Terminally Ill Adults (End of Life) Bill

Debate between Lord Falconer of Thoroton and Baroness Berridge

Friday 27th March 2026 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I think we know the differences between us. I have set out what my position is. I am grateful to the noble Baroness for setting out hers again.

[Baroness Berridge (Con)]

In relation to what the noble and learned Lord said in response to the noble Baroness, Lady Finlay, about not being rostered being a sensible solution, that is a different language from having a legally enforceable right to say to your employer, “I do not want to be rostered on that day”. Is that the correct position, as I understand it? Will the noble and learned Lord concede that these problems arise from the fundamental pillar of the Bill, which is that you can base this on the notion of autonomy, which is based on choice, but conscience is a different concept from that, and that is why we are in these difficulties?

[Lord Falconer of Thoroton (Lab)]

I honestly do not think that these are difficulties. There is absolute clarity in the Bill as to what the legal position is, and it is a very wide exception. It is more than sufficient to give protection to people who do not want to participate in the provision of assistance under the Bill. Pushing it wider and wider simply gives rise to uncertainty. The key thing is that there should be certainty and sufficient width, and I believe that is what Clause 31 has done.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Falconer of Thoroton and Baroness Berridge

Committee stage
Friday 20th March 2026 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I am very grateful to the noble Baronesses, Lady Hollins and Lady Nicholson of Winterbourne, for sharing their experiences with us—in the case of the noble Baroness, Lady Nicholson of Winterbourne, the death of her mother and the circumstances of her mother’s life; and in their case of the noble Baroness, Lady Hollins, the circumstances of her husband’s later illness.

These amendments concern ensuring that people with communication difficulties, hearing difficulties or particular cultural pressures are properly able to access assisted death, but also, very much picking up the words of the noble Earl, Lord Effingham, that they should have an assisted death only if it is crystal clear they have understood everything and it is informed consent. I pay tribute to the noble Baroness, Lady Fraser of Craigmaddie, for the intelligent and sensible way she introduced the amendments. I underline that I think everybody in the Committee would be of the view that the two aims are no discrimination and absolute clarity that somebody has agreed. That is the basis upon which I, as a sponsor of the Bill, approach this matter.

I shall deal first with what the current Bill and my amendments make provision for. Clause 5 states:

“If a registered medical practitioner conducts such a preliminary discussion with a person, the practitioner must first ensure the provision of adjustments for language and literacy barriers, including the use of interpreters”.


We take the view that that clause is inadequate because the assurance is not in the communication—by which I mean that you have to ensure there is effective communication, not that you have to ensure there are reasonable adjustments, because who knows whether the reasonable adjustments would work. For that reason, we have tabled Amendment 170 to change the wording in that clause and the parallel clause, Clause 10, to

“take all reasonable steps to ensure that there is effective communication”.

I am sure that is the right way to do it. The focus should be not on ensuring they have to take the steps but on effective communication. I emphasise that because the noble Baroness, Lady Fraser, said those amendments would make it less safe. They would not: they would make it safer. I hope that, having heard what I have to say, the noble Baroness will see that I am trying to achieve what she, quite rightly, is trying to achieve.

The second method by which the noble Baroness rightly seeks to identify how one improves this is ensuring that there is an independent advocate or somebody who has the ability to deal with the communication difficulties of the sort she proposes. That is in her Amendment 546, which would ensure that you are entitled to an independent advocate if you have communication or speech difficulties.

I hope the noble Baroness will be persuaded if she looks at my Amendment 548A, which sets out in detail, by amendment, the circumstances in which an independent advocate has to be made available. I am sorry to go through this at speed, but I have no other options. Who is entitled to an independent advocate? In proposed new subsection (8)(b), it is a person who

“would experience substantial difficulty in … communicating their views, wishes or feelings (whether by talking, using sign language or any other means)”.

So we have sought to do the same thing as her Amendment 546 proposes. I do not invite her to agree or not at the moment, but I very much hope that she looks at that and that she agrees that we are all trying to get to the same end. I completely accept how she framed the issue around people who have the sort of communication differences that she and the noble Lord, Lord Moore of Etchingham, referred to. I am sad not to see him in his place, but no doubt somebody will tell him—he dealt with exactly that sort of issue. So I am with the noble Baroness on this, and I hope she will be satisfied that I have dealt adequately with the position.

On Clause 5, the noble Baroness, Lady Nicholson of Winterbourne, said: make sure that there is an interpreter and, she would add, an amanuensis. I hope she will take the opportunity of looking at my Amendment 548A and see that it would cover people who are deaf. But, again, if she is not satisfied with that, I would be more than happy to meet her—but I hope she will be satisfied with that. That deals with people with communication and hearing difficulties.

I turn to people who are under cultural pressures, religious pressures or pressures from their sexual identity. I completely understand this because I have had the benefit of conversations with the noble Baroness, Lady Nicholson of Winterbourne, who put to me the following example: a woman who is of a religion that would tell you that you would suffer in hell for ever after if you were to have an assisted death, but who is having one because she is being pressured by a man whom she is used to taking orders from, in effect. The question is not whether one makes special provision for that but whether our five layers of safeguard provide protection against that. I believe that having one doctor, a second doctor, the first doctor looking at it again, the panel and the first doctor looking at it again will identify those cases. So I understand what the noble Baroness says and I hope that, with the safeguard provisions that we have put in, we have covered that.

