Terminally Ill Adults (End of Life) Bill

Baroness Berridge Excerpts

Friday 12th December 2025 Lords Chamber

[Baroness O’Loan (CB)]

I thank the noble Baroness for that helpful intervention, but we do not know what the outcome of that meeting will be. I think I have the right to make my remarks.

[Baroness Berridge (Con)]

My Lords, I will speak to the amendments in this group. I did not table one in my name about a group of people who are also subject to deprivation of liberty safeguards. I am pleased to hear the noble and learned Lord repeat his offer of a meeting, which was made last Friday. I was disappointed not to receive an invitation to a group meeting to discuss the various groups of vulnerable people who may need additional conditions. Had there been such a meeting, I would not be taking up time today or on the later group, where I had offered to withdraw amendments had a meeting taken place.

There is another group of people under deprivation of liberty safeguards who are not under the Mental Capacity Act. These are young people who are under the High Court jurisdiction of deprivation of liberty safeguards—called High Court DoLS. I thank the President of the Family Division for ensuring that there is research available on this group and the Children’s Commissioner, who has visited very many of them. Those young people are so troubled that their liberty needs to be restricted, but they cannot currently be detained under Section 25 of the Children Act in a secure children’s home. That was for a variety of reasons. One was that we ran out of places, but another was that some of them were in such a situation that they could not even bear a communal secure environment like that.

I did not table an amendment also because under the Children’s Wellbeing and Schools Bill these young people will possibly be brought under the statutory jurisdiction of the Children Act, though it would not be all of them. There were 1,280 applications made last year, and around 90% of them were granted, so this is not, as was originally envisaged, a handful of young people. Are any of those young people also ill? Are noble Lords content that at 18 years and one day old they should have assisted suicide raised with them? Are they also happy that if a child has been under mental health treatment but is also physically ill, at 18 years and one day they come under the jurisdiction of this Bill? The same applies to those detained in a young offender institution. Sadly, due to the Private Member’s Bill process, I do not believe that there has been any consultation, a White Paper or pre-legislative scrutiny to flush out the details and data that we need to properly legislate.

I am grateful to the Children’s Commissioner for attending the Select Committee, but I was surprised that the Public Bill Committee in the House of Commons did not hear from her.

In addition to the issue of those who are 18 years old and one day, some of whom are still under the jurisdiction of the Children’s Commissioner until they are 25 and under the jurisdiction of the local authority, it is not wrong to say that there will be enormous societal change that affects children. I would be grateful to know, whether now or in the meeting that the noble and learned Lord has promised, whether he is aware of this group of children and what meetings he has had to establish how many would be affected at 18 years old, how many are in this group and how they can be protected by additional conditions and safeguards.

[Lord Harper (Con)]

My Lords, the noble and learned Lord, Lord Falconer, gave a very welcome response to the opening speech of the noble Baroness, Lady Finlay. He set out a range of protections that there may be. Once he has had those conversations, if he is persuaded that there need to be some protections, will he be prepared to table his own amendments on Report to put those protections and assurances in the legislation, or will he do what the Delegated Powers Committee referred to as disguise legislation, which is only putting it in codes of practice and guidance?

I think it would be widely agreed that if we are going to have those protections, it is better that they are in the Bill. They then cannot be watered down and can be properly enforced. Could he indicate that to all noble Lords after he has had those conversations with those who are interested? The disadvantage of having private meetings is that you are not able to tell other people. If the noble and learned Lord wants proceedings to go faster and to table his own amendments on Report and prevent the need for other people to do so, can he indicate that, once he has had those conversations, he would be willing bring forward those amendments and put those protections in the legislation. I am sure that would be most welcome. If he could indicate his thinking on that today, that would be of help to the House.

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[Baroness Merron (Lab)]

I hear the noble Lord, but my role today, as I am sure he understands, is to advise your Lordships on the risks as we see them and for noble Lords to decide how they wish to interpret them with regard to these amendments. But I am grateful for the point that the noble Lord makes.

