G7 Summit

Danny Kruger Excerpts

Monday 22nd June 2026 Commons Chamber

[The Deputy Prime Minister]

The G7 was a great act of diplomacy and I commend President Macron for a successful G7 summit. In relation to the terrible geopolitical environment that the right hon. Gentleman describes, the summit was successful in part because President Macron chose to invite India, Kenya, partners in the Gulf and others to talk about the very same issues that I know have dominated much of the right hon. Gentleman’s career.

[Danny Kruger (East Wiltshire) (Reform)]

Some 10 years on from the Brexit referendum, the Government want to align more closely with the European Union, but does the Deputy Prime Minister recognise as a statement of fact that in the sectors from which the growth of the future is coming—life sciences, agritech, defence tech and, most of all, artificial intelligence—the UK far outstrips the EU, and it would not do so if we had spent the past five years in the EU’s regulation regime. Whenever the EU summit happens, does the Deputy Prime Minister agree that we need to maintain absolute sovereignty and regulatory divergence in those vital areas?

[The Deputy Prime Minister]

We must always do what is right for the country. I do not recognise the either/or that the hon. Gentleman is positing. Of course we are global leaders in areas such as AI, digital and tech, but with the EU as our biggest trading partner, it is vital that we continue to work in partnership with it, and I am proud of the Government’s record in that regard.

Oral Answers to Questions

Danny Kruger Excerpts

Tuesday 8th July 2025 Commons Chamber

[Sarah Sackman]

I pay tribute to the legal aid providers across the country who have kept going through this difficult time and who do vital work in the sector. As part of the package of contingency business measures, we have delegated more decision making to providers and we have committed to backdating criminal legal aid applications. I must assure the House that we will turn the systems back on only when we can be sure that they are secure and we can guarantee that we are protecting people’s data.

[Danny Kruger (East Wiltshire) (Con)]

18. What steps she is taking to ensure she can refer Parole Board decisions in cases of serious offenders to the High Court.

[The Parliamentary Under-Secretary of State for Justice (Sir Nicholas Dakin)]

Work to implement the power to refer cases to the High Court is well advanced, and we expect to be able to fully update the House later this year.

[Danny Kruger]

The Secretary of State is declining to take the power to refer to the High Court on unduly lenient Parole Board decisions in cases of manslaughter, like that of Robert Brown, who killed the best friend of my constituent, Hetti Barkworth-Nanton. Will the Minister meet me to discuss this decision and explore how we can ensure that the Secretary of State has all the powers necessary to ensure that violent killers like Brown are not released early?

[Sir Nicholas Dakin]

That was a horrific case. My thoughts remain with Joanna’s family and friends, specifically Diana Parkes and Hetti Barkworth-Nanton, who I met last year, and who the Under-Secretary of State for Justice, my hon. Friend the Member for Pontypridd (Alex Davies-Jones), met this week. The previous Parliament carefully scrutinised the referral power and the offences that should be in scope. I am very happy to meet the hon. Gentleman on this matter.

Terminally Ill Adults (End of Life) Bill (Twenty-eighth sitting)

Danny Kruger Excerpts

Committee stage
Tuesday 25th March 2025 Public Bill Committees

[The Chair]

Would everyone ensure that all electronic devices are turned off or switched to silent mode? Tea and coffee are not allowed in the Committee Room. I remind Members that interventions should be short, and raise points of clarification or questions; they should not be speeches in and of themselves. Members who do wish to give a speech should bob and continue to do so throughout the debate that they wish to speak in, until they are called. When Members say “you”, they are referring to the Chair. “You” should not be used to refer to each other. Debate should come through the Chair.

Clause 32

Secretary of State’s powers to ensure assistance is available

[Danny Kruger (East Wiltshire) (Con)]

I beg to move amendment 525, in clause 32, page 19, line 26, leave out subsection (2).

[The Chair]

With this it will be convenient to discuss the following:

Amendment 537, in clause 32, page 19, line 27, after “assistance” insert

“by a registered charity but not”.

This amendment would limit the provision of an assisted death to charitable providers and not permit provision as part of the National Health Service.

Amendment 528, in clause 32, page 19, line 27, at end insert—

“(2A) Regulations under subsection (1) cannot authorise a body other than a public authority from providing such assistance even if that body is to be contracted by a public authority to do so.”

Amendment 529, in clause 32, page 19, line 28, leave out subsection (3).

Amendment 530, in clause 32, page 19, line 31, at end insert—

“(5) The Secretary of State may not lay a draft statutory instrument before either House of Parliament that makes provision containing (whether alone or with other provision) regulations under subsection (1) unless they also lay before both Houses an impact assessment on such regulations.

(6) The impact assessment under subsection (5) must include an assessment of the impact of such regulations on the workforce of health professionals and on the National Health Service.”

Clause stand part.

Amendment 545, in clause 39, page 23, line 6, leave out subsections (3) to (5) and insert—

“(3) The Secretary of State may not make a statutory instrument containing (whether alone or with other provision) regulations under section 5(3A), 8(6A),30(3), (Voluntary assisted dying services: England) or (Voluntary assisted dying services: Wales) unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(4) Any other statutory instrument made by the Secretary of State containing regulations under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.

(5) The Welsh Ministers may not make a statutory instrument containing regulations under section (Voluntary assisted dying services: Wales) unless a draft of the instrument has been laid before, and approved by a resolution of, Senedd Cymru.”

This amendment brings together the various provisions about the procedure for regulations. It also makes regulations under clauses 5 and 8 about training, qualifications and experience, and regulations under NC36 and NC37, subject to the draft affirmative procedure.

New clause 36—Voluntary assisted dying services: England—

“(1) The Secretary of State must by regulations make provision securing that arrangements are made for the provision of voluntary assisted dying services in England.

(2) In this section ‘commissioned VAD services’ means services provided by virtue of regulations under subsection (1).

(3) The Secretary of State may by regulations make other provision about voluntary assisted dying services in England (whether or not the services are commissioned VAD services).

(4) Regulations under this section may for example provide that specified references in the National Health Service Act 2006 to the health service continued under section 1(1) of that Act include references to commissioned VAD services.

(5) Regulations under this section must provide that section 1(4) of that Act (services to be provided free of charge except where charging expressly provided for) applies in relation to commissioned VAD services.

(6) Regulations under this section may make any provision that could be made by an Act of Parliament; but they may not amend this Act.

(7) In this section ‘voluntary assisted dying services’ means—

(a) services for or in connection with the provision of assistance to a person to end their own life in accordance with this Act, and

(b) any other services provided by health professionals for the purposes of any of sections 4 to 22 except section (Determination by panel of eligibility for assistance).”

This new clause imposes a duty on the Secretary of State to make regulations securing that arrangements are made for the provision of voluntary assisted dying services in England. It also confers a power to make other provision about voluntary assisted dying services in England.

Amendment (a) to new clause 36, after subsection (1) insert—

“(1A) Regulations under subsection (1) cannot authorise the National Health Service in England to provide voluntary assisted dying services.”

Amendment (c) to new clause 36, after subsection (1) insert—

“(1A) Regulations under subsection (1) cannot authorise a body other than a public authority to provide voluntary assisted dying services if that body is to be contracted by a public authority to do so.”

Amendment (b) to new clause 36, leave out subsections (4) and (5) and insert—

“(4) Regulations under subsection (1) may not amend, modify or repeal section 1 of the National Health Service Act 2006.”

Amendment (d) to new clause 36, leave out subsection (6).

Amendment (e) to new clause 36, after subsection (6) insert—

“(6A) The Secretary of State may not lay a draft statutory instrument before either House of Parliament that makes provision containing (whether alone or with other provision) regulations under subsection (1) unless they also lay before both Houses an impact assessment on such regulations.

(6B) The impact assessment under subsection (6A) must include an assessment of the impact of such regulations on the workforce of health professionals and on the National Health Service.”

New clause 37—Voluntary assisted dying services: Wales—

“(1) The Welsh Ministers may by regulations make provision about voluntary assisted dying services in Wales, including provision securing that arrangements are made for the provision of such services.

(2) Regulations under subsection (1) may make any provision that—

(a) could be made by an Act of Senedd Cymru, and

(b) would be within the legislative competence of the Senedd if it were contained in such an Act.

(3) The Secretary of State may by regulations make provision about voluntary assisted dying services in Wales.

(4) Regulations under subsection (3) may make any provision that—

(a) could be made by an Act of Parliament, and

(b) would not be within the legislative competence of the Senedd if it were contained in an Act of the Senedd.

(5) Regulations under this section may not amend this Act.

(6) In this section ‘voluntary assisted dying services’ has the meaning given by section (Voluntary assisted dying services: England).”

This new clause confers a power on the Welsh Ministers to make provision about voluntary assisted dying services in Wales, including provision securing that arrangements are made for the provision of such services. It also confers a power on the Secretary of State to make provision about such services, where the provision would be outside the legislative competence of Senedd Cymru.

[Danny Kruger]

It is very good to serve under your chairmanship, Ms McVey, on what is probably our last day in Committee. I fully expect that we will reject clause 32 in due course, so although I want to move my amendment, I have no intention of pushing it or any of the other amendments in this group to a vote, but I do want to take the opportunity to address the clause and to speak to the amendment in my name.

Clause 32 was always going to be an important one, because it would have allowed the Government to provide money to fund the assistance to die; it would have allowed the Secretary of State to make financial arrangements to secure the provision of assistance under the Bill. What we might have been debating if we were sticking with this clause—I think it is still worth inviting the hon. Member for Spen Valley and people who support the Bill to speak to this point—is that the Bill will require the Government to fund the provision of assisted suicide services, but it makes no provision to fund the supply of palliative care. I think everyone in this Committee recognises the absolute imperative of a properly supported palliative care sector, and I deeply regret that although the Government are supporting a resourcing of this new service, there is no balancing commitment to provide what we have all acknowledged is the essential corollary of any assisted dying service. What is worse, in clause 32 and in new clause 36, which will replace it, we have something different.

Last Wednesday night, just as the Committee rose, the hon. Member for Spen Valley tabled amendment 538, which would remove clause 32 from the Bill. This is the clause that committed the Secretary of State to make the financial commitments—commitments that were debated in principle when the House debated the money resolution on 22 January. Once again, I regret that important undertakings that were made by the Government and by the hon. Lady have, in the course of the debate subsequent to Second Reading and now subsequent to the money resolution, been superseded by further provisions.

Amendment 538 is consequential on two new clauses, one of which is new clause 37, which will allow Welsh Ministers to set up a system to implement the Bill in Wales. This will give very wide powers to Welsh Ministers, including the powers to make provision about the service that would be outside the legislative competence of Welsh Ministers. That is significant. Unlike clause 32 and new clause 36, which will replace it, new clause 37 does not make any reference to the health service in Wales. I think it is worth us teasing out the challenge to the devolution settlement that these new clauses represent; I am sure the right hon. Member for Dwyfor Meirionnydd will speak to that.

I want to speak briefly, but I hope clearly and powerfully, to the essential challenge. Without getting too involved in the party politics, we all talk about “our NHS”, and in a sense it is our NHS: this nation’s great domestic institution, created in the 20th century in response to the shamefully inequitable provision of healthcare that preceded 1946. Labour rightly claims the credit for having introduced the NHS under the Attlee Government and in fact the Liberals also have a good claim to it—it was a Liberal, Beveridge, who first advocated the provision of a national health service—but what is not enough recognised is that, as I am sure my hon. Friends are proud to say, it was a Conservative Health Secretary who first put before the House of Commons a plan for a national health service: Henry Willink, Health Secretary in the wartime coalition Government. Unfortunately, the public voted us out of power in 1945 and it fell to Labour to implement a slightly different plan. Nevertheless, we can all claim some parentage of this great institution, the NHS. That is why it is so significant that in the new clauses we are debating, a fundamental change to the NHS in England is proposed.

The duty on the Secretary of State under the National Health Service Act 1946, as updated in 2006, is to promote

“a comprehensive health service designed to secure improvement in the physical and mental health of the people of England…and the prevention, diagnosis and treatment of illness”—

that is, physical and mental illness. That has been the purpose of the NHS since 1946.

