Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Friday 5th December 2025 Lords Chamber

[Baroness Cass (CB)]

My Lords, as Sarah-Jayne Blakemore has been widely referred to, it might be useful to directly quote her. She said:

“Most of these age cutoffs have not been based on what we know about brain development, because they were decided way before we knew anything about how the brain develops during adolescence. So what I would say is that those kinds of decisions about age cutoffs”—


she is referring to the various age cut-offs for drinking, marriage and so on—

“should incorporate the new knowledge about brain development during adolescence. On the other hand, this is a question I’m asked often, I don’t think the neuroscience can provide an age for you. We can’t say, ‘Oh, the neuroscience shows that the brain becomes adult at age 18 or 24’ or whatever it might be. It’s much more complex than that”.

She goes on to describe how different brain regions develop and mature at different rates, and to talk about the individual differences in the speed of brain development:

“So what I would say is that what we know from neuroscience is the kind of age range, the very broad age range when the brain becomes mature and adult. And that’s much later than 18, between 20s and 30s for most people. So of course that cannot generate an age at which you become legally adult”.

That is what Sarah-Jayne Blakemore has said. On that basis, I support the suggestion from the noble Baroness, Lady Finlay, that, between the ages of 18 and 25, there should be enhanced and careful assessment, taking account of that perspective.

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting at this stage. This has been a very good debate, and it might be helpful if I indicate what my position in relation to this is. The thinking behind 18 is that that is the age at which you can make your own decisions about medical care. If you are suffering from a terminal illness, you can decide at 18 whether you want to withdraw treatment, for example, or what the treatment should be.

In answer to the noble Baroness, Lady Berridge, we were aware of the different views about when your brain and maturity develop, and what the noble Baroness, Lady Cass, said is absolutely correct—she read Sarah-Jayne Blakemore’s view—in that these age cut-offs that the law imposes generally are not based upon a close study of neurology; they are the law’s attempt to reflect maturity. I am indeed very aware of the fact that if you are 18, you may be more emotionally impulsive and more easily influenced than somebody of 25, 24 or 23. Equally, anybody who has had contact with people who are young and terminally ill will have found that some 18 year-olds are incredibly thoughtful and mature and some are not, for obvious reasons.

I am very influenced by the fact that I have been listening to people expressing real concern about this issue in this House. I still think 18 is probably the right age, but I am very influenced by what the noble Baronesses, Lady Finlay and Lady Cass, have said: that maybe the answer is some assurance that there is a more intense assessment for people aged between 18 and 25. The Bill says that you can have an assisted death only if you have

“a clear, settled and informed wish to end”

your life, and it is being done voluntarily. How can we be sure about those aged between 18 and 25? Two doctors and a panel have to make the decision, but some additional thing might be required.

We are slightly going around in circles again and repeating ourselves, so I suggest that I talk in particular to the noble Baronesses, Lady Cass and Lady Finlay, and that we come back on Report and see whether we need a more thorough assessment for people aged between 18 and 25—although I am not saying I am going to change the age of 18. That is broadly my position.

[Baroness Lawlor (Con)]

My Lords, I thank the noble and learned Lord for his intervention, for which I am very grateful. I point out first that I think that many noble Lords feel there is a very great difference between a decision to refuse treatment or withdraw treatment, which may or may not end one’s life, and to ask for something which will definitely end one’s life. That point is brought up by supporters of the Bill.

I will speak to my Amendment 5 and to the related Amendments 250, 258, 305 and 338.

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[Lord Markham (Con)]

The point I was making—I am sure he will speak for himself in a moment—was that he was willing to look at that. He said that he was more likely to look at additional safeguards between 18 and 25. But I think he said—again, correct me if I am wrong—that he is willing to have further discussions with a lot of the experts we have here, including the noble Baronesses, Lady Cass and Lady Finlay, and, I am sure, others, to look at the whole question around age, as a product of the good debate that we have had here today.

I think I heard that the noble and learned Lord is taking on board the comments; he is willing to go away and look at this whole question with the experts here and, I hope, come back with something that reflects the reasonable view of everyone here today. I think we are being shown a way forward. I am keen to hear later about a lot of other things, such as the residency question and a lot of the other groupings, so at this point, I think we have what we are looking for—have we not?—in terms of a good discussion on this. I hope that we can go on to talk about some of the other groups.

[Lord Falconer of Thoroton (Lab)]

Just to clarify my position, I was responding to the debate which gave rise to real concerns about the age. I understood the noble Baronesses, Lady Cass and Lady Finlay, to say that perhaps a way forward would be to see whether there were additional safeguards from 18 to 25. That would involve me having a discussion with them and, if they were satisfied that there were additional safeguards and that they thought the age of 18 was right, that would obviously have an effect on me. If they put other arguments, I would obviously take them on board as well. My experience of the House is that, if one sees a way forward, before one continues making the same arguments as before, one sees whether a compromise that sensible Members of the House think would be enough works and whether it could attract support on Report. That was what I was thinking.

[Baroness Berridge (Con)]

May I draw the attention of the noble and learned Lord to the fact that the amendments I have laid in relation to EHCPs and additional assessment criteria are currently in group 7? If he has that meeting and that compromise might be available, that may enable me to withdraw some amendments.

[Lord Falconer of Thoroton (Lab)]

I very much welcome that suggestion. I also welcome the suggestion of the noble Lord, Lord Harper, who, as I understand it, is saying that we should also look at the clinical diagnosis of people. The noble Baroness, Lady Finlay, also raised that point. I am more than happy to include both those things, and if they both want to come, I would welcome them.

[Noble Lords]

Front Bench!

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[Baroness Merron (Lab)]

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

[Lord Falconer of Thoroton (Lab)]

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

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

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

[Lord Mackinlay of Richborough (Con)]

I raise a mirror to the noble and learned Lord regarding his comments in 2021 during the passage of the Police, Crime, Sentencing and Courts Bill. His view was very clearly that 21 is the unequivocal age of adulthood. I assume that he has heard the views across the Committee. The noble Baroness, Lady Lawlor, had an alternative—18, 25 and 21 were advanced. Would it not be a useful compromise if he were to declare to the Committee today that he would actively consider 21 as the right age—as he did when considering whole-life orders in a previous Bill? That would be very helpful.

[Lord Falconer of Thoroton (Lab)]

On the comments that the noble Lord refers to, in relation to whether you should impose a whole-life term on somebody under 21, I recognise, as the Sentencing Council does, that issues of immaturity might make that inappropriate in certain cases. However, on this position, the question is: what is the age at which you might be capable of taking a settled decision? The concerns that the Committee has expressed about people aged between 18 and 25 make me think that the right course is to consider whether there are ways to deal with that that the House would feel are satisfactory on Report. I think that is the right course.

[Baroness Fox of Buckley (Non-Afl)]

Could I have some reassurance that with changing the franchise to 16, there will not be any slippage in relation to this Bill from 18 downwards? That is a reasonable question because, according to some people, 16 is now mature enough and adult enough to decide the fate of the country and decisions made here. Is there not a danger? Can he guarantee that this will not happen?

[Lord Falconer of Thoroton (Lab)]

I guarantee to the noble Baroness that the age is not going to go down from 18 as far as this Bill is concerned. The future is not in my gift, unfortunately. However, as far as the future is concerned, it is extremely unlikely that a subsequent Parliament is going to reduce that age.

[Baroness Berger (Lab)]

My Lords, this has been an important debate that really has encapsulated what this House is here to do. There are, of course, other amendments in this group from the noble Baroness, Lady Goudie, and the noble Lord, Lord Moylan, that we have not discussed. It is worth just putting on record that these seek to prevent discussions with children and will be an essential question to scrutinise and discuss in the next group.

