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.