appreciate that we have only just received the tribunal’s decision.
Lord Falconer of Thoroton
My Lords, I am dismayed by the Minister’s answer. Surely it must be the case that Parliament would be assisted by seeing the objective assessment of what the risks are to the National Health Service from the Bill becoming law. I understand that he is saying that the Government have already said what many of them are, but if that is the case then what is the harm in disclosing the list of risks that the objective assessment by civil servants gives of the introduction of the Bill? Surely Parliament would be assisted by having as much information as possible. It cannot be the fault of the information tribunal that we are getting no answer at all from the Department of Health.
Earl Howe
My Lords, no Government have routinely made risk registers available. This is a matter of principle. It is not just that the issues associated with the Health and Social Care Bill have been extensively aired—as I said, they have been—but it is a point of principle whether a risk register that is integral to the formulation of policy should be published.
The tribunal agreed with our assertion that the strategic risk register should not be published but disagreed when it came to the transition risk register. Our difficulty is that the case that we made for both documents, which are of a similar structure and have similar content, was based on essentially the same arguments, which makes it extremely difficult to make a decision on whether or not to appeal the decision. I hope, as I say, that the tribunal will give its reasons for the judgment as soon as possible so that we can determine the right way forward.