Terminally Ill Adults (End of Life) Bill

Debate between Lord Harper and Lord Falconer of Thoroton

Committee stage
Friday 13th March 2026 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I have thought very carefully about the amendments we have gone through. I am sure they are all based on attempts to improve aspects of the process, such as the appointment of the panels, how the panels operate and the privacy issues. I should say that very considerable thought went into those issues before the Bill was drafted and as it went through the other place. I have given detailed reasons as to why I think the amendments we have debated would not really improve the position. For those reasons, after giving it considerable thought, I think that the Bill probably reached a better conclusion on, for example, the “must” and “may” issue that the noble Baroness raised and the need for special extra expertise. I have given it careful thought, but I do not think any of the amendments we have gone through would improve the Bill.

[Lord Harper (Con)]

I want to pick up a point made by the noble Baroness, Lady Berger, and the noble and learned Lord’s response to it. There are two aspects to what she said: whether the noble and learned Lord thought that any of the specific amendments might need bringing forward in a different form, and whether he thinks any of the issues raised, or concerns expressed, by any of the professional organisations that gave evidence raise any issues at all that he thinks need improving in the Bill, even if he thinks none of the amendments is acceptable. Does he think that all of those professional bodies’ concerns, and the evidence they gave about them, are misplaced?

[Lord Falconer of Thoroton (Lab)]

Professional bodies have raised a whole range of concerns. That has informed the drafting of the Bill, and certain changes have been made in the light of a variety of those concerns. I certainly am not saying that we know better on everything than the royal colleges. Their thoughts since the Bill has been published have been taken into account.

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[Lord Falconer of Thoroton (Lab)]

My Lords, I am grateful to the noble Lords who have participated in this debate. I will divide my responses thematically under four headings.

I turn first to the new scheme proposed by noble Baroness, Lady Finlay of Llandaff, in relation to how one deals with safeguarding here. The scheme would involve not having two doctors, then the panel, and then a doctor again at the point of administration; instead, the person who wants an assisted death would have to apply to a separate organisation, where a panel of up to seven people would consider their application. That panel would consider whether the safeguards are satisfied, as well as a number of other questions. If it were satisfied, it would give a provisional certificate of eligibility. The drugs could not then be delivered—I use that word without meaning “delivered to the person”—because an application for fast-track care and support would have to be made. If that application were granted, then—and only then—could the drugs be administered.

If there were doubt in the mind of the seven-person panel, the matter would be referred to the High Court. The provisions put forward by the noble Baroness do not specify what the role of the High Court is. The panel has to satisfy itself that a number of questions have been addressed, although those questions do not determine whether or not somebody is entitled to an assisted death. That is the proposal from the noble Baroness, Lady Finlay. The current proposal in the Bill is that the co-ordinating doctor has to satisfy themselves of seven or eight strict matters, and then the panel considers the case. The co-ordinating doctor then, satisfied that the conditions have been met, provides assistance to the person who wants to die.

Underlying the distinction between the two proposals is the wish of the noble Baroness that the whole process of assisted dying be kept completely separate from the care that is being given to the patient. I am sorry that neither the noble Baroness, Lady Cass, nor the noble and learned Baroness, Lady Butler-Sloss, is here, for they both highlighted that, under the scheme in the Bill, the people who will be going through the checks—the co-ordinating doctor and the independent doctor—will have to have opted in to specialist training. To some extent, they will be specialists themselves in assisted dying.

If one wants to give as much help as possible to the person who wants an assisted death, it must be better that the person providing the assistance can work within the team that is already providing care. It does not mean that they should be in any way pressing for a particular result. But, if we introduce assisted dying, and we want somebody to do the assessment and give the assistance, we are probably going to have ask somebody with some experience. We do not want to force the patient into an over-complex, entirely separate process.

I note that the noble Lord, Lord Stevens of Birmingham, said that he wants the process kept separate from the NHS, but I am absolutely sure that he does not want the patient to embark on a very complex bureaucratic procedure. He has given reasons why he wants it kept separate from the NHS. As sponsor of the Bill, whether it is precisely separate or not is, for me, not the key question; the key question is whether, if a patient wants an assisted death, there is a practical and safe way of doing it that does not place an undue burden on them.

The proposal from the noble Baroness, Lady Finlay of Llandaff, is overengineered and much too separate from the care of the patient. It leaves out so many aspects. In particular, the drafting of her proposal does not indicate what her seven-person panel has to be satisfied of. The idea that seven people have to be satisfied is, in my respectful submission, much too onerous. Having two specialist doctors and a panel of three examining the case is, with respect, a much better proposal. I have thought very carefully about the noble Baroness’s proposal, but I have to say that the proposal in the Bill is so much better, so much more workable and so much more focused on the patient.

[Lord Harper (Con)]

My Lords—

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[Lord Falconer of Thoroton (Lab)]

Yes, and I cannot imagine a situation, in particular because it is specifically required under the Bill, in which the co-ordinating doctor does not raise the question of what palliative care the patient has had and what is available. Indeed, the Bill requires him or her to do that. Whether the co-ordinating doctor should then provide that information to the voluntary assisted dying commissioner is a matter for the commissioner, as it is up to him or her to decide what information to collect. In principle, it seems a good thing, but the noble Lord has referred to vastly bigger issues that we might need to consider, not in the context of the assisted dying Bill but in relation to how proper information is available about the availability of palliative care. We are all supportive of that.

[Lord Harper (Con)]

I wanted to ask the noble and learned Lord, on his comments about the contribution from the noble Lord, Lord Stevens, about the role of the NHS. As noble Lords know, that this is to be provided by the NHS is not set out in the Bill. It is allowed for, and there are powers to amend the founding principle of the NHS to make it possible, but I had understood and Ministers indicated that, if this legislation were passed, this would be done by the NHS.