I find it curious that a linguistic sleight of hand is being practised in new clause 36. The new phrase, “voluntary assisted dying services” or “VAD services”, is introduced, and it is used to avoid having to spell out that section 1(1) of the NHS Act 2006 will now include references to “assistance to end” the lives of people in England and Wales—that is the language of the Bill as introduced, in the long title and in nearly every clause up to this point. The explicit language that this is about ending people’s lives is avoided in the new clause. Why? I put it to the Committee that it is a hard thing to do: to take a red pen to Bevan’s legacy, to fundamentally change the NHS from one that is

“designed to secure improvement…in the physical and mental health”

of the people of England and Wales, and dedicated to

“the prevention, diagnosis and treatment of…illness”,

and to add to that founding clause “to end” the lives of terminally ill people.

I will be blunter than the drafters have been. New clause 36 changes the NHS from being the national health service to the national health and assisted suicide service. That is its direct implication. Furthermore, the new clause is also designed not only to alter fundamentally the national health service, but to enable the private sector to be paid from NHS funds to end the lives of terminally ill people—and not only that, but to do so with a Henry VIII power so broad as to enable any changes in the NHS or any law to facilitate that goal.

[Dr Simon Opher (Stroud) (Lab)]

Does the hon. Gentleman accept that end-of-life care is also part of the NHS? That has always been part of the NHS, and it is not promoting health but enabling a good death.

[Danny Kruger]

No, I fundamentally disagree: end-of-life care is healthcare. It is addresses symptoms and conditions, and it is designed in a way that is completely compatible with the founding principle of the NHS, whereas the Bill—I appreciate the honesty of the drafters in recognising this, even if they do not quite spell it out—and its proposal of an assisted suicide service is not compatible with the founding principle of the NHS. That is why adapting that founding subsection as in the original NHS Act is required. Of course I recognise that end-of-life care is healthcare and completely compatible with what the NHS does. I wish it were more part of the NHS—that is another debate. Palliative care should have been more closely integrated into NHS provision, and it still should be.

I want to tease out a tension among the drafters and advocates of the Bill about exactly how the assisted suicide service will be facilitated and provided. We have got a bit closer to it, but some questions remain, which is regrettable when here we are on the very last day of the Committee’s debate. Last month, the hon. Member for Spen Valley told the Committee:

“This is not assisted suicide by the state. The state is not involved.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 11 February 2025; c. 318.]

I am perplexed by that. I think many members of the public would not agree with that analysis of how the Bill has evolved in Committee. If involving the state in the provision of this service was not intended, then that is not the Bill we have.

In contradiction to that, and I think more accurately, the Minister for Care told us that the promoter’s intent—speaking for the hon. Member for Spen Valley—is

“to ensure that the assisted dying service is available as an integral part of the NHS. Officials are working on amendments to later clauses to establish the operating model for her consideration.” —[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 5 March 2025; c. 802.]

That is clearly what has happened, and it is where we are now. However, I am sorry to say that I do not feel that the operating model is now clear. We still do not have an impact assessment, we do not know how the Government envisage it working in practice, and important information is still lacking for the debate today. We do not know the possible impact on general practice or medical specialists, nor how it might impact money that is available for palliative care. I hope the Minister can tell us more today about how he envisages the service being implemented, especially in the light of the British Medical Association conference earlier this month, which supported the motion that

“Assisted dying is not a health activity and it must not take place in NHS or other health facilities”.

That is a principle I agree with.

On 5 March, the hon. Member for Spen Valley said:

“there is no expectation that assisted dying would be set up as a private enterprise or service. It would be delivered within the provision of the NHS.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 5 March 2025; c. 799.]

That now agrees with the Minister—fine, interesting; it is to be an NHS service not to be provided privately. But the new clauses do not rule out private provision, nor any profit making by providers or remuneration of people outside the NHS. Indeed, the new clauses refer to “voluntary assisted dying services”, which suggests the hon. Member for Spen Valley is supportive of services outside those that are NHS commissioned, which will be possible under subsections (1), (3) and (7)(a). That will be in line with comments made by my right hon. Friend the Member for North West Hampshire, who made a very coherent case for private provision of assisted suicide if that is what Parliament chooses to legalise; he said that nothing should prevent someone from opting for private provision. In response, the hon. Member for Spen Valley said:

“This service, like many others, will be delivered through a range of providers”.––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 5 March 2025; c. 800.]

I remain unclear about the extent to which this is an NHS monopoly, as it were, or whether there will be private provision that is privately paid for, or private provision that is publicly paid for. I would be grateful for the hon. Member’s clarification.

Lastly, on the question of profit, in an article in The Times that appeared to have some briefing behind it, there was a suggestion that there would be a cap on the profit of private companies providing the service, limiting them to “making a reasonable profit”. Again, there is nothing in the new clauses about limitations on providers’ profits. If the hon. Member could clarify how she envisages the private provision of the service, I would be grateful.

[Sean Woodcock (Banbury) (Lab)]

It is a pleasure to serve under your chairship, Ms McVey. I rise to speak to amendment (b) to new clause 36, which was tabled by my hon. Friend the Member for Shipley (Anna Dixon). The amendment states:

“Regulations under subsection (1) may not amend, modify or repeal section 1 of the National Health Service Act 2006.”

For clarity, I will read out the relevant part of section 1 of the 2006 Act:

“The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement—

(a)in the physical and mental health of the people of England, and

(b)in the prevention, diagnosis and treatment of physical and mental illness.”

Those core principles have remained the same since the National Health Service Act 1946. As the hon. Member for East Wiltshire stated, in a Britian that was devasted by war, Clement Attlee and Nye Bevan together promised a better future, one where healthcare should be available to all, regardless of wealth. It enshrined a principle that as a society we will care for the ill and we will do that together. No one’s health should be left behind, especially that of the vulnerable.

The NHS stands as the greatest legacy of a Labour Government—despite the input of Opposition parties referred to by the hon. Member for East Wiltshire—and perhaps of any Government since the second world war. The establishment of the NHS lives on in section 1 of the NHS Act. It is why at the height of the pandemic NHS staff courageously put themselves on the frontline to protect us. It is their mission to secure improvement in the physical and mental health of all, free at the point of service. As we consider assisted dying, we must not lose the values at the heart of the NHS.

Section 1 of the 2006 Act has changed little from the corresponding first section of the 1946 Act. It is not just a line in legislation; it has become part of our national story and our national identity, and amendment (b) to new clause 36 is about continuing that. It seeks to preserve the legacy of Attlee and Bevan, and that of Labour Governments committed to the betterment of the people.

Twenty-five senior doctors and pharmacists from Shetland and Orkney spoke of that legacy in their written evidence:

“We note with pride the founding principles of the NHS, with the 1946 National Health Service Act stating, ‘It shall be the duty of the Minister of Health…to promote the establishment in England and Wales of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and Wales and the prevention, diagnosis and treatment of illness.’ We believe that Parliament must reflect the lasting ethos of our founding document.”

There are very few lines in legislation that come to represent an institution in this way. It is a testament to the ideal of those founding principles in section 1 that they guide doctors to this very day. This is the thread that runs through the 1946 Act to the 2006 Act—two Labour Governments, 60 years apart, united by this mission to improve the physical and mental health of the people. This Committee should continue the thread of those principles.

Of course, I understand that previous legislation may need to be amended to provide assisted dying services, and that may include the 2006 Act. New clause 36(4) clarifies that specified references to commission voluntary dying services may be included in that Act. I note with regret that the new clause gives us so little information elsewhere about the use of these powers, which are commonly known as Henry VIII powers or clauses. This is not a term that I was familiar with until very recently. I am sure other Members are much more familiar with it than I am, but on the off-chance that there are one or two Members who need a reminder, I will read Parliament’s own official definition of the term:

“‘Henry VIII clauses’ are clauses in a bill that enable ministers to amend or repeal provisions in an Act of Parliament using secondary legislation, which is subject to varying degrees of parliamentary scrutiny.”

Helpfully, it adds:

“The expression is a reference to King Henry VIII’s supposed preference for legislating directly by proclamation rather than through Parliament.”

I accept that it might be rather odd to talk about Henry VIII in this debate, but we should not let that distract us from the serious question of this new clause, which could result in a significant transfer of power from Members of this House to the Secretary of State, and it is not clear what that power will be used for.

The Hansard Society has noted that there is little indication about what role or nature these powers will take, saying:

“A key principle that the House of Lords Constitution Committee has applied to delegated powers is that they ‘should not be framed in such a way that gives little indication of how they should be used.’ The Delegated Powers and Regulatory Reform Committee’s guidance to Departments states that the Delegated Powers Memorandum should set out how it is proposed that a power should be exercised.”

I would be grateful if my hon. Friend the Member for Spen Valley and Ministers could provide clarity on those questions. New clause 36(1) does not specify that voluntary assisted dying be provided on the NHS, but subsection (4) allows for the National Health Service Act 2006 to be amended. What is the intention of these powers? What will the structure of the voluntary assisted dying service be? How will it be funded and who will be responsible for the provision of the services? The answer to those questions will inform which legislation needs to be amended, and that information should be in the Bill.

To be clear, as I have said, I accept that changes to previous legislation may be required. However, the provision of assisted dying should not amend the foundational principles of the national health service. It should not break with the legacy of Attlee, of Bevan and of Labour. That is why I support amendment (b) to new clause 36.

--- Later in debate ---

[Sarah Olney (Richmond Park) (LD)]

It is a pleasure to serve under your chairmanship, Ms McVey.

In Richmond Park, a Henry VIII power has traditionally meant the right of the monarch to hunt the deer in the large open space that gives my constituency its name—something that I am sorry to say he has in common with the dog of the hon. Member for East Wiltshire—

[Danny Kruger]

I didn’t know it was illegal. [Laughter.]

[Sarah Olney]

He paid a hefty fine, I think.

The efforts of Henry VIII’s descendants to try to enclose the park and maintain the powers for the exclusive benefit of the royal family were defeated by a popular and somewhat genteel uprising of the residents of Richmond. I stand here today as the Member for Richmond Park to do a similar job: to assert the rights of the House of Commons and the Houses of Parliament to determine what legislation is, and not to allow it to be delegated under Henry VIII powers.

The normal approach is that legislation made by Ministers is delegated legislation, and such legislation is therefore of subsidiary character to primary legislation. However, there is a type of power, known as a Henry VIII power, that gives Ministers the power to amend even primary legislation. The glossary on Parliament’s website says:

“The expression is a reference to King Henry VIII’s supposed preference for legislating directly by proclamation rather than through Parliament.”

We may in the course of time start to refer to them as President Trump powers—who knows?—but that is the precedent we act on.

The Hansard Society, a non-partisan organisation that is neutral on assisted dying, issued a report that was critical of the power in the Bill. It said this:

“little can be deduced about how it is thought this power will be used in practice, beyond the fact that it may, in particular, be used to enable the provision of assisted deaths through the National Health Service.

But as the DPRRC”—

the Delegated Powers and Regulatory Reform Committee—

“has previously stated, where a power provides that delegated legislation may ‘in particular’ include a specified matter, it implies the legislation may deal with matters beyond that specified matter. The explanatory notes shed little more light, except to clarify that the power could be used to make arrangements for the funding of any provision made by the regulations. Could the regulations thus be used to enable the provision of assistance through the private sector on behalf of the health service in England and in Wales? If the intention is that the regulations will be used only to establish an assisted dying service, either within or separately to the NHS, would they require that the service be free at the point of access to the person requesting assistance?

A key principle that the House of Lords Constitution Committee has applied to delegated powers is that they ‘should not be framed in such a way that gives little indication of how they should be used.’ The DPRRC’s Guidance to Departments states that the Delegated Powers Memorandum should set out how it is proposed that a power should be exercised.

In the current absence of the DPM, MPs may therefore wish to seek clarification from the sponsor of the Bill, Kim Leadbeater, about how she envisages the power being used, and similarly from Ministers how they expect to use this power if it were granted to them.”