Noble Lords may wish to note that these amendments would lead to different treatments for those detained under the Mental Health Act from those detained under the Mental Capacity Act. Only those detained under the Mental Capacity Act would be excluded from assisted dying. Noble Lords may wish to consider whether this is justifiable, given that the criteria for detention under both Acts are similar. The decision on which Act to use is largely a matter of professional discretion. Operationally, these amendments could also create confusion for practitioners, because they depart from the principle that capacity assessments are decision- and time-specific, so additional guidance and training would be needed.

Finally, as noble Lords will be aware, these amendments have not had technical drafting support from officials, which means that they may not be fully workable, effective or enforceable in the way that they are currently drafted. However, the issues raised are rightly a matter for noble Lords to consider and decide.

[Baroness Berridge (Con)]

I have heard this outline of the Government’s position. Am I correct in understanding that the Government have no position on ensuring that the Bill is safe for vulnerable groups of people?

[Baroness Merron (Lab)]

I would not make that assumption.

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[Lord Moore of Etchingham (Non-Afl)]

I am grateful to the noble Lord. As I said, I will come on to the amendment soon, but I want to emphasise this point because I think that it matters a lot in this debate and will matter in the coming weeks. A particularly virulent article in the Times, written by Nicholas Boles—he was, until recently, an informal adviser to the Prime Minister—put these arguments in a way that was quite inappropriate for the type of discussion on a conscience issue that we are having.

On prisoners, I want very much to pursue the point about autonomy, which is absolutely right. It goes to the heart of this Bill, because the Bill’s supporters are those who give precedence to autonomy over all other things. The people who are more questioning of the Bill do not necessarily do that—at least, they think that there are many qualifications to the right of autonomy.

As the noble Baroness, Lady Fox, pointed out so eloquently, this issue very much applies to prisoners, who have a double loss of autonomy in prisons. First, their autonomy has been taken away from them by the decision of the state, as expressed in the quaint phrase “at His Majesty’s pleasure”; it is not “at the prisoner’s pleasure” but “at His Majesty’s pleasure”, which is an expression of the power of the state and the prisoner’s loss of autonomy. Secondly, prisoners lose autonomy in another way because of their vulnerability and the situation they are in.

The point I wish to add to this argument is to do with the Government, rather than the movers of the Bill, although it affects them, of course. In evidence to the Select Committee, the relevant Minister at the Ministry of Justice, Sarah Sackman, said that, as far as the Government are concerned:

“The policy choice that the option of a voluntary assisted death be extended to those in prison is just that. It is a policy choice on which the Government are neutral”.


I do not understand how the Government can be neutral on a matter that is entirely within their purview, and I would like to hear what the Minister has to say about that.

[Baroness Berridge (Con)]

My Lords, I will speak to Amendments 30A and 119A in my name, which relate to children and young people who are under an EHCP. I offered to withdraw these two amendments in order to shorten proceedings; by putting that on the record, I will shorten the meeting offered by the noble and learned Lord, Lord Falconer, but not necessarily these proceedings.

I am grateful to my noble friend Lady Coffey for spotting a typo in Amendment 119A—ECHP instead of EHCP. Please may we not create any more quangos with that combination of letters?

The Select Committee heard from Dame Rachel de Souza, the Children’s Commissioner for England, about the basic policy reason behind some vulnerable adolescents and those with additional needs being under her jurisdiction until they are 25: they need the extra support to transition into adulthood. Amendment 30A would remove all young people under an EHCP from the Bill; Amendment 119A on this policy ground would mean them falling under the Act, but with additional conditions. Such an issue may be additional subject matter for the promised meeting. Would these be the right conditions, were we to accept Amendment 119A?

The Children’s Commissioner’s jurisdiction also covers anyone under the age of 25 who has ever been in care. She has a specific responsibility for children up to the age of 25 who have an EHCP. I note that, in law, it is not 18 for all purposes. You cannot adopt children until you are 21. So, at the moment, the Bill does not produce a cliff edge at the age of 18.