The noble and learned Lord said that this question is not of enormous importance to him; it is more about the process, which comes back to the point that the noble Baroness, Lady Jay, made about it being workable. However, I should like the noble and learned Lord just to set out his view about where assisted suicide should be provided, because the question about whether it will be provided by the NHS or not is really important. Whatever view the noble and learned Lord takes, the Committee deserves to know which of those two scenarios it is, before it makes a decision on whether it wants to support the Bill.

[Lord Falconer of Thoroton (Lab)]

When I said that I am really focused on how to provide a proper assisted death and that that is not a technical question about whether the NHS will provide it, I did not mean to say that it is not important for this issue to be resolved. If I did, I misspoke, but please do not read me as saying that. That is an issue on the way to the Bill providing a compassionate and workable way of providing an assisted death to those who want it.

As to the second part of the question asked by the noble Lord, Lord Harper, about my view in relation to it, it is that it is ultimately for the Secretary of State for Health to decide how it is provided. The power is given to the Secretary of State to decide that in Clause 41, with the amendments that I have put down in relation to it. It gives him power to commission it himself or through a variety of other bodies. That might involve some body other than the NHS providing it. Ultimately, it is for the Secretary of State to decide how that is done. I think I have said enough on the scheme proposed by the noble Baroness, Lady Finlay.

I will go on to substances. There is a range of amendments in relation to substances. We shall come back to substances in relation to Clauses 27 and 37. They are in this group because they relate in part to the scheme proposed by the noble Baroness, Lady Finlay. She proposes designated pharmacies so that only particular pharmacies can do it. It is again—this is the wording of the Bill—for the Secretary of State to decide how substances are to be selected, how drugs and devices are to be approved, and then how they are to be dealt with. Subject to my amendments, which give more limitation to Clauses 27 and 37, I think the right principle in relation to that is that it is for the Secretary of State to decide how properly to regulate and choose the substances, and he or she is to do it only after taking proper advice.

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[Lord Falconer of Thoroton (Lab)]

I completely understand what the noble Baroness is saying. Suppose you cannot find a doctor with that information about you—the noble Baroness, Lady Cass, is not talking about the sorts of cases that many noble Lords were talking about, where, by raising it, you are leading to a situation where somebody might be persuaded when they otherwise would not—the answer would be that you would have to consent to all your records being given to a doctor with whom you could have the conversation.

Noble Lords should remember that Clause 5(6) says:

“A registered medical practitioner who is unwilling or unable to conduct the preliminary discussion mentioned under subsection (3) is not required to refer the person to another medical practitioner but must ensure that the person is directed to where they can obtain information and have the preliminary discussion”.


So you can get assistance from a doctor who is not willing to have the discussion. The noble Baroness is absolutely right that, in order to have the discussion, the doctor has to have all the information I referred to. If no doctor in possession of that is willing then you will have to consent to it being given to somebody else—and a patient can consent to their records being given to another doctor.

I turn to the position for those with a disability and, in particular, will deal with the point so powerfully raised by the noble Baroness, Lady Monckton. My Amendment 548A would require that anybody providing a relevant activity under the Bill—new subsection (8) defines “relevant activity” as including “conducting a preliminary discussion”—must not carry out that relevant activity unless the person seeking assistance has an “independent advocate”.

The amendment says that

“‘qualifying person’ means … a person with a mental disorder (as defined by section 1(2) of the Mental Health Act 1983) … a person who (in the absence of support) would experience substantial difficulty in doing one or more of the following … understanding relevant information … retaining that information … using or weighing that information as part of the process of making relevant decisions, or … communicating their views, wishes or feelings”.

Where there is to be a preliminary discussion, the person has to be accompanied by an independent advocate, unless—this is in new subsection (3) to be inserted by the amendment—the person

“seeking assistance informs the relevant person that they do not want an independent advocate, or … where the relevant activity is conducting a preliminary discussion, the person seeking assistance informs the relevant person that they are content for the preliminary discussion to be conducted without them having an independent advocate”.

What the sponsor of the Bill is aiming at there is as follows. If there is any question about one’s ability to process information—what the noble Baroness, Lady Monckton, said about the suggestibility of people with Down syndrome is incredibly resonant—I would envisage the position to be that you have to have an independent advocate but you may not need to have one if it is known to the doctor, or if it becomes apparent, that a family member would be adequate. That would be a reason for not having an independent advocate. But, if there is no family member—for example, if the person suffering from a disability has no parents, siblings or whatever—there has to be an independent advocate.

It may be that the area I should focus on in the amendment on independent advocates is this: you can say no to the need for an independent advocate, maybe because you have nobody else, but is that too risky? I need to consider that, given the point on suggestibility raised by the noble Baroness, Lady Monckton, and Mr Ross of the Down syndrome advisory policy group, whom I have discussed that with.

The points made about people with a learning disability are, I hope, addressed in my amendments on an independent advocate. Ultimately, where there may be no family, the independent advocate has to be the rock-bottom protection.

I move on from that to children. I remind noble Lords that, as the noble Baroness, Lady Coffey, made clear, Clause 6 says:

“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”.


It cannot be raised, and I completely stand by that. What happens if it or something like it is raised by a person who is under 18? I found what the noble Baroness, Lady Finlay, said, to be resonant and insightful. You have to deal with it in a sensible way. You cannot just say, “I’m afraid I can’t talk about that. That’s the end of it”. You have to treat the person with a degree of maturity.

The noble Baroness, Lady Finlay, supported Amendment 211, in the name of the noble Lord, Lord Rook, which says:

“If a person under the age of 18 raises the subject of the provision of assistance under this Act, the medical practitioner must refuse to discuss the subject and shall inform the person that such assistance is not available to individuals under the age of 18”.


I am sure that the medical practitioner should say that it is not available to persons under the age of 18, but I am not sure that it would be wise for the Bill to prescribe that no further discussion is appropriate—particularly for 17 year-olds, who are often quite perceptive. The idea that you cannot have any discussion about this is just not practical or sensible and it would drive people to other sources, which may be more dangerous.