The drafter of the Bill, Dame Elizabeth Gardiner, appeared on the Hansard Society podcast and gave some further detail on this power and how it arose:

“In other areas, like, is it going to be delivered through the National Health Service or in some other way, indeed the regulation of any substances that might be involved, in the time available, we didn’t have time to go into all the detail of how those regimes work and to make the provision on the face of the Bill, and so there are regulation making powers there, which enable that provision to be set out in detail, as you say, when the Government has looked at it and decided how it would implement it.”

Given the time available and the constraints of the private Member’s Bill process, the hon. Member for Spen Valley can be forgiven for not including the detail of how assisted dying will be provided on the NHS in the Bill on its introduction, but she and the Government have now had months to think about it. Many people had hoped that clause 32 would be replaced with detailed arrangements for the delivery of the service, to be put on the face of the Bill by way of an amendment, which the Committee could properly scrutinise.

On 5 March, the hon. Member for Spen Valley repeatedly said that it would be made clear by clause 32. When the hon. Member for East Wiltshire called for clarity in the Bill as to how the service would be delivered, the hon. Member for Spen Valley said: “It will be.” The Minister said:

“Officials are working on amendments to later clauses to establish the operating model for her consideration.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 5 March 2025; c. 802.]

This does not appear to have happened, which means Parliament will be limited to a 90-minute debate on this issue when the regulations are eventually made, and such a motion will be unamendable. Surely the issue of how the service is to be delivered is much more important than that and deserves greater scrutiny.

It is disappointing to see new clauses 36 and 37 as the replacement clauses. Ideally, instead of the new clauses we would have had a detailed set of amendments to specify exactly how assisted dying is to be delivered. We do not have that; instead, we have a Henry VIII power that provides even more power than the one in clause 32, because the new one includes a power to modify Acts of Parliament passed subsequent to this legislation.

New clause 36 provides very little guidance on how the Henry VIII power would be exercised. Will assisted dying be provided by the state? If so, would that be on the NHS or through another body? Subsection (1) one does not specify that it must be on the NHS. Subsection (4) gives the power, but not the duty, to change section 1 of the National Health Service Act 2006—a foundational piece of Labour legislation if there ever was one, as the hon. Member for Banbury said—but subsection (5) requires it to be free at the point of use.

The question of whether assisted dying should be provided as part of normal NHS services, or in a parallel service, as requested by both the BMA and the Royal College of General Practitioners, is not answered by new clause 36, although hopefully it can be fleshed out in the debate on the amendments in the name of the hon. Member for East Wiltshire. Alternatively, it would seem that the power can be used to commission private providers to deliver the service on behalf of the state. Instead of deciding between the various models, new clause 36 simply leaves it open. It therefore gives very little indication about how it should be used.

When giving the Gray’s Inn reading at Gresham College last year, Lord Falconer said:

“The wider the power—because there is less material in primary legislation to define how it should be exercised—the greater the reduction in parliamentary scrutiny, but also the harder”—

it would be—

“to identify any legal basis of challenge.”

He went as far as to suggest that such wide Henry VIII powers were “unconstitutional”. Given his great support for the Bill, it would be interesting to hear the response of the hon. Member for Spen Valley and the Minister to Lord Falconer’s remarks.

--- Later in debate ---

[Sarah Olney]

I think I said very clearly to the hon. Member for Stroud that it is not about the doctors. It is about the people who are commissioning them. I absolutely do not believe that about doctors operating in the private sector, who in my experience are often the same doctors as the ones in the NHS. It is about who is commissioning them and who is asking them to carry out this work, and whether those commissioners are motivated by a profit incentive as opposed to the incentive in the NHS to provide the best possible care.

[Danny Kruger]

I entirely agree with the hon. Lady. We are all equally ethical and unethical—the point is that we respond to incentives, and incentives have their effect. Does she agree that there is a further concern? If we had a tariff system, which we probably would, that would by definition create a market, if there was the opportunity for private provision, to earn tariffs—to make more money the more assisted deaths one provides. Furthermore, to the point made by the hon. Member for Stroud that this is all perfectly fine and normal, what about the opportunity to top up the public provision—the tariff one gets from the NHS—with one’s own money, therefore definitely creating the opportunity for some sort of upmarket arrangement through the additional fees and services that might be provided? As the hon. Member for Bexleyheath and Crayford said, we could see expos dedicated to providing the most luxury or glamorous forms of assisted death through private providers with NHS funding.

[Sarah Olney]

That is not a prospect I particularly want to reflect on, but it is worth noting that the particular risk in assisted dying services is that, as we heard in oral evidence from the chief medical officer, it is really hard to define, first, whether an illness is going to be terminal and, secondly, that somebody has only six months to live. There is an element of subjective judgment in assessing who is going to be eligible for assisted dying. Aligning subjective judgment to a profit incentive could create a serious ethical minefield.

I want to state absolutely clearly for the record that I am not questioning the ethics of doctors or the ethical standards of doctors or of any of the bodies that represent them in any way at all. My question is merely about introducing a profit incentive to this issue. As I said, this process could be contrasted with something like the provision of abortion services. Abortion services are clearly available only to pregnant women. The fact that the qualification, as it were, for this service is on a rather more subjective basis creates a risk.

Without this amendment, I am concerned that the Bill commodifies the end-of-life process and pushes what should be a sensitive, careful process towards being a transactional one. It also increases the risk that everything becomes focused on facilitating ending the patient’s life rather than supporting the holistic ethos of the NHS in addressing all the patient’s needs. Without the amendment, I worry that the Bill opens a door to the commodification of death, as the hon. Member for East Wiltshire has so graphically anticipated. What should be a careful, compassionate process could slide into something more transactional: a service that is marketed, packaged and sold.

We need look only to the parallel of care homes to see that danger writ large. In England, social care has been quietly overtaken by for-profit providers. Today, 75% of adult care homes, and over 80% of children’s homes, are run for profit—not by design or explicit policy, but by the slow creep of market forces. The Economics Observatory, drawing on studies such as Patwardhan et al. 2022, Barron and West 2017 and Bach-Mortensen et al. 2022, reveals a stark truth: for-profit care, particularly where private equity is involved, consistently delivers worse outcomes.

Similarly, a 2019 BMJ study found that private providers running NHS-funded services had higher rates of complications in procedures such as hip replacements compared with NHS trusts. The focus on cost efficiency can lead to skimping on follow-up care or using less experienced staff. Why does that happen? Profit-seeking behaviour drives cuts to staff, to resources and to time. Now, if we transpose that to assisted dying, let us imagine the pressures on a private provider to trim costs and the pressures on the quality of assessments. How thoroughly are mental health conditions, or the risk that something else might be going on, explored? How great is the depth of attention to medical records? Is what is relevant to the doctor influenced by the ticking clock? Will they tick a box rather than a safeguard?

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[Sarah Olney]

I thank my hon. Friend for his intervention, but those incentives are not about creating profits that make money for individuals. They are about directing the way that resources are allocated to ensure that a broader range of health outcomes are achieved. When I talk about a profit incentive, it is an entirely different kind of incentive from the one he has just raised.

[Danny Kruger]

This is a very important debate, and my concern is that there is a naive assumption that the innate goodness of doctors will render them impervious to all the incentives in the system. As the hon. Lady suggests, if it were possible, as I think it is under the Bill, for a profit-making organisation—a company—to set itself up to provide an assisted suicide conveyer belt as a pathway through this process, and to earn money publicly or privately according to the volume of the provision it enables, we are setting up incentives that would corrupt the doctors who would be required to sign it off.

I regret that my right hon. Friend the Member for North West Hampshire has such an optimistic view of human nature that he thinks that no doctor would respond to the incentives in the way that is clearly enabled through the Bill. There are other medical professionals—ethical doctors—who do respond to incentives, such as those in the cosmetic surgery industry.

[Dr Opher]

Will the hon. Member give way?

[Danny Kruger]

I would, but actually I am making an intervention. It may appear that I am making a speech, so I will soon sit down, but I would be interested in the hon. Gentleman’s response to the suggestion that even he —the paragon of virtue that he is—might not be entirely resistant to the economic incentives in the system. That is why we have an NHS that explicitly tries to exclude profit making from the provision of healthcare.

[Sarah Olney]

I thank the hon. Member for his intervention, but I do not associate myself with his use of the word “corrupt”; I am absolutely not implying that in any way, and I want to be very clear about that. However, there is a grave risk—even for the most ethical person, if they are offered money to carry out an action that they are inclined to carry out anyway as part of their professional practice—that those incentives drive behaviour that leads to worse outcomes for patients, specifically in relation to assisted dying.

--- Later in debate ---

[Sarah Olney]

But the Bill does not say that. It does not say that the payment to the doctor should not include any consideration of profit. Regarding hip operations, someone would have one only if they needed it. My point is that assisted dying is one of a range of options at the end of life being presented here. The concern is that people motivated by profit would be incentivised to push for assisted dying at the expense of other options for the patient that do not attract the same level of reward. That is the issue. It is not a binary decision in the way that most treatments are.

[Danny Kruger]

In response to the hon. Member for Spen Valley, the scenario that she mentions is exactly the problem in many healthcare systems around the world, particularly in America, where doctors are incentivised to deliver volumes of treatments and procedures that are often not strictly necessary. We do have a problem even in our own system with the over-prescription of certain medical treatments, particularly pharmaceuticals, so incentives do apply. Doctors are subject to them, and we do our best to regulate them out of the system. One of the great advantages of the NHS compared with other healthcare systems is that we manage to prevent the over-provision of services in response to economic incentives. That is a founding principle of the NHS that we are overriding with this process.

[Sarah Olney]

I will conclude my remarks by observing that the only reason that we are looking at contracting out assisted dying services to a private provider is that the country is simply not ready for assisted dying. We know how overstretched and under-resourced our NHS is, and we are looking at cutting corners in the Bill, in our policymaking, in our scrutiny of this legislation, and in how this legislation and the service is delivered.

--- Later in debate ---

[Rebecca Paul (Reigate) (Con)]

It is a pleasure to serve under your chairmanship, Ms McVey. I rise to speak on clause stand part and new clause 36, and in support of amendment 525 and amendment (a) to new clause 36, tabled by my hon. Friend the Member for East Wiltshire. This is a really important debate. The NHS is the greatest achievement of any Labour Government, and maybe even of any Government.

[Danny Kruger]

Steady on!

[Rebecca Paul]

It transformed the quality of life of British citizens at a time of mass unemployment and widespread slums, ensuring free healthcare, in the words of Beveridge, from cradle to grave. The provision of healthcare free at the point of delivery was life-changing and life-prolonging. Although it is far from perfect, we have seen time and time again that as a country we can be very proud of the NHS.

The National Health Service Act 1946 came into effect on 5 July 1948, as a direct consequence of the Beveridge report. Section 1 of the Act states:

“It shall be the duty of the Minister of Health…to promote the establishment in England and Wales of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and Wales and the prevention, diagnosis and treatment of illness”.

It was set up to help people to get better and live healthy lives, and to give hope in situations where otherwise there would be despair. It was lifesaving and life-changing. New clause 36 turns all that on its head. Subsection (4) states that:

“Regulations under this section may for example provide that specified references in the National Health Service Act 2006 to the health service continued under section 1(1) of that Act include references to commissioned VAD services.”

If this new clause passes, the founding principles of the NHS will be monumentally changed to include helping eligible people to commit suicide. That is what it does.

I want to be really clear that it is entirely possible to support assisted dying—to want to ensure that a small group of people, whom palliative care cannot help, have that assisted dying option—but not to support this new clause, which forces provision of the service through the same channels as normal healthcare. Assisted dying is not a medical treatment or a healthcare service and accordingly there should be a degree of separation.

We should be incredibly cautious about incorporating the service into the NHS. It will forever change the relationship between doctor and patient, breed mistrust and fear, discourage vulnerable groups from seeking the healthcare they need and fundamentally violate the Hippocratic oath. Dr Catherine Day, a senior partner of a large GP practice in Coventry, states:

“Trust lies at the heart of the doctor patient relationship. I believe this trust will be shattered if patients consider that their GP…may think that they should end their life and stop being a drain on our NHS.”

Siwan Seaman, a palliative care consultant said:

“How could a terminally ill patient trust a doctor if they know that the doctor was prescribing medication to the patient in the next bed in a bay or cubicle with the intention of ending their life. Letting these assessments take place alongside other NHS services will irreversibly impact on patients’ trust in healthcare professionals and negatively impact our therapeutic relationship with patients as doctors.”