I just wish to very briefly respond to three points that have been made during this group, because it is relevant and important to conversations that will no doubt continue because of the weight of opinion and support that has come forward for these amendments.

I listened very closely to the noble Baroness, Lady Fox, and I just want to make clear that, for all these young people, it is not the exception. It is impossible to imagine a young person who would not have an EHCP. That is the context in which I presented and spoke to these debates. It is not just a small group: we anticipate all of them, apart from a young person who might receive a terminal diagnosis over the age of 25 and will not have time to have an EHCP. Otherwise, we are considering all young people in this context of an EHCP that local authorities have a statutory responsibility for, and it is in that context that I make those representations.

I listened very closely to my noble friend Lord Winston, and he did make some important comments. It is clear that there are some elements of brain development that do evolve and complete by the age of 18, but there are many others that do not. Global experts and authorities on adolescent brain development such as Professor Laurence Steinberg, Professor Casey, who is the expert on neurobiological maturation, and Professor Jay Giedd, who is the MRI pioneer in adolescent brain research, all say that the prefrontal cortex responsible for executive functions does not reach its maturity until the early to mid-20s, continuing to develop well past the age of 18, and that an 18 year-old does not yet have the capacity.

I am reminded again that we have heard a lot of comments from Professor Sarah-Jayne Blakemore. She is the leading UK neuroscientist on adolescence, and she has said that an 18 year-old does not yet have the fully mature capacity for long-term planning and evaluation of consequences that characterises adult executive functioning. We should listen to her comments very closely.

Finally, my noble friend Lady Hayter said that young people would not be asked—it would be something they would request. I would point out that the Bill does enable a doctor to raise this with anyone from the age of 18. It is in that context that I have brought forward these amendments.

I will not refer to all the other important contributions and comments that have been made, but I want to make one final point. It has been very clear from the debate in the other place that even some of those most in favour of assisted dying in principle are highly concerned about the risk of children and young people being drawn into it. The amendments in this group have sought to act on both their concern and the evidence that this House took during our own Select Committee. In all the debates we have had on the Bill, and will no doubt continue to have, we have to grapple with the simple fact that there is no going back if we get it wrong. For young people in particular, we should, as we have been asked to do, err on the side of caution.

I am very glad to hear that my noble and learned friend Lord Falconer will consider an assessment for those aged 19 to 24, but I urge him to accept the simplest and strongest safeguard of all, which is to raise the eligibility to 25. I look forward to further discussions on these matters. With that, I beg leave to withdraw the amendment standing in my name.

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Moved by

[Lord Falconer of Thoroton]

6: Clause 1, page 1, line 6, after “person” insert “has a preliminary discussion with a registered medical practitioner (see section 5) and”
Member’s explanatory statement
This is a drafting change.

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[Lord Falconer of Thoroton (Lab)]

In this group, which is group 3, there are a number of amendments put forward by me but also two amendments put forward by Back-Bench Peers that are in the same sort of area. These are drafting changes. If anybody objects to any of the drafting changes, I will not move them when the time comes. If there is no objection, I will move them as long as there is going to be no vote at this stage.

Can I just go through them very quickly? Amendment 6 makes it clear that the person, who has to be over 18, has to have the preliminary discussion referred to in Clause 5, and it is making clear something that I say is already explicit in the Bill. Amendments 8 and 9 in the names, respectively, of the noble Lord, Lord Moylan, and the noble Baroness, Lady Goudie, seek to make explicit the same thing, and I hope they will accept that I am giving effect to what they are saying in relation to that.

Going on to another topic of drafting changes, Amendments 290, 366 and 931 in this group get rid of a duplication issue. Everybody wants domestic abuse to refer to coercion and control, and financial abuse. That has been achieved by incorporating the definition of domestic abuse in the Domestic Abuse Act 2021. In some parts of the Bill, as it is currently drafted, we have left in the wider definition of domestic abuse, which is now duplicative because of bringing in the definition of domestic abuse that is at the top of page 1 of the Bill; so Amendments 290, 366 and 931 remove the duplicative effect.

Amendments 332, 417, 418, 419 and 425 deal with the situation where the doctor—one of the two doctors who has got to give the assessment—cannot or will not continue to act. As currently drafted, you can get a replacement doctor only if the doctor who will no longer agree to act or cannot act has either died or suffered illness. These amendments delete the word “illness” and simply provide for a mechanism where, if the doctor cannot or will not continue to act, you can get a new doctor.

On Amendment 405, Clause 12(5) requires that the doctors who are doing the assessment make sure that there is appropriate adjustment for language and literary barriers. I am putting forward a new draft that is clearer but does not in any way change the sense.

Under Amendment 413, where a doctor has a doubt about something and is one of the two assessing doctors, he has to get a second opinion on the clinical diagnosis for the person. In relation to the second doctor, the Bill said that, if he had a doubt, he could rely on the opinion obtained by the first doctor, but that seems to us to be illogical. If the second doctor has a doubt, even after reading that opinion, he should get an opinion of his own, and that is the effect of Amendment 413.

Amendment 416 is the final drafting amendment. It redrafts Clause 13(3), which deals with the situation where the second doctor has said no, he does not think the conditions are satisfied. In those circumstances, you can get another doctor to come in. We have redrafted Clause 13(3) to make it clear that, if the second doctor says yes, he has to give explicit reasons why he is disagreeing with the first second doctor. I commend these drafting changes and beg to move Amendment 6.

[The Deputy Chairman of Committees (Baroness Scott of Needham Market) (LD)]

My Lords, I must inform the Committee that, if Amendment 6 is agreed to, I will not be able to call Amendment 9 by reason of pre-emption. We now come to Amendment 7, which is an amendment to Amendment 6.

Amendment 7 (to Amendment 6)

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That is what she said in the other House. Why is this now being watered down?

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting, but I think there is a profound misunderstanding. Let us look at Clause 8, because the noble Baroness, Lady Coffey, is making a very important point. Jess Asato was incredibly keen to specify that training in respect of

“domestic abuse, including coercive control and financial abuse, is mandatory”.

Clause 8(8) says:

“The regulations must provide that the practitioner must have had training about the following”,


and paragraph (d) says “domestic abuse”. Subsection (10) says that training on domestic abuse must include

“training in respect of … coercive control and financial abuse”.

That was the point that Jess Asato was keen to establish.

Noble Lords will see at the top of page 41 of the Bill that the definition of domestic abuse

“includes behaviour that is controlling or coercive or … economic abuse”.

What is happening here is not a watering down of any of that. It is simply avoiding duplication between Clause 8(10) and the wide definition of domestic abuse in Clause 56. I understand why the noble Baroness might be confused about it, because it is slightly complicated, but that is the intention. It is not for one second to water down any of the protections.

[Baroness Coffey (Con)]

My Lords, I do not think I am confused at all. I know what Jess Asato tried to get into the Bill to give her assurances, and that something has changed. I had moved on to talk about the amendment from Jack Abbot, which was very important.

The issue of illness is an example of where the Government said they had worked with the Bill’s sponsor. The challenge of this group—I am thinking about what the noble Lord, Lord Birt, said earlier—is that we are covering multiple issues on the basis of drafting changes. I would rather get into the substance of some of this when we get to later groups. However, Clause 14 says that, in the very unlikely circumstances that the doctor who agreed to give a second opinion “dies” or “through illness” is unable to continue, the person has the right to seek a second opinion elsewhere. My point is about removing “through illness”, which was specifically included the Bill. I am trying to understand why the noble and learned Lord is seeking to do that. I have already heard him say that you can just find another doctor, but I am particularly keen to hear from the Government their view, because they worked with the Bill’s sponsor in the Commons to get this phrasing about illness in.