[Lord Harper (Con)]

I will press the noble and learned Lord on that point. The ability for medical professionals to discuss this with patients is prescribed in the first part of Clause 5, but only

“in accordance with this Act”.

If you were a medical professional and a child raised this with you, and you started discussing it, would you not be obliged, under your legal and professional suicide prevention duties to that child, to take steps to protect them? Under the Bill, they would not be eligible to have an assisted suicide. I do not understand this—and the noble and learned Lord has not answered my question about what happens with adults—but if a child goes to a medical professional and starts suggesting that they want to end their life, that medical professional is under a clear duty to take steps to protect the life of that child and even to take steps to force that to be the case. Unless I am missing something, nothing in the Bill will change the legal and professional duties on that medical professional.

[Lord Falconer of Thoroton (Lab)]

The noble Lord is right. The point I was making was that, if it is raised, it is not sensible to just close down the discussion altogether. There has to be an informed discussion, which is completely consistent with the duties that the noble Lord referred to. The idea that there cannot be any discussion about it, which is what I think the amendment in the name of the noble Lord, Lord Rook, says, is, in my submission, neither practical nor wise. It is for the doctor to decide how to deal with it, of course in the context that the noble Lord mentioned.

Finally, if the Bill passes, Parliament will have decided that the option of an assisted death for those who are terminally ill is an appropriate option. It may well have come to that conclusion because it thinks that it is a compassionate option to give people, as has occurred in so many other countries in the world. Once Parliament has said that that is the position, those people who are in a position to access assisted dying should be given appropriate assistance to do so. That is why, in my view, it is perfectly acceptable for it to be discussed by doctors as an option for people who are terminally ill, because they will look to those who are caring for them for assistance to determine how their life ends. I am not sure whether the noble Lord, Lord Moylan, was saying this, but I do not believe that adopting that option is morally abhorrent.

[Lord Harper (Con)]

I will press the noble and learned Lord because I genuinely want to understand what is going to happen. This is quite a big deal for the health service and other professionals in this area. When, under the Suicide Act, which the Bill amends, somebody trying to take their own life stopped being a criminal offence, we did not suddenly say that we thought that was an acceptable thing for them to do; we recognised that making it a criminal offence did not make a lot of sense. Therefore, just because we make assisted suicide lawful—getting assistance to take your own life—in itself that does not change the suicide prevention duties.

I want to understand, if the Bill were to become law, what steps the Government would have to take on the legal duties that medical professionals have under the suicide prevention duty and their professional duties; otherwise, I do not think we are being very consistent here. I do not want medical professionals, who we are asking to do this work, to be conflicted or to think they are at risk. Organisations such as the Medical Defence Union think we are in great danger of putting those medical professionals in that invidious position, and the noble and learned Lord has not really answered my question satisfactorily—or certainly not to my satisfaction.

[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.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Harper and Lord Falconer of Thoroton

Committee stage
Friday 27th February 2026 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

Thirdly, I join with everybody in the Committee in deprecating vicious attacks on the noble Lord, Lord Sandhurst, and the noble Baroness, Lady Finlay. Any one of us who have been involved in this get vicious attacks outside. I agree with the noble Baroness, Lady Fox, when she says there is a slightly testy atmosphere from time to time in here. The best that we can do to try and fight off those attacks is to be as good-natured, funny and warm as we normally are. I am looking forward to the noble Lord, Lord Deben, being warm and funny again.

Fourthly, my Amendment 131A, which the noble Lord, Lord Harper, mentioned, would add that the Prime Minister is to consult the Welsh Ministers before making the appointment. I hope that nobody objects to that; it is what the Welsh Senedd effectively agreed by passing the LCM. When we come to that amendment, I will move it, as I detect no objections.

Finally, I am afraid I will not provide the noble Lord, Lord Moore of Etchingham, with any assistance in relation to the way he conducts himself in the Committee. He always conducts himself, if I may say so, with impeccable manners and courtesy. It is for each one of us to determine what is appropriate and what is not.

I will deal with the amendments quite quickly. They are all to deal with the voluntary assisted dying commissioner provided for in Clause 4. The voluntary assisted dying commissioner will be appointed by the Prime Minister. As my noble friend Lady Levitt, the Minister, has indicated, as long as that stays in, then it will be subject to an open appointment procedure involving an assessment panel.

The idea of the noble Lord, Lord Beith, is perfectly commendable: should a Select Committee look at the appointment? The way that would work in practice is that it would be for the Cabinet Office and the individual Select Committee to agree whether the appointment should be subject to a Select Committee procedure. I would be in favour of it. I do not think it is appropriate to put it into the Bill, but I can see real merit in it. Iwould not only have no objection to it, but I think it is a good idea.

[Lord Harper (Con)]

Given that the noble and learned Lord thinks it is a good idea and that part of the reason—I think the noble Lord, Lord Deben, touched on this—many of us have concerns is that so much of the detail of implementing this is not set out but left for decisions, what is his objection and rationale for not coming forward with an amendment and putting in the Bill so that it has to be done by a pre-appointment hearing rather than leaving it to a decision?

[Lord Falconer of Thoroton (Lab)]

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

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

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

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

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

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[Lord Falconer of Thoroton (Lab)]

This group concerns the question of funding. First, the noble Lord, Lord Moylan, raised the question: should the people who benefit from this have to pay for it? Secondly, the amendments from the noble Baroness, Lady Fraser, raised the question of whether it should be free to the patient. Could it be provided by private providers? Separately, there were questions along the lines of: will this change the nature of the relationship between the doctor and the patient? Finally, there were questions over whether this might lead somebody to urge people to take an assisted death.

I start with the provisions of the Bill at the moment, which, subject to the amendments to Clause 41 that I propose, require that the integrated care board, or NHS England or the Secretary of State, commission the services. A separate provision, in Amendment 753A, makes provision that, in practice, they have to be free for the person getting them.