--- Later in debate ---

[Lewis Atkinson]

No, it will not, in the same way that G4S does not suddenly appear and provide treatment through a new cancer service that the Secretary of State decides to commission under specialist powers.

I am afraid that some opponents of the Bill are trying to scaremonger about potential provision as a way of altering the way people voted on Second Reading. A number of amendments clearly deal with whether potential providers should be public sector, voluntary or, indeed, private organisations. I emphasise that the overwhelming majority of GP services in this country are private contractors. It is inconsistent for Members to argue that we should maximise continuity of care and have the best safeguards around coercion and capacity by having someone who has known the individual for a long time, while also arguing that the Secretary of State should not be permitted to commission that individual’s GP to play any role. I challenge opponents on that matter.

[Danny Kruger]

As ever, the hon. Gentleman is speaking very coherently in support of the Bill and the principles behind it. I think he does regard assisted suicide as another form of healthcare that, as he says, should therefore be completely consistent with the normal duties of every medical professional. I would genuinely like him to help me to understand this. Does he envisage the service being provided by bespoke clinics in the NHS? Would established professionals set themselves up with the purpose of delivering it, or would it genuinely just be something that any general practitioner would provide as part of their services? Does he imagine that there will be specialists in the NHS whose sole job, or most of whose job, would be to provide this service?

--- Later in debate ---

[Lewis Atkinson]

The right hon. Gentleman is entirely right. These powers need to provide for that patient-centric nature, in a service that is explicitly commissioned by the Secretary of State, which will vary in different parts of the country, and not just in the provision landscape. The services provided in rural North Northumberland will, by their nature, probably be different from those provided in London, and that is entirely appropriate.

[Danny Kruger]

And yet the irony of this measure is that it is not specific to the patient. Genuine healthcare treats the symptoms and condition of the individual patient. This proposed treatment has nothing to do with the individual symptoms or the condition of the patient; it just kills them. It is totally unrelated to the condition, which is why it is not healthcare.

The hon. Gentleman suggested earlier that the Bill somehow ensures that the provision and the pathway are deliberately fragmented because the second doctor needs to be independent of the first. Does he agree that, with that single exception, it would be perfectly possible for an independent provider to set up to provide for the whole pathway of assisted death, with the single requirement that the co-ordinating doctor, who would manage the whole process from beginning to end, must get a second opinion from outside their organisation to sign the paperwork for the second assessment? With that single exception, the whole process could be managed by an independent, profit-making provider—commissioned by the NHS or otherwise—entirely on its own.

[Lewis Atkinson]

The hon. Gentleman is providing a masterclass in scaremongering. I know he needs Labour votes to switch before Third Reading, but this service must be explicitly commissioned by the Secretary of State, and it is inconceivable that they would commission that in the way that the hon. Gentleman describes. The co-ordinating doctor is of course one person, and they would be involved in the first assessment and the provision of assistance. Whether that is a doctor employed by the NHS or somebody else, it can only be one individual, but there are the other safeguards we have talked about, such as the panel, which the hon. Gentleman has spoken against. It is absolutely appropriate that the Secretary of State has the powers and the duty to commission the service, and that they will do so from range of providers, reflecting the differences.

On the other point that some hon. Members have made about regulation, I remind the Committee that any provider will be regulated not only under this Act, but by the Care Quality Commission, in entirely uniform manner. I am therefore confused by the points made by opponents of the Bill. Some have said there should be no provision of this by the NHS or any public body, some say there should be no provision by charities—including, presumably, local hospices, should they make that decision—while others say there should be no provision by local GP practices to provide continuity of care.

Perhaps those different points reflect different ideologies within the Committee that are deeper than this issue, but they perhaps also reflect the fact that opponents of the Bill simply do not want this service to be provided at all.

--- Later in debate ---

[Danny Kruger]

The hon. Lady is absolutely right. I am not sure that anything in the Bill would preclude a private provider—“Virgin Health” or some such organisation—from providing the whole pathway of the assisted death, including employing, albeit in separate clinics or separate practices, the two doctors who would provide the two assessments. The provider would comply with the Bill, but the doctors might be part of the same organisation even if they work in different practices.

[Naz Shah]

I thank the hon. Member for his intervention. I have observed two things this morning. First, the reality has really hit home. Are we going to look at the amendment regarding local authorities providing the service? Are we excluding private providers? Are we excluding big firms? A new service has to be designed. Will it be two organisations or one? How will the Bill be delivered? We do not even have that before us, and that concerns me deeply.

Terminally Ill Adults (End of Life) Bill (Twenty-seventh sitting)

Danny Kruger Excerpts

Wednesday 19th March 2025 Public Bill Committees

[The Chair]

I remind the Committee that with this we are discussing the following:

Amendment 483, in clause 23, page 15, line 5, after “assistance” insert

“, or in any activity closely related to the provision of assistance,”.

This amendment would widen the range of activities which medical practitioners and other healthcare providers are not under an obligation to provide to include activities closely related to the provision of assistance under the Act.

Amendment 484, in clause 23, page 15, line 8, after “Act” insert

“, or in any activity closely related to the provision of assistance under this Act,”.

Amendment 441, in clause 23, page 15, line 9, at end insert—

“(3) There is no obligation on any care home or hospice regulated by the Care Quality Commission or the Care Inspectorate Wales to permit the provision of assistance under this Act on their premises.”

This amendment prevents there being any obligation on a care home or hospice which is regulated in England or Wales to permit the provision of assistance under the Act on their premises.

Amendment 481, in clause 23, page 15, line 9, at end insert—

“(3) Nothing in subsection (2)—

(a) prevents an employer who has chosen not to participate in the provision of assistance in accordance with this Act from prohibiting their employees from providing such assistance in the course of their employment with that employer, or

(b) prevents an employer from specifying occupational requirements in relation to the provision of assistance in accordance with this Act in accordance with Schedule 9 of the Equality Act when hiring employees.”

This amendment ensures that employees cannot provide assisted dying against the wishes of their employers and that employers can still rely, in appropriate cases, on the occupational requirements of the Equality Act to either require employees to provide or not to provide assisted dying.

New clause 22—No obligation for occupiers and operators of premises—

“(1) Any individual, business, organisation, or association who occupies or operates premises has the right to refuse to permit the self-administration of an approved substance on their premises.

(2) Nothing in subsection (1) confers any right on anyone with an interest in the land but who is not occupying or operating those premises.”

This new clause would mean that the owners or occupiers of premises — but not landlords not currently in occupation — are not obliged to permit the self-administration of approved substances on their premises.

New clause 23—No detriment for care home or hospice not providing assistance—

“(1) No regulated care home or hospice shall be subject to any detriment by a public authority as a result of not—

(a) providing assistance in accordance with this Act, or

(b) permitting such assistance to take place on their premises.

(2) No funding given by a public authority to a regulated care home or hospice can be conditional on that care home or hospice—

(a) providing assistance in accordance with this Act, or

(b) permitting such assistance to take place on their premises.”

This new clause would mean that regulated care homes and hospices cannot be subject to any detriment for not providing or permitting assistance in accordance with this Act, and that their funding cannot be conditional on them providing or permitting such assistance.

Clause stand part.

[Danny Kruger (East Wiltshire) (Con)]

I was just concluding my remarks on the amendment. I will quickly finish responding to the hon. Member for Spen Valley and others, who suggested that it would be improper to deny people living in a care home, hospice setting or other communal environment the right and opportunity to request assisted dying. I was suggesting that that right needs to be tempered by an acknowledgment that they do not live there alone, and that there are also rights, properly held, by the occupier of the premises, the individual’s neighbours and others.

My concern is that, just as suicide itself is contagious, so the practice of assisted suicide will have social ramifications. We fully recognise that, if the Bill is passed, people will have the absolute right to request the service in their own home, but when someone is living among others, that right needs to be tempered by the consideration that the occupier should ultimately decide whether he or she is prepared to allow the practice to take place on his or her premises.

Some hon. Members suggested that, if an institution receives public funding, it would be appropriate for it to be obligated to deliver the service. I am concerned about the implication of that, which might be that institutions that did not wish to provide or facilitate assisted suicide but did receive public money, for instance care homes or hospices, would be at risk of losing that money—essentially being defunded—on the grounds of their conscientious objection to participating in assisted dying. I would be grateful if the hon. Member for Spen Valley or Ministers would confirm that it is not their intention to penalise bodies that do not deliver assisted dying by withdrawing public money.

On the impact on staff, I am grateful to the hon. Lady for acknowledging that we might need to tighten the Bill to ensure that it is clear that people will not be required to participate in any stage of the process of assisted dying, and not just in the actual provision of assistance towards the final act. Nevertheless, my concern is that if we do not give institutions the right to opt out of provision, there will be an exodus of staff who object to being involved in any way with, or working for an institution that facilitates, assisted dying, as has happened in other jurisdictions where assisted suicide is legal.

I point particularly to evidence we heard from Australia. We were told that, in consequence of assisted dying being legalised in Australian states, there was an exodus of workers from the healthcare system—nurses and others—and the social care system. It was therefore no coincidence when one of the Australian witnesses who supports assisted suicide declared breezily that, although there were significant objections among the care workforce to the introduction of assisted dying when the law was first debated, five years later there was overwhelming support for assisted dying among them. Well, that is no surprise, because all the objectors had left, and I am afraid that is what we will see here.

A comparison would be the exodus of care workers that we saw after the last Government mandated covid vaccination. Some 40,000 care workers left their jobs rather than accept compulsory vaccination. If they were prepared to do that on those grounds, I fear we might see a similar phenomenon if we mandate that institutions facilitate assisted dying.

[Lewis Atkinson (Sunderland Central) (Lab)]

May I check that the hon. Member’s understanding is the same as mine—that nothing in the Bill compels an organisation to participate in the way that he describes?

[Danny Kruger]

No, I am afraid I do not concede that. At the moment, it is not apparent from the Bill or the amendments that have been accepted that an organisation would be enabled to decline to facilitate the provision of assisted dying. No organisation will be compelled to do so, but if a resident were to request assisted dying in their care home, my understanding is that the care home would be obliged to facilitate it.

It might well not be the intention behind the Bill, because I know that the hon. Member for Spen Valley and Members who agree with her recognise the importance of a conscience exception; they have been very clear on that, and I am grateful to them. Nevertheless, my concern is that on human rights grounds, as we have heard from the Minister, the likelihood is that there would be a claim on behalf of an applicant against the institution they reside in that assisted suicide must be provided to them in that place. I am afraid the Bill at the moment does not give an adequate exemption to institutions.

[Lewis Atkinson]

Does the hon. Member accept the distinction that I made between an organisation choosing to provide assisted dying services and the instance he outlined of this being done in someone’s home that happens to be a care home? They are entirely different points, and I fear that, particularly with regard to hospices, he is conflating the two.

[Danny Kruger]

I am conflating the two because they are conflated in reality. A care home where somebody lives is a residence, but it is also a community, a facility and a place where professionals work to support that individual. A clear demarcation between their living arrangements and the support they receive from the institution they live in does not exist in reality. That is why they are living there—because that distinction does not apply in their particular case. They require the support and help of the workers in the place where they live.

I am afraid it is not enough simply to say, “This is their home, and they should have exactly the same rights and freedoms as they would have if they were living alone in their own flat or house.” We have to recognise the reality of the situation, which is that they are living in a community, and what happens in the community affects them all. That is the nature of communal living. This is not individualised healthcare in the way that the hon. Gentleman imagines it is, and that is fundamentally our point of difference. This is separate or adjacent to healthcare, and it is delivered, by definition, by somebody else. By virtue of the Bill, it would have a separate regulatory environment to other healthcare treatments. Of necessity, it should have an appropriate legal framework to protect other people who are impacted by assisted death in a communal setting. That is my crucial point: if someone is living in a communal setting, what they do affects their neighbours.

[Jake Richards (Rother Valley) (Lab)]

Does the hon. Gentleman appreciate that, although this is different from the healthcare services we currently have, we have a legal framework that deals with many of these conflicting issues as and when they arise in lots of different circumstances that are not completely adjacent to these?