The sponsor’s Amendment 416 is to do with independent doctors and Commons Amendment 459, and there is more than one reference to this issue. There was significant debate when Sarah Olney introduced her amendment in Committee in the Commons seeking to reduce the possibility of abuse by making sure that the second independent doctor has available the reasons why the first independent doctor concluded that the person was not eligible. My interpretation of the amendment tabled by the noble and learned Lord, Lord Falconer of Thoroton, is that that goes away and there will not be two reports, and the amendment speaks further about aspects of the reports.

This amendment brought attention from other MPs. Lewis Atkinson talked about recognising that the provision of five different touchpoints of assessment—I appreciate the effort that has gone into trying to bring in safeguards around these matters—is one of the strengths of the Bill and that each assessment should be done in a way that can be progressed with more information. On the Bill’s record-keeping provisions, the assessment should become increasingly informed throughout the process, and therefore there should be an opportunity for a lot of those things to be shared with the panel, as the Bill proposes. Kim Leadbeater said that she was minded to support Sarah Olney’s amendment, but, again, some of those changes are being taken out.

I am not entirely clear about Amendment 417. I somewhat understand the disability definition, although there is only one reference to Section 6 of the Equality Act 2010 anywhere.

This group of amendments needs careful scrutiny as we go through the different groups for later discussion. One of the aspects that we need to make sure of is that the extensive concessions made in the other House do not all of a sudden, through just a few changes here and there, go away. In fact, as we know, in this House we are even considering what further safeguards there could be. One of my reasons for rising today was to bring this to the attention of the Committee. I am not suggesting that the noble and learned Lord, Lord Falconer of Thoroton, has done this in bad faith. He may well think that this is just being more efficient, but the extensive debate and the support in the other place—indeed, the support of Kim Leadbeater—for several of these amendments as they were originally drafted mean we should be asking him to think again. We will get into some of the detail in the debates on future groups. I beg to move.

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[Baroness Merron (Lab)]

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

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

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

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

[Lord Falconer of Thoroton (Lab)]

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

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

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

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


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

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

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

[Baroness Berger (Lab)]

On this very point, and for the record, I think many noble Lords will want to hear specifically how my noble and learned friend’s Bill will ensure that, when it comes to the training, all elements of domestic abuse as set out will be covered in that training, particularly given the concerns raised both here and in the other place.

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[Lord Falconer of Thoroton (Lab)]

The reason it is covered already is that the Bill says that the training must cover domestic abuse. Domestic abuse is defined by reference to the Domestic Abuse Act 2021. Domestic abuse in the 2021 Act includes coercion, control and economic abuse. That is how there is a mandatory requirement in the Bill for all those things to be covered.

[Baroness O’Loan (CB)]

The definition of economic abuse in the Domestic Abuse Act is limited to actions that will prevent the person getting money or being able to spend money, if I remember correctly. There could well be financial abuse, depriving a person of very large sums of money, while they are still able to get money and spend money, so I think it needs further thought.

[Lord Falconer of Thoroton (Lab)]

I will certainly give it thought, but my reading of the definition of domestic abuse in the Domestic Abuse Act 2021 is that it is an effective means of covering the sort of economic abuse habitually seen between domestic partners. I think that covers it but, because of my respect for the noble Baroness, I will certainly look at whether it needs to be expanded. What the noble Baroness is referring to is a problem in the definition of domestic abuse generally in relation to economic abuse, which I do not think is there and was certainly not the intention of the 2021 Act.

I turn to the other issues. First, on “other than illness”, this is about when one or other of the two doctors withdraws from the process without giving a reason—simply withdrawing from the process. I completely understand what the noble Baroness, Lady Fox, is saying, which is that if someone is withdrawing because they think the person is being pressured, that must be recorded somewhere and any other doctors must be able to see it. What we are dealing with here is not that situation. We are simply dealing with a doctor who withdraws and gives no reason. Should the patient have to establish that there is a good reason for the withdrawal, or is it enough that the doctor has withdrawn and is no longer willing to participate? All the amendment does is to say, “If you can’t or won’t go on, you can get another doctor”, which is not a change in sense but makes clear what those provisions are. When I say “those provisions”, I am referring to those that allow for a replacement doctor when one of the other doctors—the originally appointed one—cannot go on.

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[Lord Falconer of Thoroton (Lab)]

First, on there being no need to question someone about why they are withdrawing, if there is material relevant to it, I need to check the Bill to see that it should be recorded. But the Bill contains regular provisions that state that everything must be recorded. If it is not adequately covered—if somebody says, “I’m withdrawing because I think you’re being coerced”, obviously that should be recorded—I will make sure that it is covered.

On Amendment 405—

[Lord Deben (Con)]

I genuinely want to understand this. The worry we had about this being a drafting difference is simply because when you could withdraw only on grounds of illness or death, the situation about why you withdrew did not arise. When you remove that, people can withdraw without giving notice of why. Therefore, there ought to be something—the noble and learned Lord has rightly said that he will look at it—to make sure that if somebody withdraws because there is some serious issue in connection with the decision, they have to say what it is. If we do not have that, this very much becomes a weakening point. I know that the noble and learned Lord does not want it to become that, but without something that insists on the information being given, it does become much weaker. This is not a drafting point until that is put right; when it is, it is a drafting point.

[Lord Falconer of Thoroton (Lab)]

I do not accept that it is not a drafting point, but that may be dancing on the head of a pin. The point that both the noble Baroness, Lady Fox, and the noble Lord, Lord Deben, are making concerns making sure that if you are leaving for a reason that will give rise to problems, it is properly recorded. I completely accept that and we will make sure that that is the position, because it is a valid point.

In relation to Amendment 405, the noble Lord, Lord Shinkwin, said that it is a watering down. It is not a watering down at all, with respect. The current draft says:

“When carrying out an assessment in accordance with subsection (2), the assessing doctor must first ensure the provision of adjustments for language and literacy barriers, including the use of interpreters”.


The new draft says that the relevant doctor must

“take all reasonable steps to ensure that there is effective communication between the assessing doctor and the person being assessed (including, where appropriate, using an interpreter)”.

The noble Lord, Lord Shinkwin, is shaking his head; I am more than happy to talk to him about how that could be a change, and if there is some change that he would like in relation to it, let us put it in. But it is, in legal terms, to my eye, wider. It covers a much wider ambit without providing any inadequate protection. Maybe the right course is for me and the noble Lord, Lord Shinkwin, to sit down and for him to identify the changes that he would like. At the moment, I cannot see them.

[Lord Shinkwin (Con)]

I thank the noble and learned Lord, and I will be very brief. Would he consider withdrawing his amendment? The change I would simply write, and I imagine the House would find acceptable, is what the sponsor of the Bill in the other place also found acceptable, which is to accept Mr Abbott’s amendments.

[Lord Falconer of Thoroton (Lab)]

I do not need to withdraw the amendment, because if the noble Lord objects to it, I will not press it in Committee. It depends on what we get to when we get to Report. What I am saying is that, at the moment, I cannot see the difference. I am more than happy to talk to him before Report. If there are valid points, let us put them in. However, at the moment, it looks to me to offer just as good, if not better, protection.

[Baroness Grey-Thompson (CB)]

I would not be able to accept the amendment as tabled because I have numerous other amendments on disability, language, BSL, different levels of interpretation and Makaton that are all important when having these conversations. Following the offer that the noble and learned Lord made to the noble Lord, Lord Shinkwin, I would be delighted to join the meeting as well, to see how the noble and learned Lord’s amendments can be improved to move further down the road. What we are trying to do is to make sure that people go into this decision-making process clearly understanding the decision they are taking.

[Baroness Hollins (CB)]

If such a meeting were to take place, I would be delighted to ask the noble and learned Lord to consider the alternative wording I proposed when I spoke to the amendment.