The principle that underlies that approach—my noble friend Lady Levitt is right and this is the choice that the Bill makes—is that it will be available free to somebody who wants it and who satisfies the conditions. The reason for that is that we do not want to create a two-tier system where you can have an assisted death only if you can afford to pay for it.

In evidence to the Commons Public Bill Committee, Dr Michael Mulholland, the honorary secretary of the Royal College of GPs, said:

“Whether it occurs in the NHS is not our decision, but we would be very concerned about health inequalities creeping into any part of the health service … If the Bill comes through, we will want to make sure that there is not a differential in who is able to access it”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 30/1/25; col. 278.]


The amendments of the noble Baroness, Lady Fraser, do not affect that. The amendments of the noble Lord, Lord Moylan, do, and it is for that reason that I oppose them.

I will first deal with the amendments of the noble Baroness, Lady Fraser, which would restrict the model that could be used to private providers only—albeit that she is not saying that it should not be free. I agree with what my noble friend Lady Levitt has said, to the effect that the way it is delivered should not be restricted. I would therefore not be in favour of the amendments of the noble Baroness, Lady Fraser, in that respect.

[Lord Harper (Con)]

Does the noble and learned Lord not see that the argument that he has just made in favour of having a fully funded assisted suicide service is exactly the mirror of the argument that I made on palliative care? The argument from the quotation that he gave is exactly the argument that I made. If you fully fund this proposal but you do not fully fund palliative care and make that universally available at high quality, you have an inequality where wealthier people can get palliative care and poorer people cannot. On previous occasions, the noble and learned Lord has made it quite clear that he is comfortable with those being reasons for people seeking an assisted death. I do not think that they are. You have to fund both services on an equal basis. Does he agree?

[Lord Falconer of Thoroton (Lab)]

The impact assessment suggests that in year 10, assuming the highest possible cost, it would cost £37 million in total to do assisted dying. This is not by reference to any savings and it includes not just the health elements but also the panel and the assisted dying commissioner. It is plain that palliative care should get as much funding as possible. It is patchy throughout the country and it needs more funding. For me, it is not right to delay the option of assisted dying, particularly when the amount of money that we are talking about to fund assisted dying is so much less than that amount of money, which I would fully support being provided as much as possible. I understand what the noble Lord, Lord Harper, is saying. I am fully behind him if he is saying, “Let’s all put our backs into getting as much money as possible for palliative care”. But I do not accept the argument that the inadequacy in some parts of the country of palliative care is a reason for delaying the assisted dying Bill.

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[Lord Harper (Con)]

That is very helpful. It enables me to make this point, because this is where we have a disagreement. It gives the sponsor of the Bill the opportunity to set out why the Bill is drafted as it is. I will set out why I think my noble friend’s amendment is broadly right, but perhaps there is a comparison with what we already do in similar cases. That may give the noble Lord, Lord Carlile, the opportunity—he may not wish to say so—for another “told you so” moment, as it is a judicial comparison.

The presumption in the Bill is that panels will do the referrals in public. There is a “subject to” on that: the chair of the panel can decide to do it in private if they feel that is appropriate. I accept that there is a balance to strike because, for obvious reasons, these panels are making decisions about personal, private matters. It is also right that there is some transparency. My noble friend Lord Jackson’s amendment would give quite a big window, 28 days, to publish the notice of the panel meeting. It would also include the name of the person.

The comparison I looked at, which I thought was a reasonable one, was what the Court of Protection does. It makes decision about sensitive financial and welfare matters. It used to be the case that the Court of Protection’s presumption was to sit in private and not hear cases in public. That has changed over time. The presumption now is that cases are heard in public. Again, my understanding is that there is the ability for the judge presiding on those cases to decide for them to be in private if that is felt necessary. Even when they are in private, I understand, members of the public can make applications to go and listen to those cases. I think that is all right and proper. That appears, I presume, to be where—the noble and learned Lord, Lord Falconer, is nodding.

[Lord Falconer of Thoroton (Lab)]

This is an important issue. Let me say what I think the purpose of this is, so that it can be properly debated. The norm for the panel—the noble Lord, Lord Harper, is right—is to sit in public, but it is such a thing that it should be determined by the patient. If the patient says that he or she wants it in private, and they very regularly will, the chair can say, “Okay, it’s in private”. The expectation is that it would normally be in private if the person asks. However, there is still a discretion for the chair. It is not like the Court of Protection where the judge is making a decision in a much wider public interest. The reason it is drafted like this is that there needs to be some transparency but, if the person wants it in private, they should generally be entitled to that because it is so personal.

[Lord Harper (Con)]

That is helpful in one sense because it is helpful to have fleshed out the noble and learned Lord’s intention. It is not helpful in the sense that he has made the Bill less attractive to me than I thought it was. I thought the presumption was more that it would be in public.

[Lord Falconer of Thoroton (Lab)]

It is very important that the noble Lord knows.

[Lord Harper (Con)]

I do. The reason why I partly agree with my noble friend Lord Jackson is that I had a look at what the Court of Protection does in terms of publicity—the bit that the noble Baroness, Lady Hayter, objected to. It publishes hearings in advance—not 28 days—but it does not publish the full name of the individual. It publishes initials and what the case is about: the broad category of the decision. That strikes me as quite a good balance, which provides transparency but maybe avoids people coming to “watch a spectacle”, to quote the concern of the noble Baroness, Lady Hayter.

However, there is some necessity for it to be in public. The reason for that is also set out in the Bill, which says the panels

“must hear from, and may question, the co-ordinating doctor … must (subject to subsection (6)) hear from … the person to whom the referral relates”.