The final group is the one from the noble Baroness, Lady Grey-Thompson. She wants amendments that say that the report the first assessing doctor has to give should be in a language and format that is accessible to the person getting it. I completely agree. The clause makes provision for the Secretary of State to make regulations about all those matters, including that, and I would expect those regulations to deal with that.

[Baroness Berridge (Con)]

The noble and learned Lord has not covered my point.

[Lord Falconer of Thoroton (Lab)]

In relation to the point from the noble Baroness, Lady Berridge, that there should be an absolute exclusion on interpreters under 18, she makes the point that in a case involving, for example, a person under 18 who is the child of somebody going through an assisted death, it would be wholly inappropriate for them to have to deal with that. Again, I do not think we should provide for that in the Bill. It should be dealt with by code of practice. I can envisage circumstances in which somebody who is terminally ill and who does not speak English is comfortable only with their 17 year-old child being the interpreter, so I would be not in favour of an absolute exclusion in those circumstances.

[Baroness Berridge (Con)]

To clarify, is the noble and learned Lord saying that a mandatory exclusion would be in a code of practice? We cannot do that unless it is in the Bill. In relation to the latter point, we will just have to agree to differ on the safeguarding issues in relation to a 17 year-old, but would he be agreeable to 16 being the cut-off and mandatory?

[Lord Falconer of Thoroton (Lab)]

I am not in favour of a mandatory bar on any young person. I expect it to be dealt with in a code of practice. I agree that unless there is a mandatory provision in the Bill it will not be effective, but I am not in favour of that mandatory ban.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Falconer of Thoroton and Baroness Berridge

Committee stage
Friday 13th March 2026 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

On the noble Baroness’s first question, Clause 17(5) says that:

“Where the panel considers it appropriate for medical reasons, it may make provision for the use of pre-recorded audio or video material for the purposes of subsection (4).”


Subsection (4) relates to all of the material that the panel is dealing with. Subsection (5) is saying that the panel can use pre-recorded audio material if it thinks it is appropriate. I think it should be given that direction—I cannot see any reason why the panel should be restricted in relation to that.

Turning to the privacy point, paragraph 6 of Schedule 2 says that:

“Panels are to determine referrals in public”—


so the default is that it is in public, not private—but that

“this is subject to sub-paragraph (2)”,

which says that a panel can sit in private if that is what the person wants. The question from the noble Baroness was, basically, why should everything then be in private. It is because everything is about the patient. The whole thing is about the patient. If I want the circumstances of my illness and why I want an assisted death to be private, I should have that option. It is unrealistic to say that we can chop this up into the bits that are about the patient and the bits that are not.

[Baroness Berridge (Con)]

The noble and learned Lord is correct that the amendment refers to the wrong person at the local authority. However, the substance of what I said two weeks ago about Amendment 462A is this: does not the panel need a power to ensure it can ask a local authority to meet unmet needs of the person in front of it, such as if their care package has fallen apart or there is a problem with their benefits? At the moment, it has no power to do anything other than approve, if the boxes are ticked. I am not saying that poor people should not apply, but I am asking the noble and learned Lord whether the panel should not have a power to ensure those needs are met when it has that evidence in front of it.

[Lord Falconer of Thoroton (Lab)]

The panel has the power. Clause 17(4) says that the panel

“may ask any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate.”

That power would include a power to ask the local authority to provide any information it wants.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

The point of this part of the Bill is that it is a legitimate option. If the noble Lord is saying that because we have suicide prevention policies in other areas, we should still treat it as something that we should not in any way encourage or help people to access if that is what they want, that is wrong. The true position is that, once it becomes an option, subject to the safeguards being gone through, it is something that people should know about and make their own judgment about.

[Baroness Berridge (Con)]

I do not think we have fully understood these two categories. I was grateful to the noble and learned Lord for the meeting with Professor Ruck Keene. It is clear, particularly when you are talking about the Mental Health Act, when there are two different statutes you can choose from, that we need to be clearer about that for clinicians. So, unfortunately, even at this late stage, I am afraid I will have to lay some amendments so that we can really talk about this in detail, because it is a matter of concern, particularly to psychiatrists.

On the points I have made about children, I accept the point from the Minister that the probing amendment is probably too wide. However, we have not even had the comments on the categories of people who can now raise this with children, such as schools, et cetera. I also raised the point—I am grateful that the noble Lord, Lord Tarassenko, is now in his place—that I believe we also now have this gap with regard to what advertising prohibits. You have medical practitioners unable to raise it with under-18s, but then you have a whole wealth of technology in between that, which can, as we know, even with a mistaken question, raise this issue with under-18s. What does the noble and learned Lord envisage will happen in those scenarios, which are at the moment subject to legal cases in other jurisdictions?