[Lord Falconer of Thoroton (Lab)]

First, both noble Baronesses would be very welcome to attend this meeting, which is expanding all the time. Secondly, the language the noble Baroness, Lady Hollins, proposed was “reasonable adjustments”, which is in the first draft but not the second. The reason we have not used the wording “reasonable adjustments” is that it comes from the disability Act. We want to do that and then go wider, and our amendment therefore gives greater width.

[Baroness Hollins (CB)]

It is the Equality Act, not the disability Act. I suggested that the definition of “disability” in the Equality Act, with respect to something like this, would in fact include someone with a long-term condition or mental illness, as well as any other disabling condition that the noble and learned Lord may be referring to.

[Lord Falconer of Thoroton (Lab)]

The noble Baroness is right that it is the Equality Act, not the disability Act; I apologise for that. If we were to restrict it to that, we would restrict it to a particular thing, and we think that it should be wider that. Again, we can talk about that at the ever-expanding meeting.

On Amendment 416, the noble Lord, Lord Ashcombe, was particularly exercised by the fact that the second doctor would not see the report of the first doctor; he would have some degree of problem with that. The noble Lord will know that, where a second doctor is brought in—where a referral is made to a new practitioner—the co-ordinating doctor must provide the new doctor with a copy of the previous report. If the new doctor is satisfied as to all the matters mentioned in Clause 11 on capacity et cetera, he or she then has to say why he or she disagrees with the previous doctor. The noble Lord’s legitimate sharpness in relation to that point was based, I think, on an improper understanding of Amendment 416, which will allow this to happen only once the new doctor sees the report of the previous doctor.

In the light of my exchange with the noble Lord, Lord Moylan, which was right for us to have, I will not move my amendment. Although the noble Baroness, Lady Coffey, was kind enough to indicate that she will withdraw her amendment to my amendment, because the noble Lord, Lord Moylan, thinks his drafting is better, we will have to wait and see what happens on Report. Do not hold it against me when I come back with the same amendment on Report.

[Baroness Coffey (Con)]

I thank the noble and learned Lord for his extensive responses. They reflect that “ensure” and “take reasonable steps” are actually different in law compared with what is expected. I am grateful to him for saying that he will not press his amendments in Committee and that he will allow us the opportunity to meet him and others to discuss some of these issues, where we think the provisions go beyond what might be considered legal drafting. I am slightly concerned that the Government did not reply to one particular aspect, but I will take that up separately with the Minister. But with that, I beg leave to withdraw—

[Lord Wolfson of Tredegar (Con)]

Before my noble friend sits down, I wonder whether the noble and learned Lord might take the opportunity to respond to the point I put to him on confirming the drafting of that amendment. He must have overlooked it.

[Lord Falconer of Thoroton (Lab)]

That is in the notes, but I will write to the noble Lord on that.

[Baroness Coffey (Con)]

With that, I beg leave to withdraw Amendment 7.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

We are discussing the wording of this Bill, with due respect. I raise this as a concern for clarification. It needs clarification because, if noble Lords are anticipating that this Bill and the legislation in the other jurisdictions will pass, we cannot leave a legal loophole or difficulty that might jeopardise the care of patients coming to England from the Crown dependencies. That is why I have raised it.

I turn to Amendment 11. Currently, the Bill speaks of the person being “ordinarily resident” in England and Wales, but there is a problem with “ordinarily”. In 1983, Lord Scarman stated in a House of Lords judgment that

“‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being”.

So far, so good. However, in the healthcare context, the 2012 Review of Overseas Visitors Charging Policy said:

“The vagueness of the definition means that OR”—


ordinary residence—

“is difficult to interpret and apply on an individual case basis”.

People fell through the gaps and the NHS was not recovering its costs. Then, during his time as Immigration Minister, the noble Lord, Lord Harper, pointed out that

“we need to do a better job of making sure that front-line professionals have a simpler system”.—[Official Report, Commons, Immigration Bill Committee, 7/11/13; col. 290.]

The problem with the definition in the Bill is that it could cover someone who is now living in another country but has an address of convenience in England and Wales for whatever reason. We know that there are thousands of empty properties owned by people who are not living permanently in this country. Apart from the more than 187,000 homes that are owned by people living permanently abroad, there are 5.5 million people who are British passport holders or have residency visas to live in the UK but are living abroad permanently. What will be the position of these people if they wish to access an assisted death here? Currently, they would not be eligible for NHS treatment if it were to be funded by the NHS. If they came to live in the UK for a year, they would then become eligible for the NHS, but, with the prognosis of six months or less, they would be expected to be dead within that time. Of course, this assumes that there is any accuracy in prognostication, which there is not.

Let me put to your Lordships a scenario that is, sadly, not infrequent. A person working for the Foreign and Commonwealth Office in an embassy abroad becomes seriously and terminally ill and is repatriated to the UK. Their house is rented out and they have to give notice, so they go to live in a different area—one, they hope, with good specialist palliative care services that can provide them with support. However, not being able to be in their own home and surrounded by their own things, and without contact with people who would otherwise have a role in their lives, they easily become very depressed.

Let us look at that scenario under this Bill. Suppose they decide that they want an assisted death. They will not have been resident for 12 months prior to making a first declaration to request an assisted death. Will that person, who may have worked all their life in service of this country, now be ineligible? I see that the noble and learned Lord, Lord Falconer, is nodding that they would. I believe that, under the wording of the Bill—

[Lord Falconer of Thoroton (Lab)]

Hold on—my nods must not be misinterpreted. I understand the question. If, for example, you live in Britain and you go and become the First Secretary in the US, you do not cease to be ordinarily resident in the UK. If you are a soldier and serve for nine months abroad, you do not cease to be ordinarily resident. I was nodding only to say that I have got the question, but I would not necessarily agree with the solution that the noble Baroness proposes.

[Baroness Finlay of Llandaff (CB)]

I am grateful for that clarification and we will come back to the noble and learned Lord’s comments on these issues afterwards.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

I am very willing to address these border issues, which are incredibly important. The noble Baroness, Lady Finlay, specifically raised them in the context of the Isle of Man patient who comes to, say, Liverpool for treatment. What will happen when Scotland and the Isle of Man have different laws on assisted dying? If, as this draft says, you have to be ordinarily resident in England and Wales to get the benefit of the exception to the Suicide Act, those who offer to help someone get back to the Isle of Man for an assisted death there would be committing a criminal offence because the person would not be ordinarily resident in England and Wales.

The British Medical Association has a proposal that we amend the Bill to say that if you help somebody to go to another part of the country to have an assisted death in accordance with the laws there, that would not be a crime. To answer the point by the noble Baroness, Lady Finlay, I have been in discussion with the BMA as to how one might introduce an amendment to that effect. We need to discuss that, and these cross-border issues definitely need to be discussed. I would very much welcome such a discussion taking place with interested parties.

[Lord Beith (LD)]

What I am talking about is a group of people who live in England, are ordinarily resident in England, but who happen to be registered with a general practice in Scotland. That has no impact on what the Scottish situation would be in other respects—that is a matter for the Scottish Parliament—but it does affect the scope of the Bill.

[Lord Falconer of Thoroton (Lab)]

I was addressing the wider issue, the one that the noble Baroness, Lady Finlay, was talking about. But it goes to those ordinarily resident in Scotland, who come to England for their medical advice—and if the medical advice says, “Go back to Scotland if you want an assisted death”, would that be a crime? But I also wish to deal with the GP point. If you live in England but have a GP in Scotland, does it debar you from getting it here? I am more than happy to include that in the discussion.

[Lord Moylan (Con)]

My Amendment 14 in this group seeks to expand eligibility for those of pensionable age who have retired from the UK and gone to live abroad. It is a probing amendment, of course; it is not my intention particularly to expand eligibility under the Bill. I am trying to raise a question of equity and fairness but also legal defensibility. I want to approach the issue from a slightly different angle. I endorse everything said by my noble friend Lord Lansley, the noble Baroness, Lady Finlay, and the noble Lord, Lord Beith, in raising practical issues, but I want to approach it on a slightly different basis.