At this point, I agree with the noble Baroness, Lady Berger. That should absolutely be a must; there should not be an exception. If it is the case, as I understand from the appearance of the noble Lord with me on a media programme, that the exception is designed for cases where the person’s medical situation is very severe, they should not necessarily have to come to the panel, but at least one member of the panel should absolutely still have to go and talk to them. It really should not be okay for the panel to authorise somebody to have an assisted suicide without ever having spoken to the person concerned.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Harper and Lord Falconer of Thoroton

Committee stage
Friday 6th February 2026 Lords Chamber

[Lord Harper (Con)]

I deliberately did not intervene on the noble and learned Lord earlier, because he dealt with the point and I thought that we had spent enough time on it. He has now just made it even more confusing. I just want to make sure that I have this right. The Minister appeared to be saying that you could have a set of conditions, none of which was fatal but the combination of them was terminal, and that that would trigger the circumstance. I said that that was not what the Bill said. The noble Lord, Lord Pannick, pointed out that if you had a range of conditions, all of which were fatal, that would count—I do not dispute that at all. The noble and learned Lord seems to be saying that if someone has a condition that is not currently recognised as terminal, they would qualify under the Bill. Did I hear him correctly or have I got that wrong?

[Lord Falconer of Thoroton (Lab)]

The noble Lord has got that wrong. I was saying that, for example, the medical profession could easily recognise that HIV/AIDS is fatal. It would have recognised that at a particular time and that would be a medical diagnosis. The effect of the amendment in the name of the noble Lord, Lord Moylan, would be that you cannot rely on HIV/AIDS as a basis for saying that you have an inevitably progressive illness or disease that cannot be reversed by treatment, which was the position for a long time, unless the state has put it into a list of regulations. I am saying that it should be the doctor’s determination of whether theTo go on with the questions that have been raised, the noble Lord, Lord Moylan, asked what the paragraph under Clause 2(4) means. It means that the fact that you have a disability or a mental disorder that cannot justify a terminal illness does not mean that you cannot nevertheless qualify because you do have a terminal illness that satisfies the requirement of Clause 2(1).

On the question of congenital disorder and Amendment 105, if the position is that you are suffering from a progressive illness or disease that is likely to end your life within six months, I think that you should be entitled to an assisted death. My noble friend Lord Shamash referred to such a condition in relation to his cousin; I am not in favour of excluding a particular category in relation to that.

Everybody in the House has enormous respect for the noble Lord, Lord Shinkwin, and I completely accept the proposition that those of us who are not disabled have to listen very carefully to those who are. It is true that, in the other place, Marie Tidball, who is a Member of Parliament, supported the Bill and was in particular influenced by the fact that amendments were made to it that ensured that a disability group would monitor the performance of the Bill. However, I completely accept the proposition that the noble Lord, Lord Shinkwin, makes that we have to listen as hard as we can because it is not part of our experience. That proposition applies not just to this Bill but to a whole range of Bills.

On two further points, first, a number of noble Lords made the point about developments in medicine. It is true that medicine develops all the time; one needs to keep up with those developments and the doctors making the diagnosis have to have those in mind. But the fact that there are going to be developments in the future does not prevent the position from being that at a particular moment in time—HIV/AIDS is the obvious example—because those developments have not yet occurred, those diseases are going to be fatal. The fact that something may occur in the future does not prevent the judgment from having to be made.

Finally, on Amendments 97 and 98, proposed by the noble Baroness, Lady Grey-Thompson, for understandable reasons she proposes effectively a shift in the wording to be much more respectful of disabled people. I can see no reason why we should not make that amendment.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

First, I detect that the mood of the Committee is that I should put my Amendment 87 into the Bill, but subject to the amendment tabled by the noble and learned Baroness, Lady Scotland, and by the noble Baroness, Lady Berger, so I am minded, unless anybody indicates to the contrary, to let that process go ahead. I accept that, in putting it in, there are those who would like to build on it on Report, but I think we should put it in now.

I will deal very quickly with the other amendments in the group. Amendment 88, tabled by the noble Baroness, Lady Grey-Thompson, would leave out “solely”.

[Lord Harper (Con)]

I completely agree with the noble and learned Lord, and I would be happy for the amendment to be made, but he said that he recognises that there are those who would want to build on it on Report. Can he cover the point I made? Obviously, he will have the support of draftspeople and policy officials from the department to help him craft something. Does he recognise that there is still a gap in dealing with some other eating disorders? Will he bring forward some amendments or will he expect those to come from others?

[Lord Falconer of Thoroton (Lab)]

Two groups of eating disorders were identified. First, the noble Baroness, Lady Finlay of Llandaff, identified people who eat only one particular thing. I myself have experience of fruitarians and the consequences of eating only fruit—it may be very bad. Those who have a limited, particular intake are covered by Amendment 87.

A separate group, the bulimic group, gives rise to different sorts of problems. I will consider the position of bulimics, but I do not want to create any expectation that that would lead me to table any further amendments. It may be that other people will table them in the light of what I have said, in which case I will of course consider them, but I think that might be a slightly different category.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Harper and Lord Falconer of Thoroton

Committee stage
Friday 30th January 2026 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

As a lawyer, going for a presumption is wrong. I think the right thing to do is say something such as the norm is face to face, but there could be circumstances in which you may not do that. You should give maximum flexibility.

[Lord Harper (Con)]

Can I just illustrate, perhaps, to the noble and learned Lord why people are so nervous? In the Commons, at Second Reading and for much of the Committee stage, MPs were told that the panel would have to speak to the patient. Amendments were tabled subsequently—the ones I talked about—which then allowed the panel to accept pre-recorded video and waive hearing from the applicant entirely in those undefined exceptional circumstances. I absolutely accept the argument against a blanket position, but if there was a rebuttable presumption that it should be face to face and some circumstances were set out, which could be developed with case law, from listening to the debate, it seems that that would command widespread support from the Committee and would deal both with people’s concerns and, rightly, the patient-centred approach that the three noble Baronesses set out for noble Lords.