[Lord Falconer of Thoroton (Lab)]

A whole range of issues is covered to a large extent by the Online Safety Act in relation to the promotion of suicide, particularly to young people. That, in a way, is a separate issue from this issue. I fully encourage and support all attempts to try to reduce the risks to young people, but I am afraid that the Bill cannot take that on, on its own.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Falconer of Thoroton and Baroness Berridge

Committee stage
Friday 27th February 2026 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

Yes, I understand that.

[Baroness Berridge (Con)]

I am grateful to the noble and learned Lord for his realistic acceptance of the difficulty of judicial review as a remedy for many people. I would be grateful if he could also reflect on the situation with family members: if the panel approves assisted dying, their remedy to challenge that is judicial review. We heard evidence in the Select Committee, particularly from Sir Nick Mostyn, that that is just fine. Many of us, particularly myself, do not feel that it is satisfactory for family members to have to resort to judicial review if they have evidence, for instance, that there has been coercion. Will the noble and learned Lord reflect on that, which may avoid further amendments later down the line?

[Lord Falconer of Thoroton (Lab)]

I will certainly reflect on that, and may I express my gratitude to the noble Baroness, Lady Berridge, for facilitating the meeting with Professor Ruck Keene? It was incredibly helpful, and I genuinely appreciate it. Yes, I will reflect on what the noble Baroness said. I suspect there will be a similar answer to the one I gave to the noble Baroness, Lady O’Loan: we have to be as specific as we possibly can in the Bill, because judicial review is difficult for normal people, particularly in those circumstances. That is why, whether it is a court system or any other system, we must try to make this as clear as possible in the Bill.

Amendment 146, in the name of the noble Baroness, Lady O’Loan, says that the assisted dying commissioner should be able to investigate patterns. In particular, she cites what may happen in relation to care homes. I agree that the assisted dying commissioner should have that ability. He does have that ability under Clause 49(1)(a), (b) and (c); so, for example, if he is concerned about a pattern developing in care homes, he already has the power to monitor that.

The noble Lord, Lord Morrow, asked whether there should be a further Equality Act assessment. I dealt with that last time and said I had looked carefully at what the former commissioner had said and I did not think that a further impact assessment was appropriate, because, if you constantly make particular points that are covered in general, you are never going to get to an end of it. I do not think that the points the commissioner raised were ones that had not already been considered in the impact assessment.

--- Later in debate ---

[Baroness Berridge (Con)]

My Lords, I will speak to Amendment 462A in my name, which outlines that, before approving any application, the panel must be satisfied that the person requesting assistance has had the requisite assistance from the local authority in relation to the delivery of statutory services.

The amendment deals with the problem caused by the basic principles of the Bill, which is based on a very narrow concept of procedural autonomy. If it is only this that matters, then for the panel, as long as they can tick the boxes saying there is no coercion or pressure, and that the person has capacity et cetera, then the application is approved. It is approved under the current drafting of the Bill even if the panel believes and has evidence that the person is applying because, for instance, their housing is inadequate, the care package fell apart, they are actually grieving for other relatives or they are poor.

This amendment would mean that, before any such approval is made by the panel, it must be satisfied that the local authority has received a referral to look at the statutory provision of services for the person. In relation to this, I am grateful that the noble and learned Lord enjoyed his meeting with Professor Alex Ruck Keene, because he has put this a number of times in written and oral evidence about the concept of the panel and its powers, and it is worth quoting:

“You have to think … carefully about what purpose any … of this oversight is actually serving societally, if the oversight panel, whether that be a judge or a panel, cannot decline to approve an application if it considers that the reason the individual is seeking assistance in dying is because of service provision failures by the statutory bodies responsible for meeting their health and social care needs”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 28/1/25; col. 96.]


I know the noble and learned Lord has answered many questions and commented about the access to this service for the poor. This is a different question. I am not saying that poor people should not be able to apply. I distinguish that from a situation where the panel has concluded on the evidence that, although the person satisfies all the tests under the Act, the evidence is that they are before the panel because they are poor. There are many instances of this from other jurisdictions, for instance, particularly in relation to homelessness. People have come forward for MAID in Canada because they are homeless, which is available because it is not just for terminal illness in Canada.

In relation to the amendment, it may be that the drafting needs to be different; it might be that this needs to be done not just before the provision but can be twin tracked, so that you approve the application but at the same time make sure the local authority deals with the provision of services. I hope the noble and learned Lord will take seriously this additional power for the panel to ensure that people are there for the reason that they are exercising their autonomy in relation to the Act and not pressured because of lack of statutory services.

[Lord Falconer of Thoroton (Lab)]

The noble Baroness refers to it as an additional power but, as I understand the amendment, it says that this is an additional requirement for a certificate of eligibility.

[Baroness Berridge (Con)]

I am grateful to the noble and learned Lord. I accept that drafting changes might be needed between now—

[Lord Falconer of Thoroton (Lab)]

The noble Baroness says, “drafting changes”, but there is a fundamental difference between saying that this is an additional condition that the panel has to be satisfied of and giving it a power. I understand the noble Baroness’s amendment to be saying that an additional requirement needs to be satisfied.

[Baroness Berridge (Con)]

When I mention drafting changes, I mean in relation to the timing of this. As drafted, it would need to be done before the application is granted, and it may be that the requirement to go to the local authority could be at the same time as having approved it, not before. But, yes, this would be an additional requirement on the panel.