The intention of the sponsor, I think it is fair to say, is that in creating this Act we do not turn England and Wales into a sort of international capital for quick assisted death. That would be an appalling thing to happen. So we try to put some borders and parameters around it and say that this service is here for the use domestically of people who are established here. One way of looking at that is to put the criteria in about having been here for 12 months and so forth, and being ordinarily resident, and all of that. As I say, I agree that those things raise very serious practical issues, but it seems to me—here I tread very carefully, because I am not lawyer—that they raise legal issues as well. Are we to some extent fooling ourselves into thinking that we, although we are the legislature, can create these boundaries and that they will remain firm?

I am thinking about what the Minister said in her reply to the debate on the first group today, in which she was very careful to draw noble Lords’ attention to the fact that certain amendments in that group might be challenged under human rights law or on the grounds of the Equality Act. She said that she could not give assurances that they would not be challenged; that was her being cautious and proper in expressing the Government’s view while being neutral about the Bill. But that raises a flag. How many of the limits that we are discussing now would actually withstand legal challenge? I chose my own example on precisely those grounds.

What if you have lived all your life in this country and paid all your taxes in this country and reached your pensionable age and decided to retire to Spain, say? Unfortunate developments lead you to want to come back and you qualify under the Act for an assisted death; you have a terminal illness and six-month prognosis, and you want to come back to the UK to take advantage of that, maybe because it is not available in Spain or because you want to be with other members of your family—who knows, but you want to come back to do that.

Under the Bill, as I understand it, you would be excluded from doing that. But would a court agree that that was a firm parameter; in other words, would a court agree that the criteria we have established are sufficiently rational that they have a sufficient basis in other legislation, in their understanding of human rights or in practical considerations? There might be all sorts of reasons why courts might say, “Yes, these are rational limitations”. But it could equally be the case that the court would say, “No, that is an injustice. This person has paid their taxes all their life. They’ve only been gone from this country for a few months. Of course, they should be allowed to come back and take advantage of it; it is irrational to exclude them”. That is the point I want to raise.

The noble and learned Lord the sponsor of the Bill has to put in place criteria which not only sufficiently exclude the possibility that we are going to become an international shop for assisted death—which we would all agree with him is something that we do not want to see happen—but are sufficiently rooted that they will be defensible and durable in a judicial context. That is the matter that most concerns me, apart from the practical considerations, about this whole eligibility debate.

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[Baroness Merron (Lab)]

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

[Lord Falconer of Thoroton (Lab)]

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

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

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

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

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

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

--- Later in debate ---

[Lord Lansley (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Can I just finish this sentence?

On the tourism point, it invites the possibility that you can come and genuinely live here until you die in order to get an assisted death, and we do not want that.

[Lord Lansley (Con)]

I think the noble and learned Lord knows that the definition of “ordinarily resident” that is used in the National Health Service is defined in common law. It is about living here as part of your normal pattern of life for a settled and continuing purpose. It is not “at a moment in time”. That is why the 12 months is particularly inappropriate, because it is a matter of judgment at the point at which a test of ordinary residence happens, and one has to demonstrate that one is here for a settled purpose.

[Lord Falconer of Thoroton (Lab)]

I accept that completely. The reason the 12 months is here is to give some degree of assurance that the reason you are living here is not because of an assisted death but because it is your genuine home.

I come to the proposal from the noble Lord, Lord Frost. The way it is drafted, although I cannot believe he meant this in the way that he put it, you have to be ordinarily resident in England or Wales, you have to be a British citizen and you need indefinite leave to remain. I was surprised he was saying it would be an easier test to apply. It would not be an easier test to apply, because you would have to apply both ordinary residence and whether you are a citizen or have indefinite leave to remain. Even assuming the proposal is the more limited one, namely, that you only have to be a British citizen or have indefinite leave to remain and you do not have to be ordinarily resident here, that would not be appropriate, for two reasons.

First, the policy choice that the sponsors of the Bill, myself and Kim Leadbeater, have made is that, if you live here—if you are ordinarily resident here—whatever your citizenship or status, you should be entitled to it. Secondly, and separately, I do not think it is appropriate to make it available for people who, for example, have not lived in this country for 50 or 60 years and have no intention of returning. That would invite death tourism, to use the phrase.

The noble Lord, Lord Harper, said that doctors should not be required to make the assessment. If the position is that there has to be some residence requirement, it is perfectly okay for the two doctors who are concerned with this to make inquiries about where someone lives and how long they have lived here. That is not difficult, and in 99.99% of cases it will not give rise to any problems. Let us assume that most people are honest, and say to the doctor, “I actually live in France but I’m coming here because I want this”. The doctor will say that it is not available. I hear what the noble Lord says, but I do not think it gives rise to particular problems. If there are particular problematic cases, these can ultimately be resolved by the panel.

[Lord Harper (Con)]

I do not think that is the experience of the National Health Service. There is a whole cadre of staff—the overseas visitors managers—who deal with people who are trying to access a service. I do not think it is the case that this is straightforward and that in the vast majority of cases there will not be an issue. That is not the NHS’s experience and I do not think it will be the experience of this service either.

[Lord Falconer of Thoroton (Lab)]

I am surprised to hear that. I will make inquiries, but I am almost sure that that will not be the case with this.

The noble Lord, Lord Mackinlay, gave us an interesting tour d’horizon of the law and said how “ordinarily resident” applies in various areas. “Ordinarily resident” means the same thing in all those areas. For the reasons I have already given, I do not think it will prove a difficult thing to apply in practice. I am grateful to the noble Lord, Lord Meston, for his endorsement of the approach to “ordinarily resident”.

The noble Lord, Lord Wolfson, asked me a number of questions, such as about the citizen who was ordinarily resident here and then went to live abroad—I think that was the case raised by the noble Lord, Lord Moylan. If a person decided that they were going to move to Spain and live the rest of their days there, then when they become ill they wanted to come back and have an assisted death, under the terms of this Bill they would not be eligible because they would not have been ordinarily resident in this country for 12 months—this country being England and Wales.

The noble Lord’s second question was about somebody from Northern Ireland who comes here and asks for an assisted death. Again, they would not be eligible because the assumption under his question was that that person’s ordinary residence was in Northern Ireland. His third question was about why opinion is not satisfied. It seemed to us that opinion is enough in relation to this because it would be done basically by asking a number of questions and you would assume that the answers that you had would be honest.

[Baroness Coffey (Con)]

I notice that the noble and learned Lord has taken interventions. I do not believe that he has addressed my issue about the risk of tourism. He has used interchangeably during his explanations “permanently” and “ordinarily resident”. No distinguished lawyer here has countered the view that you can be ordinarily resident in more than one country at the same time. We have the broader issue that case law and NHS guidance can change this. It really needs revisiting. Will he try to address my issues about tourism and this Bill?

[Lord Falconer of Thoroton (Lab)]

My Lords, I honestly think that is a smokescreen. The Bill says, in a way that the law has recognised time and again—because this Parliament has to make choices from time to time about who gets benefits—that the benefits of the Bill should be given only to those who ordinarily live in this country. That phrase has not given rise to problems. The courts understand it, doctors understand it and the panels will understand it. If we in this Parliament cannot say that we will give rights only to those who are ordinarily resident, which is a phrase that means something, we will never be able to determine who is entitled to our rights. I say, with the greatest respect to the noble Baroness, Lady Coffey, that what we are trying to do in the Bill is clear. I invite the noble Baroness, Lady Finlay, to withdraw her amendment.