[Lord Falconer of Thoroton (Lab)]

In relation to the noble Lord’s point about the imposition of subsection (6), the Bill currently says that the panel

“must (subject to subsection (6)) hear from, and may question, the person to whom the referral relates”,

so it has to question the person, though not necessarily in person. Subsection (6), which he referred to, says:

“The duty … to hear from the person … does not apply if the panel is of the opinion that there are exceptional circumstances which justify not hearing from that person”.


That was added during Committee, because a Member of the Committee described the circumstances of his own mother, I think. That is why it happened. But I will note what the noble Lord says. I do not think I will go for a presumption, but I hear what he says.

[Lord Harper (Con)]

The noble and learned Lord talked about questioning; this is important, because I think he slightly misspoke. Subsection (5) says:

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


The problem with that is that you lose any ability to ask questions, which is critical. That was added afterwards—after people had heard these concerns—and it went backwards. Will the noble and learned Lord reflect on that? If he is going to table an amendment, I ask him to make sure that it reflects the debate that he has heard this morning in your Lordships’ Committee.

[Lord Falconer of Thoroton (Lab)]

Obviously, you cannot ask questions under subsection (6), so it is exactly the same point. The point being made in subsections (5) and (6) is that the panel recognises that there are circumstances in which questioning is not possible. I do not know what additional point the noble Lord was making.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

I am afraid that I am not the Government. On the issue of risk, my proposal—although I recognise that some people want to go further—sets out a sensible course to reach the aim that everyone wants to reach, which is that the problem does not arise. One will have to look at the extent to which one has to warn against that problem when one sees where the review goes, because the question of what warnings have to be given will have to be addressed only at the point when the review has already reported and any action has been taken on it.

[Lord Harper (Con)]

My Lords, this has been a good debate, and it has raised a very important issue. The noble Lord, Lord Hendy, being a distinguished KC, and my noble friend Lord Blencathra spotted that I had not in my remarks pushed the injuries point. I confess that I am torn on that, because some injuries are effectively caused by employment, like mesothelioma where asbestos ingestion through employment results in an illness, as defined in this Bill already. Of course, there are other injuries that can be received in an employment context, where they would not qualify as an illness but where the outcomes may be very similar. But I do recognise all the issues raised by my noble friend Lord Blencathra, so I am torn on that.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Harper and Lord Falconer of Thoroton

Committee stage
Friday 23rd January 2026 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I think that this is absolutely clear in the Bill. Self-administration is what is required. We are discussing how to deal with complications, including whether or not the patient wants some sort of non-intervention, which is perfectly possible. If it is not specifically agreed, and the patient is suffering in some way, the role of the doctor is to save their life, because the doctor cannot kill. I do not think that there is any doubt about that position in the Bill. I do not think that this is properly covered by the terms of this amendment—I will look at it again—and so I do not think that any further change is required.

[Lord Harper (Con)]

I again apologise for not being a lawyer. I listened to this very carefully. I think there is a big gap here. The noble and learned Lord talked about the doctor, in effect, giving treatment to save the patient’s life. If the patient has expressed a clear and informed wish to die—I think this is the question that the noble Lord, Lord Stevens, asked—does the doctor owe a duty of care then to save the patient’s life? I do not think that that is clear at all. Doctors, I think, are asking what it is they are supposed to do. If they do not do anything and the patient dies and then it is found that they should have done something, that is incredibly serious. Doctors are asking for it to be put beyond doubt what they should do in those circumstances.

[Lord Falconer of Thoroton (Lab)]

First of all, there is absolutely no need to apologise for not being a lawyer; some of my best friends are non-lawyers. Secondly, this very thing was very closely considered, hence the provision in the Bill to say that, if there are complications, let us try to agree in advance what we should do. We will not, I am sure, be able to cover every complication, hence the questions from the noble Baroness, Lady Finlay, and the noble Lord, Lord Stevens. The answer is clear and beyond doubt—hence the reference to the need to address the question of complications—that the doctor should do what the doctor is always obliged to do, which is to save life.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

That was not really an intervention; it was just a statement. I should have said to the noble Baroness, Lady Fox, that, as I said last week, I will make an amendment so that the question of why will be asked, but I do not depart from the proposition that autonomy should be the leading reason for it. We disagree about that, and the House can reject that view on Report, but I am explaining what my position is.

[Lord Harper (Con)]

I want to pick the noble and learned Lord up on the progress that I thought we had made last week, which he has just confirmed a bit, when he accepted that asking the question was valid. The problem is, if the result of asking that question is that nothing changes, it is just cosmetic window dressing. He may not have intended to, but he illustrated beautifully the point of asking the question. If we talk to somebody and it is clear that the reason they do not wish to go on is that they are lonely and they have no one there, we can do something about that. There are organisations and people who would provide that companionship. I see the noble Baroness, Lady Hayter, shaking her head. There are organisations and people who would do something about that.

It comes down to the point I made last week. We are saying that, if your life is terrible and you get a terminal illness diagnosis, under the Bill, you are more likely to want to end your life with assistance than someone whose life is great. That is a terrible thing for us to do. The noble and learned Lord does not agree with me; that is fine. The House will have to make a decision, and I think that the position that we have set out with these amendments would lead to a better Bill and a better society than the one he is setting out. We will keep making that point and attempting to move him to that position.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Harper and Lord Falconer of Thoroton

Committee stage
Friday 16th January 2026 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

“Available” in that context obviously means available in a practical sense for that particular patient. If you live in the western part of England and there is palliative care of a particular sort available in a place you cannot access, that would not be “available”.

My noble friend Lady Merron indicated what the effect of Amendment 28 is, which was again proposed by the noble Baroness, Lady Finlay. The effect is that there are two additional requirements before you are eligible for an assisted death: first, that you are eligible for certain specific benefits available at end of life; and, secondly, that there has been a home visit by a GP to consider it.