I hope the noble and learned Lord the sponsor or the noble Baroness, Lady Finlay, can help with my second point on the principle of the Bill. The noble Baroness, Lady Hayter, referred to the situation based on autonomy: the individual wants to do this and does not want to tell relatives. If we are strict purists about that—we had evidence on this at the Select Committee—then with this Bill there could be a situation where the first time anyone hears about the death is when the medical examiner telephones a relative.

I have tabled amendments in a different group on a requirement to nominate next of kin who are over the age of 18. I think it would be useful for the Committee to know what the situation is if someone acts completely autonomously like this and the body is there. Does the noble and learned Lord the sponsor need to bolt on a provision so that there is a public health burial? That is the continuation of the logic of this that you can do this alone, with no one in your life knowing about it. Therefore, to exercise that autonomy fully, there would need to be a public health burial, with everything done before anyone in the family knows. That is a conceptual difference. The noble and learned Lord and I spoke about this in a meeting in relation to what the law is, and it would be good for him to clarify the situation. Can the medical examiner not call anybody and go forward with a public health burial?

Terminally Ill Adults (End of Life) Bill

Debate between Lord Falconer of Thoroton and Baroness Berridge

Committee stage
Friday 30th January 2026 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I am grateful to the noble Baroness, Lady Coffey, for raising artificial intelligence. There was, broadly, a consensus around the Committee, which the noble Baroness supported, that the amendment is much too blunt, but as she said, fairly, it gives us an opportunity to talk about AI. I will also pick up the right reverend Prelate the Bishop of Hereford’s contribution; he rightly said, as has been echoed around the Committee, that there have been huge benefits for patients from AI.

I think four concerns were raised during the debate. The first was: will AI affect decision-making? I think the underlying point there is that we do not want machines to make the decisions that are referred to in the Bill; we want human beings to make them. In particular, the decisions I have in mind are the decision of the first doctor, the decision of the second doctor, the decision of the panel, and the decision of the doctor, at the point that the assistance is being given, that the conditions are still satisfied. Everybody around the Chamber wants that to be decided by a doctor or a panel, depending on which it is, and I completely and unreservedly endorse and accept that.

Does that need to be made even clearer in the Bill? I will consider it, but I do not think that it does. The acid test for me is that if you fail to comply with your obligations as a doctor or as a panel, you can go to prison for up to five years. It is very difficult to imagine how you could put a machine in prison, so it is pretty clear that these decisions must be made by a human being. For my part and for everybody who supports the Bill, that must remain the position.

The second concern is advertising, which the noble Baroness, Lady Berridge, referred to. She is absolutely right. I have made it clear that I will bring forward amendments. Those amendments, which are almost finally drafted, make provision specifically in relation to digital advertising—they do not specifically refer to AI, but we need to address that in the advertising provision. I will lay those amendments so that the House can consider them.

The third concern is slightly generalised, which is that AI is very persuasive, particularly in persuading people to do things that they do not necessarily want to do. The first thing on that is that there is a wider societal requirement to address the pervasive impacts of AI in a whole range of things. We should all try to contribute to that. More focused on this is the question of the safeguards in the Bill, because they then become incredibly important. In particular, the safeguards require that there is doctor-to-patient discussion in relation to the decision for that patient, and they are specifically required in the preliminary conversation, the first conversation and the second conversation. It is those safeguards that one must see as the antidote to the persuasive aspect of AI, but I completely accept what people said on that.

The fourth issue, which was touched on very briefly, was the operation of devices. That, I think, referred to the fact that quite a number of medical devices can be operated by, for example, the blink of an eye or something quite minor. Again, that needs to be properly safeguarded. Those may not necessarily be AI problems but problems with other sorts of developments in technology.

I thank the noble Baroness, Lady Coffey, for raising this. We need to consider all the points she made. At the moment, apart from the advertising amendment, which I will bring forward, I am not sure that it requires amendment to the Bill.

[Baroness Berridge (Con)]

Is there a guarantee that we will see those amendments in Committee rather than on Report? That is important, because there is a very different procedure in Committee, in which we can go back and forth and query amendments.

[Lord Falconer of Thoroton (Lab)]

I am going to do my best.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Falconer of Thoroton and Baroness Berridge

Committee stage
Friday 23rd January 2026 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

It is for Parliament to decide whether it is willing to pass the Bill. If Parliament is willing to pass the Bill, there may be the need for the legal change that the noble Lord, Lord Stevens, referred to. Whether or not you are willing to make the change is, for the reason I have said, a matter of what you think is the principle. Those are the only remarks that I need to make in relation to that, and I invite the noble Lord to withdraw his amendment.

[Baroness Berridge (Con)]

There will later be a group of amendments that relate to freedom of conscience. The noble and learned Lord has outlined another group of people in response to solving the issue from the Delegated Powers Committee around commissioners and NHS England. At this stage, in an effort to use our time efficiently, will he think about how wide the conscience clause will need to be to include people who have objections to this—it is not just clinicians; it may be those who do not want to be involved in commissioning these services—so that we do not end up with a huge group later in Committee?