[Baroness Finlay of Llandaff (CB)]

My Lords, I will now sum up at the end of this very interesting debate. I am relieved to hear that people do not want doctors to be immigration officers. I am a little disappointed that the noble and learned Lord, Lord Falconer, has not accepted the amendment from the noble Earl, Lord Howe, because it is so straightforward. If, as the noble and learned Lord says, it would not be a problem for over 99% of patients, it would not be a problem to be satisfied. It would add a degree of security for doctors who are being asked to provide these assessments of eligibility.

I was also glad to hear from the noble Lord, Lord Harper, that those working for the Foreign, Commonwealth and Development Office, in embassies or wherever, are covered, and that that is not a problem. The noble Lord, Lord Carlile, raised the issue of those working as volunteers abroad for a very long time. I hope that the ability that applies to Foreign, Commonwealth and Development Office workers also applies to those working for charities, such as some of the major charities, who may be abroad for a very long time but view their permanent home as the UK.

I remain concerned about Jersey and the Isle of Man. What conversations has the noble and learned Lord had with the Public Bill Office about how to get this in scope? My attempts have failed, and I understood that here in the House of Lords we are not able to widen the scope of the Bill. I worry that without widening the scope of the Bill, we will not address it, and those doctors treating patients with all kinds of really serious illnesses, particularly in Liverpool, as referred to by the Front Bench, and in Southampton, could inadvertently find themselves in a very difficult position, which would be an unintended consequence of this legislation.

[Lord Falconer of Thoroton (Lab)]

I do not know whether the noble Baroness has discussed with the Public Bill Office the BMA’s proposal in relation to this, which is that it is not a crime under the Suicide Act if the assistance you give is not unlawful in the Isle of Man or Jersey. The idea that that is out of scope seems obviously wrong, because the Bill is crafting an exception to the Suicide Act. If the noble Baroness and I go to see the Public Bill Office and explain that, I would have thought that there would be no difficulty about the scope.

[Baroness Finlay of Llandaff (CB)]

I would be delighted to go with the noble and learned Lord, because he may have a little more success. The Public Bill Office has been unfailingly helpful. This is no criticism whatever of it; it has worked incredibly hard. With that and the promise of going to see it with a matter of urgency, I beg leave to withdraw the amendment.

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 21st November 2025 Lords Chamber

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

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

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

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

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

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

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

[Lord Falconer of Thoroton (Lab)]

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

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Baroness Berridge (Con)]

My Lords, my name is on the amendment that the noble and learned Lord has just mentioned. This was also from Second Reading. There are loads of people signing forms saying that coercion or pressure has not happened. What is the situation with the internet? What is the situation for young people? We are failing young people if we do not make clear how that practitioner is going to know. Young people are pressured through non-human means nowadays.

[Lord Falconer of Thoroton (Lab)]

The Bill makes it absolutely clear that it must be your own decision. Let us suppose that your views of the world are affected by the internet and that you are ill and an organisation is urging you to commit suicide, that organisation should be liable if that happens.

In Amendment 49, the noble Baroness, Lady Coffey, wants “person” to include a body corporate or an organisation in relation to pressure. If an organisation or a body corporate is putting pressure on a group of people or on individuals and that makes them do it—this is putting it crudely, but if an organisation says, “Do have an assisted death; it is the right thing for everybody or for you”—that should be covered by the Bill. The noble Baroness adverted to how “person” can generally include both corporate person and human person, but I can talk to her separately about that to make sure that it is covered.

[Baroness Fox of Buckley (Non-Afl)]

Some clarification is needed in relation to a number of points that you have made. How does anybody know, how does the doctor know, whether any of these scenarios have happened? Is there anything in the Bill that makes the doctor ask and explore? The word I proposed was “encouragement”—that you would ask not just “Were you coerced or pressurised?” but “Were you encouraged?”—because it would develop a richer conversation. Is there anywhere in the Bill where all the things that you have just said—apologies; I should not have said “you” but “the noble and learned Lord”—can be fleshed out, discussed and teased out?

Maybe I have got this wrong, but at the moment as I understand it, you fill your form in, somebody might even ask “Were you coerced?” and you say no, and that is that, out the window and then, Bob’s your uncle, you are eligible and off you go. It does not matter how often that process happens. The noble and learned Lord spoke about “first doctor, second doctor”, but if they do not all explore it, how will we know whether it was anything other than a yes/no? The noble and learned Lord has given a very rich explanation of what could have happened, but the Bill does not allow us to find out whether any of that will have occurred before the assisted death is enacted.

[Lord Falconer of Thoroton (Lab)]

I do not feel insulted by being called “you”, but I do not think that the noble Baroness, Lady Fox, properly understands how the Bill operates. The two doctors and the panel have to be satisfied that the person is reaching a voluntary decision of their own, uncoerced and unpressured. Codes of practice will determine how that is done and, what is more, the panel with the three experts on it also has to be satisfied. The noble Baroness, Lady Fox, is saying that that is a tick-box exercise. With respect, no: this is obviously a very serious matter. I expect the doctors and the panel doing it to take it seriously.

[Lord Mawson (CB)]

My Lords, as the noble and learned Lord knows, I have spent a lot of my life working with people in housing estates in the East End of London. Research we did some years ago discovered that virtually every nation on earth is represented in the housing estates where I worked. I have spent a lot of my time, nearly 40 years, working with Bengali families. We know each other quite well, but do I really know what is going on in the minds of that community or with that single mother, trapped in a house, who does not speak English after all these years? The truth is that I do not. It is really difficult to know. In the same way, I find it difficult, as a Yorkshireman, to help southerners understand what is really going on in Yorkshire. Even though I have tried it many times, the quality of their fish and chips really does not cut it.

One of my problems with this overcertainty is that it feels like a very white, English conversation, when actually this country is a global community, with people from many different cultures, all over the world. What concerns me is the practicality of much of the discussion that I have listened to today, and I have no idea how you actually understand coercion or encouragement—I think that is a really important word—in practice. Having spent many years of my life with these people, I would not pretend to know what I was really hearing, at such a point, and what it meant for their life in practice.

[Lord Falconer of Thoroton (Lab)]

I completely agree that the noble Lord and I might well not understand what people from different cultures would say, but the two doctors and a panel would have to understand that sufficiently to reach a conclusion. If they do not, they cannot provide the satisfaction that is required by the Bill. The idea that the people who will make the Bill work are all from a particular class, demography and education is, with respect, wrong.

[Lord Mawson (CB)]

Will we have enough people from these different cultures with the skills and knowledge to enter into that kind of understanding, whether they are doctors or on the panels? It is really difficult to understand how that practical proposition will work in the real world—in the East End of London.

[Lord Falconer of Thoroton (Lab)]

That will very much depend upon the number of people who apply from particular groups, and I think one can be pretty sure, on the basis of the impact assessment, that there will be sufficient numbers.

[Lord Harper (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

I think it would probably be sensible, unless the noble Lord has something to raise that we have not already dealt with, for me to make a bit of progress.

[Lord Harper (Con)]

It is directly relevant to the amendment that we are discussing, if the noble and learned Lord will forgive me. I am coming back to what the noble Lord, Lord Carlile, said about the point of the debate. I absolutely get that the noble and learned Lord is very certain about the quality of the Bill. He has set that out in his usual eloquent way. However, if he followed my injunction from the words of the right reverend Prelate the Bishop of Chester yesterday and if he has listened to this debate, he must recognise that that certainty is not shared by many Members of this Committee.

I hope the noble and learned Lord will forgive me if he was coming to this on later amendments, but he has in effect said that he is not persuaded by most of the amendments. If he does not accept that many noble Lords have concerns about the Bill and thinks it is basically fine as it is, I fear that—picking up the point made by the noble Baroness, Lady Hayter—many noble Lords who might have been persuaded to support it had it been improved will not now be persuaded. Is he prepared to listen and amend the Bill in any way at all?