Some of the young people on EHCPs may lack capacity and are, therefore, outside the scope of the Bill. As the noble Baroness, Lady Hollins—she is no longer in her place—has often said, assessing the capacity of people with learning disabilities is a complex matter. However, many young people are on an EHCP because of other additional needs or considerable childhood traumas; they will have capacity and will, therefore, come under this Bill. It is again relevant to think of them at 18 years and one day old, and with a life-limiting condition. Sadly, due to the lack of the usual pre-legislative processes of consultation, a White Paper and scrutiny, we are without the data on these vulnerable groups showing how many in the EHCP or under High Court DoLS also have life-limiting conditions. That data would give us an idea as to the priority of conditions for different groups.

In the Select Committee, Ken Ross of the Down’s Syndrome Association stated that people with Down’s syndrome cannot always fully comprehend complex decisions and have very suggestible minds. This is why there are additional safeguards in the EHCP, but if they have capacity, they are under the Bill currently without any additional safeguards.

Again, due to the process of the Private Member’s Bill, it is not clear how this legislation sits with other legislation and safeguards. Has the Bill been considered by the Department for Education, which has responsibility for children under the 1989 Act? Has the noble and learned Lord met with those Ministers? For instance, just to give an array of possible problems, in many cases local authorities legally still have a role for those under an EHCP after the age of 18. How will that fit with the processes outlined for assisted dying? Will there be a clash of decision-making from the EHCP special educational needs panel and the TIA panel?

What legal authority does the local authority have on safeguarding grounds to intervene in the panel’s process for a young adult on an EHCP if it disagrees with the assessment by the panel that the young person is making the request for assisted dying due to peer pressure or, as Ken Ross suggested, an enhanced susceptibility to pressure from white coat syndrome for those with Down’s syndrome? Is it mandatory for the TIA panel to get information from the SEND panel? Can the SEND panel appeal the decision to grant assisted dying? It seems not, so the family and the local authority will be left with the expensive and difficult remedy of judicial review.

Has the noble and learned Lord considered the evidence from the British Association of Social Workers? It states that the panel needs the power to do its own safeguarding assessments, or the power to close a case a local authority is seized of under Section 42 of the Care Act 2014. Otherwise, assisted dying could be granted and there could still be an open safeguarding case at the local authority unless the panel has the power to investigate and close it. These issues would have been flagged on a government write-round or during proper pre-legislative scrutiny. I am disappointed at the lack of meetings so far, as we need a proper process to consider the position of many vulnerable 18 year-olds on the day after their 18th birthday.

Bearing in mind Amendment 22, which the noble Baroness, Lady Grey-Thompson, mentioned, I wonder whether she, the noble and learned Lord or the Minister are aware of whether the policy decisions made for pregnant women in other jurisdictions are based on policy alone or on clinical evidence. If there is clinical evidence that drugs can promote and induce labour, is that why other jurisdictions have taken pregnant women out? That is relevant, because I have amendments later in the Bill about warning relatives of complications, especially if there is going to be a person under 18 present while assisted dying is being given.

Finally, on the points raised at the start of the proceedings by the noble and learned Baroness, Lady Butler-Sloss, I did not have the benefit of listening to the “Today” programme, but we are dealing with so many groups of vulnerable people. That is because of the lack of pre-legislative steps that we usually have. Groups would have been consulted and there would have been a White Paper. I have been exchanging optimistic emails with the noble Lord, Lord Carlile, but for me personally it is an open question, bearing in mind the lack of pre-legislative scrutiny, whether the Private Member’s Bill process actually fix that.

I know that the noble and learned Baroness worked with the noble Baroness and that she is very fair-minded, but I have had cause to look at the evidence from the Jersey States Assembly, a small Parliament. It was drawn to our attention in the Select Committee by Alex Ruck Keene KC that some instructions went to 200 pages, so I asked the Library to do some research and the Jersey parliament’s process is gold-plated. Not only that, but its website is much easier to use than parliament.uk and one can look at the process and timetable from 2021. When the States Assembly approved what it was going to do, the Executive—the Minister for Health and Social Affairs—gave drafting instructions to parliamentary counsel. To write a piece of legislation fit for purpose, they ran to 201 pages. We say that we are the mother of Parliaments in the Commonwealth context, but that is the way to legislate. I keep open in my conscience whether this process can fix the problems with the Bill which are such that none of the royal colleges is currently supporting it.