[Danny Kruger]

I do not know what those might be, but I would be interested to hear. That might well be the case. I am afraid that no hard-and-fast rules can be clearly applied here; or, rather, we have to apply hard-and-fast rules in the knowledge of the grey areas, the exceptions and the situations in which we might feel that the law is unjust in particular cases. We have heard examples of that, such as the evidence about the lady in Australia cited earlier by the hon. Member for Spen Valley. I can well imagine the distress involved if someone suddenly finds themselves in an institution that does not permit an assisted death, but they want one and are in their last days.

The alternative, however, is a different blanket rule. If we were to have a blanket rule that we can do an assisted death anywhere—that is one situation—there would be significant knock-on effects. Serious moral injury would be suffered by other professionals and residents. I recognise that my amendment could lead to someone having to relocate if they want to have an assisted death—I am sorry for that—but I think that we have to draw the line in a way that makes most sense.

[Kit Malthouse (North West Hampshire) (Con)]

It would be interesting, if my hon. Friend’s amendments go through, to see the series of plebiscites taking place in care homes and communal situations across the country as to what the residents do and do not want, presumably by a majority. He asserted that there had been a mass exodus of healthcare workers when VAD came in, but I am struggling to find any evidence to support that claim. In fact, the evidence seems to say that that is not the case. Although there have been some resignations, that has largely been because of pay and conditions, as one might expect.

[Danny Kruger]

My right hon. Friend seems hung up on this suggestion that there needs to be a plebiscite or communal decision making—some kind of citizens’ jury. I am not suggesting that for one moment. In fact, I am sure that I have said explicitly that what I want, and what the amendment would enable, is that the owner or occupier, who would probably be an individual or a board of directors, would decide what happens. If they are a decent, compassionate organisation, they might well consult residents—in fact, I would very much expect that to happen if they are doing their job properly—but I am talking about the importance of communal living; and the fact is that a communal living arrangement has leadership. The residents have signed terms and conditions, in a contract, under which they have agreed to abide by certain rules of the house. My suggestion is that if the charity, company or organisation that is managing a care home wants to stipulate that there shall be no provision of assisted dying in that care home, they should have the right to do so. I hope my right hon. Friend would acknowledge that that is consistent with English property rights.

On my right hon. Friend’s second point, I am grateful to him and he might well be right. I am happy to consult my evidence pack, which I do not have at my fingertips, about the effect on the Australian workforce in consequence of the introduction of assisted dying. My memory is that we heard such evidence, or had it submitted to us in written form—his knowledge of the 500 submissions might be better than mine. Let us check and we will have it out, perhaps on social media; I know how much he enjoys those forums.

Question put, That the amendment be made.

--- Later in debate ---

Under clause 26, coercing or pressuring a person into an assisted death is a criminal offence, and rightly so. There has, however, been much debate on whether undue influence and encouragement are also covered. The Minister advised previously that undue influence is covered, and I seem to recall that encouragement could be covered as well. If that is correct, we would have the sloppy situation in which encouragement could be a criminal offence both under the Bill and under the Suicide Act. It would be really helpful if the Minister set out the position clearly on the point, to make sure that we do not inadvertently end up in that situation. I imagine that best practice is to have only one criminal liability in one Act or the other, if it is appropriate at all.

[Danny Kruger]

It is an honour to follow my hon. Friend the Member for Reigate; I very much agree with the points that she made, and I hope that Ministers will respond. I will try not to repeat her arguments.

The hon. Member for Spen Valley says that clause 24 is, in a sense, the heart of the Bill. I agree. Without the clause the Bill would be ineffective, because the service that we are proposing to legalise would be illegal. We have heard many objections to the term “assisted suicide”, but the necessity of the clause exposes the fact that what is being legalised, at least in part, is assisted suicide. Calling it assisted suicide is therefore not improper; it is simply using the correct terminology, as I believe we should in this place. That is particularly important because the use of the euphemism “assisted dying” masks what this is really about and what the Bill would actually legalise: that somebody could help somebody else to commit suicide.

It is no surprise that the euphemism is deployed, because support for what is called assisted dying is driven in part by a failure to realise what it actually is and what the words mean. I cite a 2024 Nuffield Council on Bioethics survey of the public, which found that 39% of people think that assisted dying means withdrawing life support, 19% think that it means providing people who are dying with drugs that relieve symptoms of pain or suffering, and 13% think that it means providing hospice care, all of which is legal currently and is good medical practice.

[Lewis Atkinson]

The hon. Gentleman says that he is clear that those actions are assisting suicide and that he thinks that they are illegal. Is it right that members of the public, in the instance to which my hon. Friend the Member for Spen Valley referred, be investigated by the police on their return from trips to Switzerland?

[Danny Kruger]

Let me come to the question of investigation by the police in due course, but I am not sure that the hon. Gentleman heard me clearly. I was not talking about offences that I think are rightly criminal; I was talking about offences that are not offences at all. Providing hospice care, helping people to relieve symptoms of pain or suffering and withdrawing life support are all perfectly permitted and legal in our system. The issue is that a significant proportion of the public think that those activities are what assisted dying entails. I do, however, recognise the point and the power of the testimony recited by the hon. Member for Spen Valley, to which I will come on in due course.

I understand that in order to make the Bill effective, an exception must be made to section 2 of the Suicide Act. Section 1 says that someone is allowed to commit suicide; section 2 says that one cannot help somebody else to do so. I agree that such an exception is necessary if we are to pass the Bill, but I cannot follow why clause 24(1) is needed. I will be grateful if the hon. Member for Spen Valley or the Minister can explain which other offences would necessarily be committed by a doctor properly carrying out his or her functions under the Bill. What other offences might be caught that require clause 24(1)?

Clause 18 will forbid a doctor from engaging in euthanasia. One criminal law from which an exemption is not necessary is the law on murder, yet ostensibly subsection (1) has no such limitation. I would be grateful for the Minister’s confirmation that subsection (1) will not afford a defence when the charge is murder. I presume that that is not the intention.

What about manslaughter, and particularly gross negligence manslaughter? Under the Bill, a pharmacist performing the function of prescribing or dispensing the legal drugs would be, to use the wording of amendment 504, “performing” a “function under this Act”. If a pharmacist makes a grossly negligent mistake and mislabels a drug, which is then sent to another patient who takes it and dies, that would quite clearly be gross negligence manslaughter. Can the Minister explain why clause 24(1), as amended by amendment 504, would not allow someone to benefit from an immunity in respect of gross negligence manslaughter? To be clear, I agree that if the pharmacist intentionally mislabelled the drug, he could not be described as

“performing any other function under this Act”,

so he would not have that defence. However, in a case where, in good faith, he had made a fatal and grossly negligent mistake, surely he would have been performing such a function, albeit performing it very badly.

Can the Minister clearly set out the reasoning to explain why there is no chance of such a defence under the clause? Of course the hon. Member for Spen Valley does not intend to exempt from criminal liability a pharmacist acting in that grossly negligent way, but I am trying to make sense of the drafting of the amendment. If there is any criminal offence, other than in the Suicide Act, that requires an exemption, it would be best to say so clearly in the Bill rather than relying on a catch-all term, as subsection (1) does.

I concur with the points made by my hon. Friend the Member for Reigate and will not repeat them, but I do find it interesting that the hon. Member for Spen Valley has chosen to retain the offence of assisting and encouraging suicide. This is because two arguments made by proponents of the Bill lead to the logical conclusion that the offence should either be repealed entirely or limited to self-conduct, as is the case in Switzerland. Let us look at the two arguments in turn.

The first argument relates to autonomy. If an autonomous individual with capacity decides to end their own life and requests the assistance of another person, why should that other person be criminalised? After all, that person is simply helping another person to do something to their own body that the law has not prohibited since 1961, so surely it is a violation of autonomy to criminalise such conduct of assisting in suicide.

Lord Mance, a former justice of the Supreme Court, put the matter as follows on Second Reading of the Meacher Bill in the other place:

“Suicide is decriminalised, yet assisting suicide remains criminal—probably a unique exception to the principle that you can only be an accomplice to an act that is itself criminal.”

It is bizarre that the act is not itself criminal but being an accomplice to it is. Lord Mance went on to say:

“If a person may choose freely to commit suicide, what justifies a refusal to allow them to obtain willing assistance?”—[Official Report, House of Lords, 22 October 2021; Vol. 815, c. 408.]

I believe in the value of a prohibition on assistance, but the logic of the argument from autonomy—that someone should be allowed to request assistance to help them to die—surely obviates the distinction. I do not see why we have kept section 2 at all, and I would be interested in hearing from the supporters of the Bill what the limiting principle is. Why do they think assisted suicide should remain a crime, despite its being a limitation on autonomy, outside the scheme created by the Bill? Why are we simply creating a scheme within the Bill?

The second argument given, which I think relates to the intervention from the hon. Member for Sunderland Central and to the point made by the hon. Member for Spen Valley, is based on the fact that the current law requires people to travel to Switzerland. The argument against the current system comes in three forms. One stresses the toll that it places on families to know that the people who assist have committed a criminal offence and could be investigated by the police, even though the chances of prosecution are remote. I fully recognise and share all the concerns among Members about the terrible distress faced by people who may in any way have assisted their loved one to take their own life.

The second objection to the status quo makes the point about the unfairness that the situation creates. The hon. Member for Liverpool Wavertree (Paula Barker) said on Second Reading:

“I do not want choice to be available only to those who can afford to pay. That is not just or equitable.”—[Official Report, 29 November 2024; Vol. 797, c. 1073.]

The suggestion is that to have to pay to go to Switzerland is a violation of equality.

The third is a constitutional argument. It is said that it is constitutionally improper for the Director of Public Prosecutions to have effectively decriminalised assisted suicide for people who travel to Switzerland. But the point I am trying to make is that under the Bill, anyone helping their relative to travel to Switzerland, or any other country, would still be committing an offence under section 2 of the Suicide Act.

Research from My Death, My Decision, a campaign group pushing for a wider Bill than the current one—it supports the Bill but clearly wants it to go further—has found that 50% of cases going to Dignitas would not be eligible under the Bill. It helps to make my point, which is that I am afraid that if the Bill were passed we would still have stories like the very moving testimony read out by the hon. Member for Spen Valley. In fact, as my hon. Friend the Member for Reigate said, there is a significant likelihood that there would be more prosecutions. If the Bill were enacted, the conclusion of the Crown Prosecution Service and the police might well be that, given the existence of an assisted dying regime within the UK, assisting one’s relative to go to Switzerland should be subject to a greater likelihood of prosecution. That is a legitimate concern.

[Tom Gordon (Harrogate and Knaresborough) (LD)]

The point that the hon. Gentleman is making is actually one that I made yesterday. I appreciate that we are on entirely different sides of the debate, but that is exactly why I was talking about ensuring wider eligibility—the point he makes in relation to My Death, My Decision—and ensuring the provision of assistance for people who might have illnesses such as motor neurone disease. We have had to put a cut-off somewhere, and some people fall outside it, but does he accept that fundamentally this is about making sure that there are safeguards? That is the key point: that we should ensure safeguards. What the hon. Gentleman is talking about is exactly that.

[Danny Kruger]

I am grateful. With great respect to other members of the Committee, I think the hon. Gentleman is the most honest advocate of assisted dying among us, because he genuinely recognises that autonomy demands the widest possible range of eligibility. It might be that other Members feel that we have the balance exactly right. I recognise the force of his argument that if we are going to introduce a new human right, it is very difficult to circumscribe its boundaries. He himself thinks that there should be some boundaries: he proposed an amendment that specified 12 months, and he thinks that only certain people should be able to ask someone else to perform assisted death to them. Nevertheless, he is acknowledging that if we believe in autonomy, the Bill would not satisfy some people.

I think it would be intellectually coherent and more logical for proponents of the Bill to want to repeal section 2 of the Suicide Act, and I do not understand why they are not doing so. We could certainly continue to insist on prohibitions against any form of coercion, persuasion or inducement to take one’s own life, but if somebody is clearly in their right mind and wants to receive assistance to kill themselves, that is the principle of the Bill. It would be neater if we amended the Suicide Act accordingly.