[Lord Falconer of Thoroton (Lab)]

My Lords, first, I am sure that I will not be able to reach the high standard of the right reverend Prelate the Bishop of Chester, but I will try.

Secondly, I do not think I am rejecting the principle of many of the amendments. I am saying that—for example, in relation to an independent decision and to encouragement—the protection is there in practice. I also say to the noble Baroness, Lady Coffey, that her reference to organisations is something we could discuss. I think it may already be covered but let us discuss it.

The noble Lord, Lord Harper, is right: I am saying no to quite a lot of the amendments because, in my opinion, I do not think they are necessary and there is adequate protection. It does not mean I am not listening; but painful as it is, because I respect so many people who disagree with me, I do disagree with some people.

I am very conscious as well of what the Chief Medical Officer, Sir Chris Whitty, said, which is not to over-engineer this and make it a thicket people cannot get through. If you are serious about assisted dying, make sure it is genuinely accessible to people. I am trying to strike that balance.

[Baroness Scotland of Asthal (Lab)]

My Lords, I wonder if I might help my noble and learned friend on the concerns that clearly have been expressed. A number of noble Lords have been talking about what evidence there is. The concern was expressed in the last debate last Friday that if you are not going to have someone who has been intimately involved with the family or the person who is making the request, that becomes more difficult.

A number of suggestions have been made. For example, would it be possible to have a multidisciplinary assessment of need and coercion early, so that you could have the information? My noble and learned friend will know that when we make these multidisciplinary assessments, usually you hear from everyone—the social worker, the housing officer—just as we do for the multiagency risk assessment for domestic violence; and those domestic violence cases are really important. Will my noble and learned friend look again at how the Bill could make sure that the evidence upon which these decisions are going to be made is there?

Secondly, I will deal with the amendment from the noble Baroness, Lady Fox, on encouragement. My noble and learned friend will know—I disclosed this to the House, because, of course, I was the Attorney-General when the DPP’s guidelines were put out— that the whole purpose of looking at and assessing encouragement was to make sure that no one else had applied pressure. The word “encouragement” very much comes from the DPP’s guidelines, which has meant that since they came in, only four prosecutions have been made. They were made in relation to people who were identified as having participated in something which might have been homicide or manslaughter, and others were not prosecuted. I know that my noble and learned friend would think that entirely proper.

Will my noble and learned friend think again about looking at those issues to make sure, perhaps through regulations, that we can have that clarity, which might give reassurance to those who are desperately concerned about these issues?

[Lord Falconer of Thoroton (Lab)]

In relation to the multidisciplinary team, Amendment 222 from the noble Baroness, Lady Hollins, is a bit close to that but not quite there. On the question of encouragement, of course, the reason why the DPP’s guidelines refer to encouragement is that the criminal offence at the moment is encouraging suicide, and that deals with a completely different concept.

May I go on into Amendment 50—

[Lord Ashcombe (Con)]

I would like to go back to our noble colleague from Yorkshire—I am afraid I do not know the noble Lord’s name and I apologise. He talked about working in the communities in the East End. We are short of GPs as it is, and most of our GPs come from an Anglo-Saxon background still. The noble Lord referred to the fact that, having worked with this community for a very long time, he still could not necessarily read the situation. I wonder how we deal with that, because the GPs in that community may not have had the length of time that he had to assess these situations.

[Lord Falconer of Thoroton (Lab)]

I think I answered that; the noble Lord may not have been satisfied with my answer, but I did answer it by saying that people have to be satisfied that the decision is voluntary and without coercion. If they do not know, because they cannot read adequately the community, they could not be satisfied.

[Baroness Coffey (Con)]

The noble and learned Lord has just made a point about the risk of coercion and referred to a psychiatrist. It would be very helpful to understand what clause in the Bill he is referring to, because Clause 12(6)(b) is only about the capacity of the person; it is not talking about coercion. I am also conscious that capacity is on the balance of probabilities anyway. It would be useful to understand which clause he believes referral would be in, on the grounds of coercion.

[Lord Falconer of Thoroton (Lab)]

I will come to that in a moment, because I have to get through the amendments—we have to make progress a bit. However, I completely understand the question.

Amendment 50 is from the noble Lord, Lord Evans. He basically said that when anybody tries to behave badly, trying to coerce or pressure somebody into making the decision to have an assisted death, that should be sufficient to bar it for ever, even if it had no impact whatever in relation to it. I see the force of that; I think it would be a wrong amendment, for the following reasons. Somebody—a doctor—might go over the line, but it is absolutely clear that the person definitely wants an assisted death. I do not think they should be barred from doing that because they are concerned about what might happen to the doctor or to the person they love if it is absolutely clear that they have not been coerced or pressured into it.

On Amendment 52 from the noble Baroness, Lady Grey-Thompson, she is saying that somebody should not be subject to or at risk of coercive control. Everybody agrees that the person who is adopting the assisted death should not be subject to coercive control. If they are at risk, I would expect the two doctors and the panel to investigate that fully and, if they are not satisfied that the person is reaching a decision of their own, plainly an assisted death cannot go ahead. But I think we are all on the same page in that the risk has to be properly investigated and a conclusion reached.

Amendment 57A in the name of the noble Baroness, Lady Lawlor, says you should not be allowed to have an assisted death if someone has been

“prompted to consider ending their own life”—

presumably in the context of assisted death—by any professional person. Clause 5 leaves it to the judgment of the doctor as to whether they raise the question with the patient. If they raise it, they have to raise it under Clause 5 in the context of the treatment available to the patient and all other options available, including palliative care. I do not think that if a doctor, or indeed any other professional person, makes a judgment that it would be sensible to raise it, that should thereby debar the person from having an assisted death. The noble Baroness wants to intervene. By all means let us prolong the debate if it is a new point.

[Baroness Lawlor (Con)]

It is about the level of authority which the professional person, who is in a way a public servant, and the trust which one endows in one’s GP or family doctor. As we have heard today from other people who are medically qualified, that has great weight with the patient—I speak as someone who comes from a medical family. They constantly agonise about their prescriptions for patients and their emotional condition, and all that. But if one raises assisted dying with somebody who is terminally ill, the professional—the doctor, say—is planting the idea.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

I completely appreciate what the noble Baroness is saying. She is, in effect, repeating what she said with such force and articulateness before. My answer to that is that there will be some professional people, and Clause 5 recognises this, who think the person is saying, “I just can’t bear this, I want this to end”. Would it be inappropriate in those circumstances for a professional person, in the context of all the other options, to raise it? In my view, it would not be, and in my view, it would be completely wrong to say that if you did raise it in those circumstances, that person, the patient, would be barred from ever having an assisted death.

On Amendment 58, the lead amender—not every other amender—said that coercion or pressure should include

“intentional or indirect structural disadvantage including poverty or lack of care”.

We are all agreed that coercion and pressure on an individual by another individual is not to be allowed. Where the reason that you want an assisted death is because in your mind you are influenced by your circumstances—for example, because you are poor—should you be barred from having an assisted death because of your poverty? In my view, you should not be. What the two doctors on the panel have to be satisfied about is that it is your own decision.

[Baroness Grey-Thompson (CB)]

This partly follows on from the comments of the noble Baroness, Lady Fox. The noble and learned Lord mentioned in his previous answer to one of my amendments that the doctors would be able to investigate. I think many of us still do not understand how that investigation would take place. In terms of understanding the standard of proof, Minister Sarah Sackman in another place said it would be on a civil standard. So, in terms of balance of probability, is the noble and learned Lord saying that the doctor has to be only 51% certain that there is no coercion for the panel to carry on and for an assisted death to be granted?