[The Lord Bishop of Gloucester]

My Lords, I speak to Amendment 22 in the name of the noble Baroness, Lady Grey-Thompson, to which I have also added my name. I declare my interest as Anglican Bishop to prisons in England and Wales.

There are many reasons why I believe that assisted dying may not be a fair choice for the general population, as things stand, but today I am shining a spotlight, as has already been said, on the prison population. I do not think that there has been enough attention in the debate so far on how the Bill would function for those in prison. I do not apologise for having spoken about prisons in the previous group, because this Amendment 22 is about excluding prisoners from the Bill, but the previous group of amendments assumed that prisoners would still be in the Bill. Therefore, we still need to look through that lens when we are discussing issues about GPs and medical records.

The prison population is in worse health than the general population. We have heard that. However, the reports from both the Health and Social Care Select Committee in the other place and the Chief Medical Officer paint a more concerning picture than that. Age-related illnesses, dependency and frailty can begin at an earlier age than in the general population. The prison population is ageing faster, and when I am visiting prisons I never cease to be shocked by the number of extremely elderly and frail people in prison. In most places, the prison system is not able to meet their needs properly—and that is not to criticise the prison staff, who are doing their best.

Nacro reported that, in 2019-20, people in prison missed 42% of scheduled hospital appointments. The Health and Social Care Select Committee goes as far as to say that

“so-called natural cause deaths, the highest cause of mortality in prison, too often reflect serious lapses in care”.

As has been said by the noble Lord, Lord Farmer, there is a lack of palliative and end-of-life care in prisons and, although there are some examples of excellent practice, action to improve this is voluntary and not supported by the commissioning of services.

Noble Lords may well say that prisoners should have equal access to care under the law, including assisted dying but, as has already been said, they do not currently have equal access to care. For me, this is not simply about the prison system and healthcare; it is about the perspectives and sense of well-being among those in prison. I will not rehearse everything that has already been said, but will just reiterate that the prison population experience high levels of hopelessness. We have frequently and rightly spoken about IPP prisoners in this House.

Again and again as I visit prisons, I hear about and see evidence of the high levels of self-harm in our prisons; it is particularly high in the female estate. Self-inflicted deaths in prison are predicted to continue to rise disproportionately compared to the general growth of the prison population. We need to be cognisant of the fact that, during the special Select Committee on the Bill, the Royal College of Psychiatrists talked about how a person’s wish to hasten their death can be impacted by what their life is like.

Although compassionate release is an option, it is rarely taken up. Crucially, according to Macmillan Cancer Support’s A Guide for Prisoners at the End of Life, it also requires a three-month prognosis. How does that interact with the Bill?

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[Baroness Merron (Lab)]

It is important I reclarify that that is a policy decision. What I am doing with your Lordships’ Committee is advising on risks, to assist noble Lords to make their decision regarding this policy.

Amendments 30A and 119A, tabled by the noble Baroness, Lady Berridge, would exclude any person with an education, health and care plan from being eligible for an assisted death, except in cases provided for in regulations made by the Secretary of State. As drafted, these amendments could impose unclear and potentially undeliverable legal duties on the Secretary of State and are potentially not aligned with how EHCPs work in practice or in law. The amendments give rise to a number of unresolved operational questions that do not work with other provisions of the Bill and they are not drafted with sufficient specificity. That could lead to confusion for those interpreting the legislation and unintended outcomes.

[Baroness Berridge (Con)]

We are about to have a meeting to outline special additional conditions, so can I clarify that the Minister is not saying that that is not possible and just that the particular conditions outlined in Amendment 119A are not possible?

[Baroness Merron (Lab)]

First, I am referring to the amendments before us. Secondly, I am advising on risk and workability, again for the assistance of your Lordships’ Committee, which, as is correct and proper, will make the decision.

These amendments appear to treat people with EHCPs differently from those who do not have them. This could give rise to potential incompatibility with Article 14 of the ECHR, when read with Article 8, and would require reasonable justification for differential treatment.

Finally, as noble Lords will be aware, the amendments in this group have not had technical drafting support from officials, so the way they are drafted means that they may not be fully workable, effective or enforceable. However, as I have said, the issues raised are rightly a matter for noble Lords to consider and decide.