The fact that proponents do not want to do so suggests that they see some value in the law and that they consider that that value trumps concerns about autonomy and the impact of the law on family members of someone who wishes to travel to Switzerland to end their life. I agree that there are such principles—namely, the intrinsic value of life and the protection of the vulnerable—but I do not see why proponents of the Bill consider that such principles trump autonomy when it comes to terminally ill adults in England.

[The Minister of State, Ministry of Justice (Sarah Sackman)]

It is a pleasure to serve under your chairship, Mr Dowd. My remarks, as ever, will focus on the legal and practical impact of the amendments to assist Members in undertaking line-by-line scrutiny. In exercising our duties to ensure that legislation that is passed is legally robust and workable, the Government have worked closely with my hon. Friend the Member for Spen Valley to reflect her intent.

Clause 24, as amended by amendments 504 and 505, will mean that individuals who assist a person to end their life in accordance with the terms of the Bill are not subject to criminal prosecution. Currently, it is a criminal offence under section 2 of the Suicide Act 1961 for a person to do an act that is

“capable of encouraging or assisting the suicide or attempted suicide of another person”

and intended

“to encourage or assist suicide or an attempt at suicide.”

That offence attracts a maximum penalty of 14 years’ imprisonment. Amendment 504 would amend clause 24(1) to ensure that a person is not guilty of an offence—[Interruption.]

--- Later in debate ---

[Sarah Sackman]

I was introducing amendment 504, which amends clause 24(1) to ensure that a person is not guilty of an offence by virtue of providing assistance in accordance with, or performing a function under, the Bill—for example, by undertaking the first or second assessment or providing the approved substance. The effect of the amendment is to ensure that a person is not guilty of an offence by virtue of assisting a person seeking to end their own life in accordance with the Bill. The phrase “in accordance with” the Bill is key. For example, where someone accompanies a person to the appointment at which they will self-administer the substance, the amendment would carve out any criminal liability for the accompanying person.

As originally drafted, the wording would have limited the protection offered by subsection (1) to the far narrower situation of the medical professionals providing assistance under clause 18. The amendment will give effect to the policy intent of the hon. Member for Spen Valley of applying that protection to all those who provide assistance in accordance with, or by performing a function under, the Bill. Subsection (2) clarifies that the clause does not override other ways in which a court may find that a person is not guilty of an offence.

Clause 24(3) inserts proposed new section 2AA into the Suicide Act 1961. As amended by amendment 505, that new section ensures that it is not an offence under the Suicide Act to perform a function under the Bill, or to assist a person seeking to end their own life by doing anything under the Bill. That is for the same reasons that I set out in relation to subsection (1). The new section also provides a defence to the offence of encouraging or assisting suicide, where a person reasonably believes that they were acting in accordance with the Bill, and that they took all reasonable precautions and exercised all due diligence to avoid committing the offence.

Taken as a package, the effect of these amendments is to make the Bill legally workable. To do that, it is necessary to ensure that those who assist a person to use the lawful route are not then subject to criminal liability for doing so. Clause 24 clause, taken together with amendments 504 and 505, gives effect to that.

Let me address some of the issues raised by Opposition Members. There was a question as to whether there is any overlap between offences under the Bill—we will come to some of those offences in due course with clauses 26 and 27—and offences that remain on the statute book under the Suicide Act. The short answer to the question from the hon. Member for Reigate, although I know she has written to my Department, and I will ensure that she receives a full written answer, is that it would remain an offence under the Suicide Act 1961 to encourage suicide, including an assisted death under this Bill.

To the extent that any overlapping offences remain, that is not an unusual approach to drafting in the criminal law. However, the effect of the clause is that it would remain an offence under the 1961 Act to encourage someone to commit suicide. Where a person’s “encouragement”—the hon. Member focused on that term—is such that it amounts to what the courts would understand to be pressure or coercion, that could be an offence under clause 26, which we will come to. As I said, it is not unusual to have a degree of overlap in criminal offences. Again, what someone is charged and prosecuted with falls to the prosecutor, depending on the specific circumstances of the case and what would be most appropriate in that scenario.

I also want to address the scenario that the hon. Member for East Wiltshire posited, about whether a pharmacist who acted in a way that amounted to gross negligence manslaughter would benefit from immunity under clause 24(1) as amended. Again, with the important caveat that it will depend on the particular facts of the case, the offence of gross negligence manslaughter is committed where a death is the result of gross negligence in what would otherwise be a lawful act or omission on the part of the defendant, and where the defendant owes a duty of care to the victim—there are a number of actors within the Bill’s process who owe a duty of care to the person applying for assisted dying.

Let us assume for a moment that, in the hon. Member’s scenario, we do have gross negligence manslaughter on the particular facts; in those circumstances, the Government are content that the pharmacist could not be properly said to be performing a function under the Bill, or in accordance with the Bill, so clause 24(1)—the carve-out from criminal liability—would not apply. I think that that covers most of the questions that were posited earlier.

[Danny Kruger]

It may well be that the Minister has clarified the case sufficiently, but will she explain something for my sake? She is suggesting that the pharmacist inadvertently but negligently caused the death of a patient, having performed the duties under the Bill and believing that they were doing so. Surely, they were performing duties under the Bill, so they would potentially be captured by the carve-out.

[Sarah Sackman]

Again, it would depend on the actual facts. However, if they were attempting to perform duties under the Bill, it is highly unlikely that, in circumstances where the facts establish and meet the threshold of gross negligence manslaughter, they could be said to have carried out those duties in accordance with the Bill. They might have been carrying out duties that they thought were what the Bill prescribed, but if they have done that in such a way that it amounts to gross negligence manslaughter, then clause 24(1) would not apply.

The hon. Gentleman makes the point about what the pharmacist in that scenario believes they are doing; that belief has to be reasonable, and that is a test that our courts are well used to applying. That is why the amendments introduce the belief that someone is acting in accordance with the Bill. It is not enough that they think they are doing it; it has to be a reasonable belief. That is an objective standard.

--- Later in debate ---

[Kim Leadbeater]

The amendments ensure that the exclusion from civil liability applies in relation to persons performing functions under the Bill and persons assisting a person seeking to end their own life in connection with the doing of things under the Bill. Importantly, they also rightly exempt from the exclusion from civil liability things done dishonestly or not in good faith, and any liability arising from negligence.

Proposed new subsection (1) in amendment 501 makes it clear that anyone providing assistance to a person to end their own life in accordance with the Bill will not face civil liability simply for doing so. That is crucial in offering clarity and confidence for healthcare professionals, family members or others who might otherwise hesitate due to fear of being sued for assisting a loved one or patient who wishes to end their life as a result of their terminal illness.

However, although we are providing protection, amendment 501 does not allow for unfettered actions without any accountability. Proposed new subsection (1A) ensures that any actions that are dishonest or done in bad faith are not protected from civil liability. Additionally, it states that breaches of a duty of care, such as negligence, are also not exempt from liability. This provision is a critical safeguard. It ensures that, although we provide legal protection for those acting with compassion and integrity, we also prevent exploitation or irresponsible actions, by making it clear that there is no immunity for actions that are dishonest or negligent. That strikes the right balance between compassionate assistance and legal accountability.

The amendment particularly reassures doctors, nurses, and healthcare workers—those who are most likely to be involved in the process. Often, they are deeply committed to palliative care and to supporting patients through their end of life journey, and the amendment ensures that they will not face legal risk if they provide assistance to eligible individuals under the Bill.

[Danny Kruger]

I rise to speak to clause 25 as a whole. First, though, I welcome the amendments tabled by the hon. Member for Spen Valley, because I recognise that she is attempting to fix a problem with the Bill.

However, I am afraid that my objection remains: the fact is that no other assisted suicide law in the world—including in common law jurisdictions similar to our own, such as Australia or New Zealand—has such a clause. There can be no justification for it. If, in the course of providing assistance under this Bill, a doctor commits a civil wrong, they ought to be liable for it in the usual way.

I am glad the hon. Lady has realised that a total exclusion of civil liability is not justifiable, but her change does not go far enough. Her amendments would preserve civil liability where an act was done dishonestly—not in good faith—or for liability in tort, based on the breach of a duty of care, or in other words the tort of negligence. However, it is worth noting that that still excludes civil liability in other respects, and we should ask whether that is justifiable.

First, the clause would still exclude civil liability under a contract, so a patient who has received improper care in breach of contract would not fall within either of the exceptions of proposed new subsection (1A). I take the point that, in the case of negligent care, there would often be a concurrent liability under the tort of negligence, and that that is preserved by new subsection (1A)(b), but that is not the case for other forms of contractual arrangements.

That might be particularly relevant in the situation of subcontracting. An example would be where an outsourcing company is tasked with transporting the lethal substance. Given the risks involved, the contract specifies strict rules that must be complied with, but the company does not comply with those rules. Under clause 25, even as amended, my concern is that they could not be sued for that breach of contract. What is the justification for excluding civil liability in contracts?

Secondly, there is the tort of trespass to the person, which is commonly relevant to medical practice, as it is under such torts that cases where there was no consent or capacity are handled. Those torts can be committed recklessly, but recklessness is not the same as bad faith or dishonesty, so liability could not be established under new subsection (1A)(a). Such torts are also different from negligence—they do not involve a duty of care—so they would not be covered by new subsection (1A)(b). I appreciate that, in many cases, liability could also be established under the tort of negligence, but that would not be the case in all cases. So I ask again: what is the justification for this exclusion?

Finally, and most concerning, we were told in previous debates that if it turned out that the criteria for an assisted death were not met, one could always apply for an injunction. Leaving aside the practical and financial obstacles involved in seeking an injunction at the last minute, which we have discussed before, my concern is that a private law injunction requires that a civil wrong either has been committed or is about to be committed. However, in a case where the doctors consider, in good faith and without negligence, that the criteria have been met, but the family has new evidence to show that that is not the case, the effect of clause 25, even as amended, would be that no civil wrong has been, or would be, committed in that instance, so the test for a private law injunction would not be met.

I might be wrong, so I would be interested to hear whether the Minister or the hon. Member for Spen Valley disagree with that analysis. I would be grateful if they could point out how the private law test for an interim injunction is met in such an instance.

All this could be much simpler if clause 25 were left out of the Bill entirely. Australia and New Zealand do not have such a clause or a civil liability exemption for practitioners of assisted suicide, and I am not aware of that having caused problems for practitioners, so I would be interested to understand why we need such a measure here.

--- Later in debate ---

[Rebecca Paul]

Thank you, Mr Dowd. In that case, I will stop there. I was just making the point that this is important.

Amendment 509 states:

“Proceedings for an offence under this section may be instituted only by or with the consent of the Director of Public Prosecutions.”

I would find it useful to have more clarity around how the offence is used currently, why it is used and why it is appropriate to use it in this instance. Those are all genuine questions. I simply do not know, so I would be grateful for some input. I will leave it there.

[Danny Kruger]

I will be grateful if the Minister or the hon. Member for Spen Valley can explain the situations in which behaviour criminalised by clause 26(2) would not also amount to an offence under section 2 of the Suicide Act, as amended, or indeed to murder. What behaviour would be criminalised here that is not already criminal? Can the hon. Lady think of any instance in which there would be no crime under section 2 of the Suicide Act, but there would be an offence under clause 26(2)? If there is no such instance—I cannot think of one—it strikes me that, at least in respect of coercion and pressure, the offence being created here is redundant and duplicative.

Ministers have rightly stressed the importance of their duty to the statute book. My understanding is that having redundant or duplicative legislation, or indeed duplicative offences, would be inconsistent with our duty to the statute book. One might ask, “What does it matter? Wouldn’t it be helpful to have additional belt-and-braces safeguards in the Bill?” I agree in principle, but I note that when other Members have deployed that argument in relation to adding terms such as “undue influence”, the neutral Ministers have rebuked them by appealing to the duty that we are supposed to have to the statute book. I think the point cuts both ways. Why are we embroidering the statute book with duplicative offences?

[Kim Leadbeater]

I would have thought, given the hon. Gentleman’s views on the Bill, that he would welcome having an actual offence for the purposes of the Bill. Surely that is something that we should all support.