[Lord Falconer of Thoroton (Lab)]

They have to be satisfied that the person is not being coerced. That means that they have to do the appropriate inquiries. If, for example, as the noble Lord was saying, they do not understand the community, then they cannot be satisfied. If, for example, they do not know enough about it, they cannot be satisfied. Every case will depend upon its individual circumstances. They will have to do what is required in relation to it.

Amendment 118, in the name of the noble Lord, Lord Hunt, proposes that if you have a close relative who has been convicted of fraud or you are living with somebody who has been convicted of fraud, there has to be an independent financial assessment. That means that if your child, grown up by this time, has committed a fraud, there has to be an independent financial assessment of your circumstances before you can have an assisted death. I am strongly against the idea that if a relative of yours committed such an offence, that would mean there would have to be a yet further layer that you have to go through. There are still all those protections.

[Lord Hunt of Kings Heath (Lab)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

This is a new practice that every answer one gives, the person then responds by repeating their speech. So, if it is new, yes—

[Lord Hunt of Kings Heath (Lab)]

The Companion states that in Committee we are entitled to speak more than once, and I think it is more helpful to do it this way. I am the 11th amendment in this group that the noble and learned Lord has so eloquently dismissed so far, but I think he has about another 10 to go.

I want to make two points. First, does the noble and learned Lord not reflect, on all the concerns that have been expressed, that the Bill might have had a smoother passage if he had shown any disposition whatever to take any of these issues away and reflect on them before coming back on Report? Secondly, I mentioned the Human Tissue Authority legislation that provides some protection and investigation to make sure that a donor is not getting a financial reward. Will he at least look at that to see whether there is any way in which we could reflect that in this legislation?

[Lord Falconer of Thoroton (Lab)]

On my noble friend’s first question, I have not dismissed all the amendments; I have accepted that we should look at some of them, and very many of the ones I am not accepting are because they are already covered in the Bill. I am rejecting some of them on the basis that I do not think they are practical. When my noble friend talked about the donor, I think he was talking about, for example, somebody who may benefit from the will of the patient. Indeed, that was a point raised by the noble Lord, Lord Farmer. Very often, the person who most supports you in relation to this is the person you love most and who is going to benefit under your will. So, very frequently the person who has taken a loved one to Switzerland is the person who is then going to inherit under their will. That does not make them bad, and I would most certainly not exclude people who benefit from the will of the person who dies because they have helped them in this respect. It seems to me to not properly recognise the importance of human relations in relation to this.

I have dealt with the point of the noble Lord, Lord Farmer, about the will. His second point was that, if you had a friend who was convicted of a criminal offence involving financial fraud of some sort, you should not be able to have an assisted death unless there is an investigation of your financial position. Well, if I reject the point from my noble friend Lord Hunt in relation to a close relative or the person you speak with, then I think, for the reasons I have given, it also does not apply in relation to a friend.

In Amendment 181, the noble Baroness, Lady Grey-Thompson, proposes that the doctor must ask why and seek specific confirmation that a decision is not coerced. There is no specific requirement for that in the Bill: it is for the two doctors to determine what they think the right course is. If they felt that they could not reach a decision without asking why, or without asking, “Are you being coerced?”, they would have to ask that. But there is no prohibition. It is, as the noble Lord, Lord Pannick, said, a decision for the two doctors and the panel to decide, in each case, what is the best way to reach a conclusion as to whether this person is being coerced. That is the question that all these things are addressing.

[Baroness Grey-Thompson (CB)]

So, the two doctors could ask an entirely different set of questions to each person who is requesting to end their life?

[Lord Falconer of Thoroton (Lab)]

It will depend on the circumstances. If, for example, the doctor had a very severe doubt about whether somebody was being coerced, I would expect them to ask very many questions about their domestic circumstances. Suppose, however, it was somebody who was clearly not, on the face of it, at the slightest risk of coercion—a person of 60 in the full flush of his or her pomp, as it were—and who had said, right from the outset, “I can’t bear the thought of this illness”, and the idea that this person has been coerced is not really plausible, then I would expect the doctor to be asking different questions from the sorts of questions that they would be asking if the circumstances of somebody’s home life were completely different. It would obviously depend on what you knew as the doctor, or had found out as the panel, about the circumstances of the individual.

[Baroness Royall of Blaisdon (Lab)]

I apologise for interrupting my noble and learned friend, but I just point out that the BMA itself is very clear that the doctors should be able to make their own judgment in all these cases.

[Lord Falconer of Thoroton (Lab)]

As I understand it, Amendment 222, in the name of the noble Baroness, Lady Hollins, would establish a specialist service to provide psychological assessment and support and then bereavement support for those seeking an assisted death. My noble friend Lady Merron has indicated the difficulties in relation to that. On the question of a psychological assessment, the position is that some work has been done abroad in relation to this. California introduced, in addition to what was required by the law in a particular part of California, a psychiatric assessment for everyone who wanted an assisted death but concluded that that was not necessary because the numbers of psychiatric assessments were producing nothing. It was only where special requirements were required that suggested it was a good thing. So I respect the suggestion but I do not think it is necessary.

--- Later in debate ---

[Baroness O’Loan (CB)]

I have a very quick question. I cannot find in the Bill the powers that would allow the doctors to carry out the investigation to which the noble and learned Lord has repeatedly referred. If people do not co-operate, that is it.

[Lord Falconer of Thoroton (Lab)]

With the greatest respect, the noble Baroness has missed the point. If, for example, a person says to the doctor, “I’m not telling you things”, the doctor can never be satisfied. That is the protection.

[Baroness Coffey (Con)]

Would the noble and learned Lord write to me with the answer to the question I asked earlier?

[Lord Falconer of Thoroton (Lab)]

Of course, and I apologise for not answering it.

[Lord Watts (Lab)]

Can we perhaps shoot just one fox? There was a suggestion that there are not enough non-Anglo-Saxon GPs available to do this. I have just looked at the facts: 46% of GPs were born outside the UK and 25% of them are from Asia.

[Lord Falconer of Thoroton (Lab)]

I am very grateful to my noble friend for mentioning that, because that is what was being whispered to me but I did not have the statistics. I am very grateful to him for providing them.

[Baroness Finlay of Llandaff (CB)]

My Lords, this has clearly been a long debate, and I think for good reason. As one noble Lord said, coercion and pressure are a major concern for many people about the way the Bill is written. I will very briefly respond. I am well aware of the time, but a lot of points have been made. Noble Lords will all be relieved to know that I am not going to go through them all.

First, the word “encouragement” is taken from the Director of Public Prosecutions guidelines, and for good reason, because the Director of Public Prosecutions recognised the power of a person in authority over a person who is vulnerable. That is why it tends towards the prosecution of assistance coming from a person in authority. I would include doctors in that, but it was also thought to include prison staff, nurses and others employed in that role.

Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Friday 14th November 2025 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

That the House do now resolve itself into Committee.

[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.

--- Later in debate ---

[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 Harper (Con)]

My Lords—

[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 Harper (Con)]

I am very grateful—

[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)]

Let me ask him the question.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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 Excerpts

2nd reading
Friday 19th September 2025 Lords Chamber

Moved on Friday 12 September by

[Lord Falconer of Thoroton]

That the Bill be now read a second time.

Debate on the amendment to the amendment to the Motion resumed.

--- Later in debate ---

[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.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

That the bill be committed to a Committee of the Whole House.

[Lord Falconer of Thoroton (Lab)]

I beg to move.

Amendment to the Motion

Moved by

Coronavirus Bill

Lord Falconer of Thoroton Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 24th March 2020 Lords Chamber

[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

Thursday 25th January 2018 Lords Chamber

[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

Tuesday 12th December 2017 Lords Chamber

[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

Thursday 10th May 2012 Lords Chamber

[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

Monday 19th March 2012 Lords Chamber

[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

Monday 12th March 2012 Lords Chamber

[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.