[Lord Falconer of Thoroton (Lab)]

I will certainly think about it. I am not quite sure what the noble Baroness is asking, but whatever it is, I will try to co-operate as much as possible.

--- Later in debate ---

[Baroness Berridge (Con)]

I made precisely this point, not about the information that is provided but about how people are getting their information, and about misinformation. We are beginning to hear of cases of ChatGPT potentially suggesting that a young person take their own life. Informed consent as the noble and learned Lord described is very much in the classical sense, as I learned. The point I made is about dealing with misinformation and malinformation. What is the duty now? I invite the noble and learned Lord to write to me, but I think—I hope—it is a developing area of law.

[Lord Falconer of Thoroton (Lab)]

I apologise; I should have answered that request. I do not want to write; I want to tell the noble Baroness the answer now. The Bill, in the places that I have indicated, says that the panel, the two doctors and the assisting doctor must be satisfied that the consent is informed. If the position is that the person who wants the assistance, or is about to get the assistance, is misinformed in the way that the noble Baroness described, that would not be informed consent. For example, having been subject to digital information that is completely wrong or misleading in what it says would not be informed consent. As time goes on, no doubt doctors and others who have to satisfy themselves that the consent is informed will have to take steps to ensure that the patient’s understanding is right.

This goes to what the noble Baroness, Lady Finlay, said. Sometimes, people do not take in what you are saying. Some people take in the wrong thing. Other people are, in the back of their mind—you cannot know this—thinking of something that is completely wrong. It is for the doctor or the panel in every case to satisfy themselves. It is explicit in the Bill that consent must be informed.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

Again, I do not think it needs to be on the face of the Bill, because the Bill is clear about the rights of the doctor in relation to that.

[Baroness Berridge (Con)]

Sadly, for the noble and learned Lord, I think that there are more amendments that need to be discussed, including one that I have laid. We have all discussed this on the basis that there is no one else in the room. There could be relatives there expressing a wish. We have discussed this on the basis that the patient rises and has capacity. They may not have capacity and there may be relatives in the room with enduring powers of attorney. The noble Baroness, Lady Hayter, shakes her head, but there are many scenarios in which there is not clarity in the Bill between the moment the drug is administered and the moment of death or it fails. I am afraid that I give the noble and learned Lord notice that I think we will have to come back to this, because the medical profession is asking for clarity.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Falconer of Thoroton and Baroness Berridge

Committee stage
Friday 9th January 2026 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I do not accept that. The position is in relation to the panel. If it wants a report from a doctor, it can get it. I understand the noble Lord, Lord Carlile, to be saying that the court can ask for all these things—which of course it can—and if it thinks they are appropriate, it will do so. I assume it will not ask for them when it does not think they are necessary to the resolution of the issues. The panel can do the same and, if it does not get them, just like the court, it will have to say no.

[Baroness Berridge (Con)]

In relation to the panel, as a non-medic I understand from my time on the Select Committee that “multidisciplinary” has a particular meaning within healthcare that the witness to the Commons was relating to, so it is not quite the same issue. Is the noble and learned Lord not concerned that only two of the three representative bodies of the panel came and gave evidence to the Select Committee, and the British Association of Social Workers and the Royal College of Psychiatrists are not supporting the Bill, regardless of what their view might be on the principle? Although the noble and learned Lord is obviously very well persuaded by the evidence, the professional bodies that would sit on this panel are not yet persuaded.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Falconer of Thoroton and Baroness Berridge

Committee stage
Friday 5th December 2025 Lords Chamber

[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.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Falconer of Thoroton and Baroness Berridge

Committee stage
Friday 21st November 2025 Lords Chamber

[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.

Justice and Security Bill [HL]

Debate between Lord Falconer of Thoroton and Baroness Berridge

Monday 23rd July 2012 Lords Chamber

[Baroness Berridge]

My Lords, Amendments 71 to 75, 77 to 79 and 81 to 87 all have my name on them. As the detail of those amendments has already been outlined by my noble friend Lord Lester and the noble Lord, Lord Pannick, I will follow the noble Baroness, Lady Williams, and focus on the core purpose of Amendments 85, 73A and 77A, which is to introduce limited grounds for the disclosure of information received in confidence by the intelligence services and amend what would otherwise be a complete ban on disclosure under Clause 13.

These amendments are required, as David Anderson QC pointed out to the Joint Committee on Human Rights in his evidence, when he said that,

“you are not going to get away with a blanket exclusion of all evidence in the hands of the security service, or even all evidence in the hands of the Government, as they suggest at one point”—

he means in the context of the Green Paper.

Although the disclosure jurisdiction that we deal with today began in the intellectual property field, it is completely by accident that the principles behind the jurisdiction were first applied there. On considering these amendments, I reread the judgment of the noble Lord, Lord Reid, in the Norwich Pharmacal case. It is clear that the jurisdiction is based on sound principle. It is important to consider that principle as it goes to the heart of why these amendments are required.