[Danny Kruger]

I support the principle of insisting that inducing people by dishonesty, coercion or pressure to kill themselves should be illegal, but my understanding is that it already is. If it is not illegal, or if there are circumstances in which we need this additional offence that are not already captured by the Suicide Act or the law on murder, I would like to understand what they are. As I say, while it might be helpful to duplicate the offence, I understand that the very sensible convention in our law is that it is not helpful to have two offences relating to the same act because of the opportunity for offenders to play off one offence against the other.

Having duplicative criminal offences can make prosecuting cases harder because the defendant can raise abuse-of-process arguments about whether they have been charged with the most appropriate offence. I understand that the Attorney General’s Office and the Ministry of Justice are therefore usually very keen to avoid duplicative offences.

Let me give an example of the difference in the treatment of the offence. It is proposed that this offence would be subject to a life sentence, which requires the consent of the DPP. But at least in the one case where it overlaps with murder, this would provide a more favourable treatment for the accused than the other obvious charge. Can that be justified?

Duplicating criminal liability by introducing new offences has far-reaching implications that can disturb the coherence and certainty of criminal law. If one introduces a law that gives prosecutors two criminal offences to choose from to cover one act, some prosecutors will choose one and some will choose the other. This is generally undesirable; indeed, it is unprecedented in the case of homicide, where there is every reason to suspect that it could cause chaos for grieving families in search of justice. Such chaos is all too predictable, for a number of reasons.

Let me give an example. A defendant proven to have procured a suicide by deception will be well advised to plead guilty to the offence contrary to section 26(2) and then contest any attempt to introduce murder proceedings. This matters profoundly. A decision to prosecute is an administrative decision and is subject to judicial review. This is not an academic point; it could cause real distress for bereaved families in deep turmoil seeking justice.

Let us imagine that a person, A, is a new coercive and controlling partner of person B and procures by deception their suicide in order to profit from a will. The family of person B grow suspicious and provide the police with a convincing case for a murder prosecution. The CPS agrees and charges A with murder. A accepts that he procured the suicide by deception. On that basis, he appeals, seeking a remedy in judicial review, saying that the CPS should have charged him with a clause 26(2) offence, not murder. The JR is backed by wealthy pressure groups and is beset with administrative adjournments and so on. From the filing of the claim form to the final judgment of the administrative court within the High Court, the case takes 24 gruelling, painful, awful months for the bereaved family.

Throughout this time, the lawyers for A, the defendant, tell him to stay the course and continue to offer the plea to section 26(2), because the family will be exhausted by the reality of litigation. The family have no legal aid, no support, no charity backing and no one interested in their case. The war of attrition in litigation finally defeats them. They advise the CPS that they will accept a plea under the section 26(2) offence, and not the murder that actually occurred. That is the reality of duplicating criminal liability. In that example, A has got away with murder by judicial review.

We must be clear about what we are being asked to do. It is not simple. We are being asked to innovate in the law of murder. We are being asked to do so without the assistance of the Law Commission, without the careful eye of legal or judicial bodies alive to the difficulties of duplicating liability and without the input of any bodies that represent the victims of crime on how this might affect them. There are no Government consultations with such bodies before us. There is no expert assistance from judicial or legal figures on how the good intentions around clause 26(2) might unintentionally lead to serious and undesirable consequences such as those that I have described.

Terminally Ill Adults (End of Life) Bill (Twenty-sixth sitting)

Danny Kruger Excerpts

Committee stage
Wednesday 19th March 2025 Public Bill Committees

[Lewis Atkinson]

I am afraid I cannot agree. The situation that I set out, in which a hospice makes an organisational decision that it does not wish to provide assisted dying services, is entirely legitimate under the Bill, as drafted. I do not, however, think it should screen which applicants have a certain view, which would be legal under the amendment. The example that the hon. Lady gives is rather different, because it relates to a particular protected characteristic. I am not an expert in the area, so maybe colleagues can help me, but this relates to specific services.

[Danny Kruger (East Wiltshire) (Con)]

Will the hon. Gentleman give way?

[Lewis Atkinson]

I will move on, because we have started slightly late and I am not sure that we are going to add anything on this point.

There is a fundamental distinction between providing assistance and being the location in which people may self-administer an assisted death. In his speech on new clause 22, the hon. Member for East Wiltshire somewhat overlapped those two things, if I may say so. Having established that a hospice would be under no obligation to provide, an individual would clearly not be able to turn up and say, “Your staff must help me to do this.” However, that is different from a situation in which someone living in their own private home— that might include a room in a care home or sheltered accommodation—decides that they want their healthcare team to carry out entirely lawful and appropriate activities under the Bill.

I therefore cannot agree with new clause 22. People are legally resident in these premises. They are registered to vote. In some cases, such as in warden-provided accommodation, they have a lease. It is not a landlord in absentia. I know that the hon. Gentleman has provided an opt-out for some situations, but what about warden and supported housing situations? We would not accept operators or owners policing what lawful activities should happen in someone’s own home within that environment. That is entirely different from the situation that the hon. Gentleman sketched out, in which everyone has to be involved. There would be no obligation whatever on any staff of that establishment to participate in an ancillary manner or otherwise, but in a private residence, such as someone’s room in a care home, we cannot allow that to be prohibited.

[Danny Kruger]

As always, the hon. Gentleman is making a helpful and intelligent speech, and I appreciate the distinction that he is trying to draw. There is a lot to say, and I will respond more when I wind up, but does he think that it would be an acceptable condition of a lease—or whatever the living arrangement is for residents of sheltered accommodation or shared places—for the operator to specify that no assisted dying shall be performed in those premises, and for that to be a condition of coming to live there?

--- Later in debate ---

[Naz Shah]

If we are talking about employers and employees, not people who are accessing the service as service users, I hope the scenario to which my hon. Friend the Member for Penistone and Stocksbridge referred would not happen.

[Danny Kruger]

There is much to get into, and I will try to respond a bit more when I speak again. I do not want to revisit the whole question of palliative care but, on the scenario set out by the hon. Member for Penistone and Stocksbridge, the strong advice that I have received from palliative care professionals is that it is not accurate to say that somebody’s pain cannot be palliated. It might well be that there is a difficulty with particular opioids, but there are other palliative care options available to everybody. No palliative care doctor ever says that there is nothing they can do.

[Kit Malthouse]

She said exactly that.

[Danny Kruger]

Well, we have been over the whole question of palliative care and alternatives to assisted suicide; nevertheless, I wanted to challenge that scenario.

On the suggestion that there is a comparison with an abortion service no one is suggesting that a woman who goes into a refuge, discovers she is pregnant and wants to have a termination is somehow obliged to have it on the premises of the refuge, which does not believe in abortion. That is not a scenario that could happen, because that is not how abortion operates. What we are suggesting is that somebody who arrives in a care home or hospice that does not want to facilitate assisted suicide would not be able to receive such assistance there. There is no objection to their believing in or desiring an assisted suicide; the point is to protect the institution.

I recognise the difficulty with the specific case the hon. Member for Penistone and Stocksbridge raised. Nevertheless, the alternative is to have blanket permission for any resident of any care home or hospice to insist that they can receive an assisted death in that home or hospice, despite what the rest of that community and the management might want. Indeed, the patient might have signed a contract specifying that they will not seek an assisted death in that home or hospice. There is much more to discuss, but I hope that that is helpful for the hon. Lady.

[Naz Shah]

I thank the hon. Member. What he said is really helpful.

I want to come back to the issue of opioids. As someone who suffers from chronic pain, my understanding is that I have a choice over whether I take opioids or other medication. So when people are allergic to opioids, they can potentially access other medication for pain relief.

--- Later in debate ---

[Stephen Kinnock]

As I was saying, the scope of the term “premises” is unclear. Is it residential property, care home, hospice or indeed hospital? That is one of the challenges with the drafting of the amendment: the scope and definition of the term is not clear.

[Danny Kruger]

We are going to get to the question of the NHS provision, but, surely, if it is the decision of Parliament and the Secretary of State that assisted suicide should be provided through the NHS, then that is what will happen. It might be that there are some trusts that will have some sort of autonomy—to the extent that they can decline to deliver certain services—but, if this is a healthcare treatment that is regulated in that way and if it is to be set out as something that shall be provided by the NHS, surely hospitals will not be in a position to decline to deliver, if they are indeed NHS hospitals. The purpose of these amendments is to protect private and charitable providers. Does the Minister agree?

[Stephen Kinnock]

I agree with the sentiment of the hon. Gentleman’s intervention. The challenge is that the way in which the amendment is drafted could well lead to unintended consequences, because the scope is not clear. If we are not clear what the scope is, it could potentially be exponential.

New clause 23 would prevent regulated care homes and hospices from facing any detrimental consequences for not providing or permitting assistance in accordance with the Bill. This also means that their funding must not be conditional on them providing or permitting such assistance to take place on their premises. As a result, a person who is terminally ill and is residing in a care home or hospice could be asked or required to leave that care home or hospice in order to receive assistance under the Bill, if that care home or hospice provider does not wish to allow assisted dying on their premises.

In such circumstances, the care home or hospice provider would not be able to be placed in any detriment as a result of any action or decision taken. This could engage a person’s right under article 8 of the ECHR. Further, public authorities would not be able to persuade care homes or hospices to provide or permit assistance to take place on their premises by offering additional funding if they agreed to do so. Equally, if a public authority gave funding to care homes or hospice providers in recognition of their agreement to provide or permit assisted dying on their premises, and that provider later decided not to provide or permit the assistance, and spent the funding on other matters, the public authority would not be able to recover the funding if it were given unconditionally.

Clause 23 sets out that no registered medical practitioner or other health professional would be under any duty to participate in the provision of assistance in accordance with the Bill. It also sets out that employees cannot be subject to any detriment by their employer for exercising their right to either participate or not participate in the provision of assistance in accordance with the Bill. Further amendment to the clause will be required on Report to ensure that the opt-out in clause 23(1) and the employment protections in clause 23(2) work effectively alongside the duties imposed on health professionals in other provisions of the Bill as amended in Committee.

I hope those observations were helpful.

--- Later in debate ---

These are sensitive issues, and there is a range of views across the various professions involved in end of life care. Hospice UK recognises that, which is why, representing its members’ different views, its formal position is that it has no collective view. It recognises that staff, volunteers and hospice trustees will look at the Bill’s implications in a variety of ways, and we should give them the time and space to do so, rather than the Bill’s dictating what they should or should not do. We probably all have hospices in our constituencies and local areas, which we visit and have good relationships with, and we probably all have family and friends who have benefited from the care of those amazing places—I know I have. That local dialogue is important—almost as important as what goes into this legislation.

[Danny Kruger]

Obviously, the sentiment that we should work with hospices and let them set their own policy is absolutely right—that is the purpose of the amendment—but does the hon. Lady acknowledge that the Minister just said that if any hospice attempts to prevent assisted dying from taking place on their premises, there will be human rights claims? They can have all the consultations and conversations they want, but unless the Bill specifies that they are allowed to opt out, they will be forced to do it.

[Kim Leadbeater]

The hon. Gentleman makes a good point, and I am aware of the Minister’s comments. This will be part of the discussion as we take it forward. That is why this debate is really powerful.

In their written evidence, the trustees at Willow Burn hospice, based in the UK, told us:

“Our Mission is to deliver hospice care of the highest standard to our patients and those important to them...We also believe that we should support and enable people to make the choices that matter to them.”

They said they had not decided their position on assisted dying and remained

“open minded about possible future actions. We believe this stance is in the best interests of patients and their families and reflects the wishes of our community.”

I welcome that open-minded approach and their commitment

“to put care, compassion and dignity at the heart of everything”

they do. Contrary to what the hon. Member East Wiltshire has said, the picture is not black and white. I agree with my hon. Friend the Member for Ipswich in that regard.

Colleagues may remember the evidence given to the Committee by the CEO of Hospice UK, Toby Porter. He clarified for us that institutions do not function in the same way as individuals when it comes to conscience-influencing decisions. He told us:

“There is this idea that your individual opinion guides everything, but with a hospice charity the opposite is true. As many Members will know because of their own work as trustees, the trustees and leadership of a hospice team are required to put personal opinion and interest to one side and always act in the best interest of the charity’s beneficiaries, who are the population.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 195, Q255.]