Neither of those is appropriate for eligibility requirements for an assisted death. As my noble friend Lady Merron said, you might well not be eligible for particular benefits because, for example, they are means tested and you are above the means. It would be wholly wrong for that to prevent you getting an assisted death if you are otherwise entitled to it. Again, I do not think that the purpose of the noble Baroness, Lady Finlay, advancing that provision was to say, “You’ve got to satisfy these specific requirements”, with all the problems my noble friend Lady Merron indicated.

What I think she was getting at is that you have to be sure that financial circumstance—being short of money—is not a relevant reason for an assisted death. I put forward the Bill on the basis that choice is the key thing. Your financial position might be an element in what makes you reach a decision. From the way that the safeguards are put in the Bill, they are trying to ensure it is your decision, freely made.

[Lord Harper (Con)]

I am slightly incredulous about this, so I am just going to make sure I understand the noble and learned Lord correctly. As we also heard earlier from the noble Baroness, Lady Jay, he is talking about someone’s autonomy. If you are in a financial position where you feel you are unable to live properly because you have no money, and as a result of that you decide you want to end your life, that is not a freely reached decision; that is being done because of your circumstances. Is he really saying that he is okay with poor people ending their lives, with the assistance of others, because they are poor? That is what it sounds like. All we are talking about with these amendments is putting in provisions to make sure that is not the case. That is not paternalistic; it is protecting people. Exactly as my noble friend Lord Deben said, that is what we should be doing in this House.

[Lord Falconer of Thoroton (Lab)]

I am saying that what the Bill does is allow you to make your own decision. I am strongly against saying poor people should not have that choice, which appears to be what the noble Lord, Lord Harper, is saying. The evidence from abroad is that it is people from perhaps more financially secure circumstances who make this sort of choice.

[Lord Harper (Con)]

I am going to come back once more, because the noble and learned Lord suggested why I was saying what I was saying, which is absolutely not the case. What I am saying is that if someone is making the decision because they feel pressured because of their financial circumstances, that is not a free choice; that is a choice that is being forced upon someone by their circumstances. They are not in an equal position to someone with resources. That would be very wrong, and I think people would be horrified that he is suggesting that someone, because of their financial circumstances, should be more likely to end their life than someone else.

[Lord Falconer of Thoroton (Lab)]

I am saying it is their choice.

I will go on to Amendment 31 in the name of the noble Baroness, Lady Ritchie of Downpatrick, referred to by the noble Baroness, Lady Berger, in relation to the issue. The noble Baroness, Lady Berger, is saying on behalf of the noble Baroness, Lady Ritchie of Downpatrick, that it must be their own request for an assisted death. The whole Bill is posited on the proposition that the person making the request has to be doing it as their own free choice. I draw attention in that respect to Clause 1(1)(a),

“has the capacity to make a decision to end their own life”,

then Clause 1(2),

“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”.

Then, if one goes over the page to the conditions, there is Clause 8(1):

“A person who wishes to be provided with assistance … must make a declaration to that effect”.


The only concession made is in Clause 21 on the declaration. Clause 21(1) states:

“This section applies where a person intending to make a first declaration or a second declaration … declares to a proxy that they are unable to sign their own name”.


It allows a proxy to sign their name. The noble Baroness, Lady Berger, and I are both saying that it has to be you who does it, the person who wants it, the patient. My own view, having consulted on this, is that that is absolutely clear under the Bill and that the terms of the amendment would make absolutely no difference to it legally. I make clear that the policy intent that the noble Baroness, Lady Berger, wishes to achieve is exactly the policy intent that has been achieved.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

I am grateful to noble Lords who have contributed to this debate. I will make four quick preliminary points.

First, I join everybody in welcoming back the noble Baroness, Lady Campbell of Surbiton. The noble Baroness, Lady Campbell of Surbiton, and I have been debating this for at least 20 years, or maybe longer. It is very good that she is still with us and doing it in the same way.

Secondly, I mean no disrespect to the noble Baroness, Lady Monckton of Dallington Forest, but I will not deal with the points that she made because in a sense—and I quite understand why—they have nothing to do with these particular amendments, which she acknowledged. However, I am more than happy to talk to her about the process issues and I would welcome a conversation with her.

Thirdly, the noble Baroness, Lady Finlay of Llandaff, asked whether it is a medical procedure and whether it is part of the range of treatments that have to be offered or discussed with the patient. In relation to whether it is a medical procedure, the noble Baroness will know that the Bill provides that the actual provision of assistance has to be given by a doctor. I do not know what the consequences are in relation to either the medical or the legal world, but that is the medical connection.

In relation to whether it has to be raised if it is a possible medical procedure, the answer is unequivocally not, because the Bill specifically provides in Clause 5(1) that:

“No registered medical practitioner is under any duty to raise the subject of the provision of assistance in accordance with this Act with a person”.


So the matter is put completely beyond doubt in the Bill.

I turn to the substance of the amendments, which fall into three categories. The first is the amendment ably moved by the noble Lord, Lord Weir, to the effect that certain motivations, if they exist, should ban or prohibit an assisted death. Secondly, an amendment says that the only circumstances in which you can have an assisted death are when you are acting for your own sake rather than for the benefit of others. The third category is where you are acting for the primary purpose of avoiding physical pain. All the amendments in this group are designed to try to limit it to certain permitted motivations only.

I want to adopt completely the speech of the noble Lord, Lord Markham, who described what the Bill is seeking to do: to give people who are diagnosed as having six months or less to live the choice about how their life ends in those six months. The choice they make may be motivated by a whole range of factors. The pain may be too much. They may not be able to bear the thought of being reliant on their children, not because they see themselves as a burden but because the whole change in the relationship is just unbearable. They may not want to go through that period while they await death and there is nothing else. They may find the whole sense that they are incurring expenditure for somebody else so awful for them that it makes them feel bad and they do not want to go through it.