It is best understood by a threefold division of cases—and I would term myself a Championship not a Premier League lawyer here. First, there are cases where the person, usually the UK Government, is directly responsible for the wrongdoing and a civil case is brought directly against them as the defendant. Clause 13 leaves those actions completely unaffected. Secondly, there are cases where the person in question is a bystander, spectator or mere witness to the wrongdoing. In those circumstances, no action can be brought against that person, they are not even complicit and Norwich Pharmacal will fail.

However, there is a small, narrow group of situations—which are, as the noble Lord, Lord Pannick, has outlined, even narrower after the case of Omar—where, although not directly responsible for the wrong, there is sufficient connection to the wrongdoing that a requirement attaches to you to disclose information or material in your possession that helps the victim of the wrongdoing to seek redress; that is, more often than not, court proceedings. This obligation is based on the limited culpability that attaches as one is mixed up, even innocently, in the wrongdoing. I would term it a bit like moral velcro. Being mixed up in wrongdoing sticks you with certain limited responsibilities.

The kind of mixing up by the UK Government, in cases such as that of Binyam Mohamed, is questioning a man after you should have, at the very least, been aware that he had been tortured. When I read of the injuries to Binyam Mohamed it was rather disturbing. According to the findings in that case, the UK took some of the fruits of that torture by questioning him, although it is important to emphasise clearly that the UK Government were in no way involved in that torture.

I accept, of course, the evidence of the Joint Committee on Human Rights that the intelligence services in the United States, for example, are disclosing less intelligence to the United Kingdom because of the fact, or perception, that the information could be disclosed through our courts. But the first caveat is the Government’s own Green Paper, which outlines that there is no suggestion that key threat-to-life intelligence would not be shared. The second caveat is whether this fact or perception is justified. As the UK courts have never ordered the disclosure of such material, and any Norwich Pharmacal application that could be made subsequent to the case of Omar would be followed by a PII application as well, the risk is minimal. Allowing limited Norwich Pharmacal applications as outlined in these amendments would be a proportionate response to that minimal risk.

It is also interesting to note the change of position by the United States concerning whether the control principle was breached in the case of Binyam Mohamed, as outlined by the ISC report for 2009-10, in which the United States does not seem to think that there has been a breach of the control principle. In the 2010-11 report, the United States seemed to think that there had been one. It is interesting to note that it is the same time period which saw the mass of WikiLeaks disclosures. I would be saddened if the mistaken perception of our judicial processes or an understandable oversensitivity to the control of its own intelligence material could lead to a change in our law to exclude this jurisdiction from human rights cases, especially when, unfortunately, the alleged wrongdoer may also be the United States.

I would expect that the mere receipt of intelligence information that discloses wrongdoing, even information obtained by torture, is being a witness. Can my noble friend the Minister explore whether the requirement that in national security cases a greater culpability of connection to the wrongdoing other than being innocently mixed up would satisfy the concerns of the United States? If complicity by the United Kingdom is needed, cases where Norwich Pharmacal would apply should be very rare.

In essence, the argument from the Government is that our intelligence services lack certain information and therefore our national security could be at greater risk. I expect the Government to oppose the amendments, especially as it is the first duty of the Government to protect their citizens. I agree that it is the first duty, but it is not the first principle—otherwise protecting national security could justify torture, and it is crystal clear from the Reith Lecture from the noble Baroness, Lady Manningham-Buller, that the UK does not. Protecting national security and even going to war must still be conducted within certain ethical and moral constraints, which include that if you get mixed up in the wrongdoing you may—subject to five stringent tests in the Norwich Pharmacal case, and following a PII application—have to disclose material to help the victim defend himself against a capital charge. I fully accept that the United Kingdom is the junior partner in this situation, and is probably more reliant on intelligence material from the United States than vice versa. But your ethical and moral principles are often tested—or perhaps only tested—when you are the less powerful person in the situation, not when you are in command.

I end with a very simplistic point. The remedy may not even need to be legislation. If the UK does not get mixed up in, as opposed to merely receiving information about, other countries’ wrongdoing and, a fortiori, if the United States ceased this kind of wrongdoing, it can rest assured that the veil of the control principle cannot be pierced by Norwich Pharmacal. The remedy to some extent lies in the hands of the United States, and it is regrettable that President Obama did not fulfil his election promise to close Guantanamo Bay, which might have provided a line in the sand in this group of cases. I am pleased to live in a place with the high ethical constraints of Norwich Pharmacal and that we have a mechanism to release such information in situations that could literally save a man from the electric chair. The door to such information should be hard to open, but not absolutely barred. I support this group of amendments.

[Lord Falconer of Thoroton]

My Lords, it has been a very powerful debate. I am particularly grateful to the noble Lords, Lord Lester and Lord Pannick, for maybe seeing a way through a very difficult issue. Both issues that the Bill raises are difficult, but this is the more difficult. The first one, about fairness and making sure that one sticks to fair procedures, necessarily involved a solution whereby the courts made the balance. Ultimately, if there was damage to national security, the intelligence services would be able, if they wanted, to withdraw the case and there would be no damage to national security. This is a much more difficult one because the intelligence services do not have the option of withdrawing from the case.