I go through all those possibilities simply to indicate that the reasons why you may want an assisted death vary from person to person. From my own experience, it is very often what we would regard as pain and suffering that causes it, but what causes distress or unbearability to people is not always, and may not often be, the pain or the suffering; it is the whole circumstances in which they find themselves during that last six months.

There is an incredibly good article by somebody on what their mother, who had all the access to palliative care, said was awful about their circumstances. All the pain relief was there and everybody had come to say goodbye, but then weeks went by when there was nothing but staring at the wall in a period of not quite being able to engage with other people and wanting it to end. Would they qualify if, for example, pain and suffering was the requirement? No pain would be identified. The suffering would come from the unbearability of it.

The Bill is constructed on the basis that the person who has six months or less to live should have the choice. There are ideas to bring in these particular things. Do they feel they are a burden to somebody? Do financial considerations apply? They might well apply because there is only a limited amount of money to go around, so they might contribute. Is the panel or the doctor supposed to parse the precise part that every one of these motivations plays? In my view, that would be a very bad way of constructing the Bill. I am very happy to explain how I got there. I think it is a choice, and pain and suffering will often be the choice. If you are serious about putting the patient first, you have to give them the choice and not be in a position where you are trying to look into a whole range of multiple motivations.

[Lord Harper (Con)]

I am grateful to the noble and learned Lord for once again giving way. Can I just press him on this choice point? Although I do not agree with the Bill, there is an argument to be made for giving people a completely free choice, but does he accept that many people in society have many constraints on their ability to make choices? These amendments are trying to make sure they are making a free choice, not one that has been constrained by their other circumstances. Does the noble and learned Lord accept that it is a problem if someone has all these constraints on them and is not really making a free and unconstrained choice, which many people in this Committee would be able to make? Does he even accept that it is a problem that, although it may be difficult, potentially needs fixing?

[Lord Falconer of Thoroton (Lab)]

It is very difficult and would be inappropriate to try to examine exactly why people make particular choices. Look at the first Amendment 30 proposal:

“not wanting to be a burden on others or on public services”.

Why does the thought that they are going to be a burden on their children become an unbearable thing for some people to go through? They might make that choice because of what has gone on in their lives, but it is totally inappropriate, impossible and wrong in a Bill such as this to say that we have to ask why they are in that position.

The next proposal refers to a mental disorder—

Terminally Ill Adults (End of Life) Bill

Debate between Lord Harper and Lord Falconer of Thoroton

Committee stage
Friday 9th January 2026 Lords Chamber

[Lord Harper (Con)]

That is very good. I am glad that the noble Lord has confirmed that the Minister will respond; I look forward to her doing so.

My final point concerns whether the Bill’s sponsors have carried out the modelling and costings that their proposals will require. Have those been put before this House so that we can make the appropriate decisions?

[Lord Falconer of Thoroton (Lab)]

I am sure that the noble Lord will have read the impact assessment; it is based on the current Bill, which includes the panel, and contains detailed costings for the panel.

[Lord Harper (Con)]

I am aware of that. I want to know whether it will contain detailed costings for the court process. Obviously, I do not know what the noble and learned Lord, Lord Falconer, is going to say, but one of the things discussed yesterday was whether he will accept any of the amendments that have been tabled. The point I am making is that, if he were minded to accept the amendments from the noble Lord, Lord Carlile, which obviously have a cost implication, there is a role for the Government in assessing those costs as well as a role for the sponsors. I am simply asking whether, if the noble and learned Lord were to accept them—he may not, of course—he would also provide the costs to the Committee. At that point, I draw my remarks to a conclusion.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Harper and Lord Falconer of Thoroton

Committee stage
Friday 12th December 2025 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I will just pick up what the noble Lord, Lord Kamall, is saying. I think he is saying that the Act has been updated over the years and that people have taken account of improvements. He is absolutely right; from my own knowledge of the working of the Act, he makes an absolutely valid point.

I repeat what I said earlier—that we need to discuss this. I will deal with the interventions after I have given my response.

First, the noble Baroness, Lady O’Loan, is right in identifying the risks that arise. That is why I think that the noble Baroness, Lady Finlay, is right that we need to build in some form of enhanced protection.

As far as the intervention from the noble Baroness, Lady Berridge, is concerned, this amendment is limited to DoLS under the Mental Capacity Act; it does not include any exercise of the inherent jurisdiction of the courts on somebody whose liberty has been taken away. The noble Baroness is very welcome to come and discuss that with us, and I will give her notice of any meeting that we have.

As far as the noble Lord, Lord Harper, is concerned, how one provides effective protection depends first on the discussions that take place. I would envisage tabling an amendment on this or maybe agreeing that somebody else tables one. I cannot tell noble Lords the extent to which it will involve the Minister having powers, but it is something that we will discuss.

The points that the Minister, my noble friend Lady Merron, made about discrimination relate to people who have had a deprivation of liberty order in the past, or even those who have one now, who will be excluded altogether from the right to assisted dying. The nature of the Mental Capacity Act is that this should be done on a case-by-case basis. I am proposing that we discuss how to provide enhanced protection rather than excluding.

In the light of what I have said, I hope that the noble Baroness, Lady Finlay, and the noble Baroness, Baroness Berger, on behalf of the noble Baroness, Lady Keeley, feel able to withdraw their amendments.

[Lord Harper (Con)]

I agree with the noble Lord, Lord Pannick, that a court is unlikely to interfere with important social and economic policy that has been decided by Parliament. That rather reinforces the point that I made about why it is important that these protections are included in the legislation.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Harper and Lord Falconer of Thoroton

Committee stage
Friday 5th December 2025 Lords Chamber

[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.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Harper and Lord Falconer of Thoroton

Committee stage
Friday 21st November 2025 Lords Chamber

[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.

--- Later in debate ---

[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.

Terminally Ill Adults (End of Life) Bill

Debate between Lord Harper and Lord Falconer of Thoroton

Committee stage
Friday 14th November 2025 Lords Chamber

[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 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.

--- Later in debate ---

[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.