As the noble Baroness, Lady Berridge, and the noble Lord, Lord Lester, explained, in a Norwich Pharmacal application, when no proceedings are afoot you go to court and say that either the British Government or the intelligence services have either committed wrongs or got mixed up in wrongdoing, and you ask them to disclose documents that show their involvement, not necessarily with the intention of suing the British Government but because you may wish to sue someone else. The courts have dealt with that by saying, “Okay, we’ll consider these Norwich Pharmacals”. If it is concluded that the position is made out whereby one would, prima facie, make a Norwich Pharmacal, the courts then say to the Government, “Okay, we are going to make a Norwich Pharmacal subject to the Government making a PII application”. Then the courts have to balance whether national security outweighs the interests of the individual. I do not know how that balance is to be struck, because it is not easy to strike it as it would be in ordinary litigation. Indeed, except in two cases, it has never been struck. It is not open to the Government to say, “Okay, we’re going off the field at this point”. If the court makes the order and overrides the public interest, it is disclosed.

That process has unquestionably caused some of our allies concern. The effect of the Binyam Mohamed case was that, even though two out of the three judges said that the control principle had not been broken because the intelligence material was no longer secret—I refer to the principle that if one country gives another country intelligence, the other country cannot use that intelligence without the first country’s consent—the United States Government now give us less information than they did previously. That is what Mr David Anderson said in his supplemental memorandum for the Joint Committee, which expressly said that it did not know whether it was right or wrong and that all it had to go on was what Mr Anderson said. However, he was clear that the effect of the court making it clear that a balance had to be struck, as unquestionably is the case, was that people did not feel so secure about the intelligence that they gave and so gave less. However, as the noble Baroness, Lady Berridge, and other noble Lords have said, they will give us intelligence when there is an immediate threat to life.

The effect of the current position is that we get less intelligence material from the United States of America and maybe our other allies because they are worried that the English courts might order their disclosure. The Joint Committee on Human Rights took the view in the light of that—this is my reading of it—that the minimum should be done to give the reassurance required to get the maximum protection in relation to intelligence. If you took that approach, is what the Bill proposes the minimum that can be done to provide protection?

The noble Baroness, Lady Berridge, described a typical Norwich Pharmacal stripped of any complication about intelligence. It would involve me going to have a cup of tea in a cafeteria in Thames House or Vauxhall Cross and me slipping on the floor, breaking my leg and saying that I would sue whoever owns the building, which is the intelligence services—but they say, “Actually, an independent contractor cleans the floor and it is absolutely their fault that you slipped”.

I could bring a Norwich Pharmacal order if the intelligence services did not tell me who the contractor was in order to bring my action for a broken leg because it had inadvertently got mixed up in wrongdoing. The effect of Clause 13(3) of the current Bill is that, because the information was held by an intelligence service, it would not be able to say, “No, you cannot have the information about who cleans the floor”. It would be the same if I were run over by a van carrying papers to the FCO and I wanted the maintenance records held by someone else; it could say no.

It is plain that the Government do not intend to cover those sorts of cases. What they do intend to cover are the cases where there is a genuine threat to the control principle and you cannot deal with it because the courts are absolutely right in saying that if the courts are going to make a decision they must have a balance.

Justice and Security Bill [HL]

Debate between Lord Falconer of Thoroton and Baroness Berridge

Wednesday 11th July 2012 Lords Chamber

[Lord Falconer of Thoroton]

Yes, indeed, and in relation to that the Government would be free to withdraw their defence—indeed this is the route that was taken, as I understand it—at which point national security would be protected. It is that situation that we are dealing with first. As I was saying in relation to Norwich Pharmacal, which we shall deal with at a later stage in proceedings, the Government do not have the option of withdrawing from the case. The consequence of this is that they may be forced to disclose information that any reasonable person would think damaging to national security. Equally significantly, those foreign intelligence agencies that provide us with information might consider that it is no longer politick or sensible to do so.

This evening, however, we are dealing with the category of fairness in the context of civil proceedings, rather than danger to national security. The change proposed by this Bill is significant. Very helpfully, in answer to one of the many reports that Parliament has produced on this issue, the Government have set out the list of circumstances in which closed proceedings are possible at the moment. Generally, they are terrorist-related and not usually in relation to resolving a dispute between two civil claimants; it is about whether the state is going to do something not good as far as the individual is concerned. Therefore, this would be a significant change.

Issue number one for the Government is to establish that there is a sufficient problem—unfairness to the state—to demand this quite significant change. Here in the Chamber we are all aware that in the Al Rawi case the Supreme Court said closed proceedings generally are not fair. That does not mean this is not the answer because it may be the best that can be done. However, we need to pause before introducing a system where, as the noble and learned Lord, Lord Kerr of Tonaghmore, said—and everybody agreed with this—closed proceedings could lead to a situation where a judge is looking at material that is not only not cross-examined but might be misleading.

What is the case for the change? The Joint Committee on Human Rights, on which the noble Lords, Lord Faulks and Lord Lester, and the noble Baroness, Lady Berridge, sit, had quite detailed hearings about this. To start with, it did not get any evidence. After it closed its witness sessions, it got evidence from Mr David Anderson QC who said that there may be “a small but indeterminate” number of cases,

“both for judicial review … and for civil damages, in respect of which it is preferable that the option of a CMP … should exist”.

In relation to those cases, it was his view that,

“there was material of central relevance … that it seemed highly unlikely could ever be deployed”,

except in closed proceedings.

David Anderson QC divided his two sets of cases into judicial review and ordinary civil damages claims. The judicial review proceedings were all in respect of refusing naturalisation or excluding an undesirable from this country. Those judicial review proceedings are now dealt with under Clause 12, so we put them to one side. He said that three civil damages claims were the foundation of his case that there was this small group of cases in respect of which CMP might be useful.

In response to what David Anderson QC said, a number of special advocates put in evidence in which they questioned his conclusion that the evidence referred to could be deployed only in closed session. They referred to the fact that in every case in which they had been involved, which slightly reflects what the noble and learned Lord, Lord Woolf, said, there always proved to be a way, whether by redactions, gisting or some other means, in which the material was deployed in some way without damage to national security. That is where the evidence rests at the moment.

I should say that I was Solicitor-General for a period of time. One of the things that the Solicitor-General does is look at PII certification. There were some difficult problems that were getting worse when I left the post. I suspect that they got worse after I left because the situation in the world changed. I should also say that David Anderson gave very sensible advice and was highly respected. We are in a position where the only person who has seen the detail of the cases is David Anderson QC for whom I have great respect. We are also in a situation where it is perfectly possible—the noble Baroness, Lady Manningham-Buller has said this—to envisage cases where intelligence is completely the defence on which the Government would legitimately rely but could not disclose. As the Joint Committee on Human Rights has said, the Government have slightly damaged themselves by the strange way in which they have deployed their case. We are willing to be persuaded, but we need to be persuaded.

[Baroness Berridge]

There is a slight update on the position of the Joint Committee on Human Rights. As a result of Mr David Anderson QC seeing those cases, he came back to give evidence to us. The suggestion was put to him that the special advocates look at those three cases. After he saw those cases and said what the noble and learned Lord has outlined, we received representations saying, “That is not a correct procedure. We need to go in as well to see those cases and to see whether they cannot be dealt with”. At the moment, I believe that the special advocates with security clearance have been invited to go in and look at those cases, so that we can have two views on whether those cases can be determined under the present system.

[Lord Falconer of Thoroton]

I was aware of that. The Joint Committee on Human Rights said:

“The flexible and imaginative use of ancillary procedures (such as confidentiality rings and ‘in private’ hearings) has meant that to date there is no example of a civil claim involving national security that has proved untriable”.

So the committee is saying that there may be ways around that. I find it difficult to imagine that the key point about the closed material procedure is that the claimant does not see the documents. From what has been said—this may well be right—the claimant is the person you do not want to see the material. How does a confidentiality ring or an in-private hearing deal with that fundamental point about closed material proceedings? From this side of the House, we understand what is being said but query whether the case is yet proved.

On the second issue, let us assume that you need something because the case is to be treated as proved in relation to these three cases, which is what is relied on. Is what the Government are proposing the right answer? Remembering that the point here is fairness and not the protection of national security, in our respectful submission, the solution is obviously flawed. There are two problems with it. First, it says that where a Minister certifies or contends that national security would be damaged—no balancing exercise: end of story—closed material proceedings are allowed. No balancing would be allowed.

There is a little bit of movement on the other side in relation to that. I say that because Clause 6(1) states:

“The Secretary of State may apply to the court seised of relevant civil proceedings for a declaration that the proceedings are proceedings in which a closed material application may be made to the court … The court must, on an application under subsection (1), make such a declaration if the court considers that … such a disclosure would be damaging to the interests of national security”.

There is no balancing of any sort before you get to the declaration of Clause 6(1).

Clause 7(1)(c) makes provision for rules of court and states that,

“the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”.

Once even the most minor damage to national security is established, the door comes down and you do not disclose.

I cannot believe that that is what the Government intend in relation to this. They do not even include in the provision anything along the lines of “Before you do that, think very carefully about whether the problem can be avoided by any one of the many means currently used”. My two big worries about the Bill in this respect would be, first, that there is no balancing exercise and, secondly, that there is no requirement for there to be thinking about whether there are means by which it could be avoided in other ways.

The noble Lord, Lord Thomas, and the noble and learned Lord, Lord Woolf, came together in an unusual combination in relation to this. They said that maximum flexibility is the answer and I agree. This is not a maximum flexibility situation. For the two reasons that I have given, I would respectfully submit that the Government have got it wrong in relation to this.

What is the answer? For the reasons I have given, I think that what the noble Lords, Lord Faulks, Lord Lester and Lord Pannick, have proposed does not quite get there. I cannot understand why the obvious answer, at the moment, is that you give a judge the power to rule that it is PII and is not disclosed; or that it is disclosed in full; or that, in exceptional circumstances, it should be heard in a closed material proceeding. With the amendment in the names of the noble Lords, Lord Faulks, Lord Lester and Lord Pannick, you end up in a situation where only if you say no to disclosure can there then be a closed material procedure. However, there must be cases where it is a finely balanced thing. If the court was forced to choose between disclosure and non-disclosure, it would choose disclosure, but if it also had the option of a closed material procedure, it would take that. The amendment does not allow for that flexibility.