It is also important to remember that international experience shows that up to 30% to 40% of patients who sign up to the assisted dying process ultimately do not access it. Palliative care may meet their needs, or they may simply change their mind. However, we also know that the reassurance and comfort that the choice of an assisted death provides alongside other treatment and care is really important to them, and I do not believe that reassurance should be denied to some people because of the institution they happen to be in.

--- Later in debate ---

[Kim Leadbeater]

It is a good point. My understanding—the Minister might correct me—is that pharmacists currently are within the definition of health professionals, but if they are not, that is an important point, which would be covered by making the change to ensure that no one is under any duty. However, I will definitely check that.

Mr Porter also said:

“hospices evolved out of the community. They exist because communities wanted better deaths. In the end, it is the job of institutions to evolve to fit the values and laws of society as they evolve, rather than vice versa.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 202, Q264.]

The polling on assisted dying shows significant public support for a change in the law, which is one of the main reasons we are here discussing the issue today. The latest figures from the British social attitudes survey, published just this week by the National Centre for Social Research, show that support at 79%, which is unchanged or slightly up on a decade ago. Although I cannot support these amendments, this is an important debate. I think we have conducted ourselves extremely well over the past 24 hours. I think it is important that we continue the debate respectfully and sensitively.

[Danny Kruger]

I, too, am very grateful to you for rescuing us, Ms McVey; thank you. I also thank the hon. Member for Spen Valley: it is nice to be commended for our good conduct, so I am grateful for that. This has been a very interesting debate, and I thank all hon. Members for participating. I appreciate the fact that we have made some progress in understanding each other and potentially improving the Bill, although I regret the lack of support from the Government Front Bench for the amendments that I have tabled.

Let me just refresh memories on the purpose of my amendments. The Bill promoter has tabled amendments to clauses 24 and 25, which we will come to and which keep the phrase

“providing assistance to a person in accordance with this Act”,

but add to it these two other phrases:

“performing any other function under that Act”

and

“assisting a person seeking to end their own life in accordance with that Act”.

Those amendments expand the protection from criminal and civil liability. They mean that performing any other function under the Act and assisting a person seeking to end their own life, in connection with the doing of anything under the Act, are both protected from criminal and civil liability. But the hon. Lady has not tabled a similar amendment to clause 23, and there is a real risk. The British Medical Association, the Royal Pharmaceutical Society and the Royal College of Nursing, as I mentioned yesterday, have all warned that the protection of conscience clause is limited solely to the final act, rather than applying to all functions under the Act. I appreciate that the hon. Lady expresses a commitment to trying to ensure that we do cover everybody and all appropriate actions and activities that take place, but I suggest that that is what my amendment would do.

In response to the objections to the amendment, I appreciate the sudden interest in precision in drafting.

[Kim Leadbeater]

It is not sudden!

[Danny Kruger]

Well, every time that those on my side of the debate raise detailed, particular points we are told, “Oh, the spirit of the text is clear. We’ll sort that out later. It’ll come in guidance.” We are told that we should not be nitpicking, embroidering and so on. Anyway, I appreciate the attention to detail, and I want to respond to some of the points.

With respect, the Minister made a pretty tendentious suggestion that a doctor could opt in to assisted dying and take part in some of the procedures but then suddenly decide to neglect performing others, and that that would not be negligent. I cannot conceive of any court or tribunal conceding that it would not be negligent not to fulfil the obligations under the Act once the procedure has begun—once the doctor has made commitments and already undertaken activities to progress an assisted dying case.

The hon. Member for Luton South and South Bedfordshire objected on the grounds that the amendment might give a gardener or cleaner the right to opt out. Proposed new subsection (1B)(b) of clause 23 actually makes it clear that “ancillary” activities are not protected by the conscience clause, so the gardener would not be off the hook—under the amendment, the gardener would still have to mow the lawn.

I recognise that the drafting might not be perfect, but I emphasise that the PBL “Guide to Making Legislation”—by the secretariat to the Parliamentary Business and Legislation Cabinet Committee—makes it clear that Government should not object to Back-Bench amendments on drafting grounds. If there are issues with particular phrasing that cause the Government or the promoter concern, that can be addressed subsequently, so I regret it if the Minister is using drafting issues to justify a refusal to support these amendments.

On new clause 22 and the issue of premises, which we have discussed very interestingly, a couple of objections have been raised. The first relates to shared ownership schemes, which we are all familiar with, particularly for elderly people. The answer is simple. The corporate owner under a shared ownership scheme is not in occupation. Being in occupation has a particular meaning in land law, and it is not the case here that a tenant genuinely in occupation of their own premises could somehow be denied their right to have an assisted death in their own home because of the freehold arrangement of the premises they occupy.

I am grateful for the indication given by Members, particularly my right hon. Friend the Member for North West Hampshire, that there may well be circumstances in which it is appropriate for particular premises to opt out of the obligation to facilitate assisted dying, so that a particular institution would have the right to deny permission for assisted death.

[Kit Malthouse]

To clarify my remarks, I was not necessarily saying that they should have the right to deny, but by default they would if they were, in effect, a closed community that was discriminating in favour of like-minded individuals—a home for retired Catholic priests, for example. By default it would be someone who was unlikely to offer those services. The other point to ask is: if I am in a hospice, in my bed at the last with visitors coming to see me, and one of those visitors is the doctor who is coming to administer to me, I am not quite sure how that would be prevented, unless people are willing for there to be a wrestling match at the door of my room.

[Danny Kruger]

Under the terms of amendment 441, the owners of the premises would be entitled to deny access to anyone who is seeking to deliver an assisted dying service on their premises. They would be entitled to prevent that from happening, yes. Obviously, that is an extremely unlikely scenario; nevertheless, it is one that I think we need to contemplate.

I thank my right hon. Friend the Member for North West Hampshire for his clarification. I had understood that he had acknowledged that it would be appropriate for the management of a Catholic care home to specify that there shall be no assisted dying on the premises, but he is suggesting that it would be illegal or inappropriate for the management to make that stipulation; it just would not happen organically, because no one would want that in that place. I regret that, because I think it should be appropriate for the management of a place—not in some sort of vindictive mission to deny people a particular right or service—to convey to everyone else who lives there that this is, as it were, a safe space in which there will not be state-assisted suicide. I think that is a reasonable hope and expectation that many residents will want when they live in a certain place.

Once this becomes normalised, once it becomes 5% or 10% of deaths, as happens in parts of Canada—if this becomes a normal and standard way to die—I think many people will not want to live in communities in which that practice takes place. I am afraid that we will find a demarcation, a bifurcation in society, for those who do not want to live in an assisted suicide community. It would be appropriate for them to have the option of going to live in a place where they know that will not be taking place.

I concede, by the way, that for many of the institutions that we are imagining here, these shared communities, it would be perfectly appropriate and understandable for it to be an option for residents. Let us think about the different sorts of places we are talking about. The Duchess of Somerset almshouse in my constituency—the sort of place we have in Wiltshire—is a lovely place, beautiful. It has lots of Liberal Democrat voters in it, which I know because I knocked on all their doors—unfortunately, the wrong sort of Liberal Democrat. I can imagine many of them supporting the right in their home, behind their own front door—which they have there—to have an assisted death, and I am sure that the other residents of that place would concede that that is appropriate.

In other places in my constituency, however, a hospice being the most obvious one, neither the management nor the other residents would be comfortable—in fact, they would be extremely uncomfortable—with the sense that assisted suicide might be practised in the next-door room. Whether it is performed, as it were, by the hospice staff, or merely facilitated by them—it would be extraordinary were it somehow to take place without the facilitation of the staff who managed the facility and look after the patients—for it to take place on some sort of parallel track would be an extreme imposition on that hospice and its management. It would be extremely disquieting for everyone else who lives and works in that place. I therefore think it is an appropriate consideration to give such places the right, at a management level, to opt out.

I also want to express my deep concern about what we heard from the Minister—his suggestion that we should not give either individuals or institutions the absolute right to opt out of the facilitation of assisted suicide because we think the European convention on human rights might challenge that. He suggested that a court in this country or Strasbourg would overrule a decision or would negate this law, or challenge it, if we passed it with these amendments to protect hospices and individuals. We would then have a court citing international law in an attempt to overturn this law. I am very concerned about that in terms of both parliamentary sovereignty and the Government’s position. Surely, if the Government think this is the right thing to do, we should do it even if we fear an ECHR challenge. This is a craven submission to a lawmaking body that is not sovereign in our country and would be only advisory. I regret what the Minister for Care said and hope that the Justice Minister can clarify that the Government would not concede an ECHR challenge if Parliament decides to insist on individuals’ rights to decline to participate in assisted suicide.

In response to my challenges on that point, the hon. Member for Spen Valley suggested that it would be an interesting topic for a future conversation. This is the moment to have that conversation. We are deciding on amendments now that will insist on people’s right to decline to take part in assisted death. There will be no further opportunity to insist that people have that right to opt out except on Report, which will be a limited opportunity.

Yesterday, the hon. Member for Luton South and South Bedfordshire made an interesting point that had not occurred to me—whether a husband living with his wife in their own shared home could legitimately deny her the right to assisted suicide in their home. It is a very good challenge. It is certainly not the policy intention, as I am sure the hon. Lady appreciates, to enable one partner to deny the other the right to assisted suicide in their shared home. I ask her to accept that that is not the intention. The purpose of the amendment is to give an occupier the right to refuse assisted dying.

With the hon. Lady’s permission, given that this clause will be voted on only next week, I propose tabling an amendment that would address her concern. I am happy to work with her or the Government to get to the point where we are satisfied that that concern has been addressed, because she is absolutely right: in someone’s own home, their partner or the person who shares the home with them should not be allowed to deny them.

We have hashed out the question about protected beliefs in relation to amendment 481, so I will move on.

[Kit Malthouse]

I am wondering about the difference between my own home with my partner, and my care home with lots of people that may or may not be strangers, and why I should have the right in one but not in the other.

[Danny Kruger]

I hope my right hon. Friend will understand that there is a difference between occupying one’s own home and living in a community under conditions set by somebody else, which is what happens if someone lives in a care home. There are terms and conditions. People have to comply with the rules of the place and have obligations to their fellow residents. In someone’s own home, whether they are living with a partner or not, they have absolute rights. That is the difference. If someone signs up to live in a care home, they have to follow the rules of the place, just like in a hotel. In someone’s own home, they can do what they like, as I am sure my right hon. Friend does.

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

We should acknowledge the reasons that people go into residential and nursing care homes. They go into them because they need day-to-day help to live. Would the hon. Gentleman reconsider what he has just said? It seems to fundamentally discriminate between people who are able to live at home, have families or carers around them and can operate in that way and people who need to go into residential, and particularly nursing, homes.

[Danny Kruger]

The right hon. Lady clarifies the point very well. I concede—that is right. When someone goes to live in a care home, they yield, by necessity, a whole set of freedoms that one has in one’s own home. That is the consequence of the stage of life they are at, the conditions they have, and indeed their own choice to live in that particular care home.

[Liz Saville Roberts]

They might not have one.

[Danny Kruger]

I appreciate that—there might be very little choice or no alternative. I am speaking in terms of the reality of life. We can do everything we can through the law to obviate reality—to give people as much autonomy as possible, even though they are very dependent on other people. That is why it is so important to consider the autonomy of the elderly, the frail and people with disabilities or who are ill. They require other people to give them what fully healthy and able-bodied people are able to do for themselves. I recognise that I am suggesting that somebody who lives in a care home would not have the same freedom of action as somebody living in their own home.

Terminally Ill Adults (End of Life) Bill (Twenty-seventh sitting)

Danny Kruger Excerpts

Committee stage
Wednesday 19th March 2025 Public Bill Committees

[The Chair]

I remind the Committee that with this we are discussing the following:

Amendment 483, in clause 23, page 15, line 5, after “assistance” insert

“, or in any activity closely related to the provision of assistance,”.

This amendment would widen the range of activities which medical practitioners and other healthcare providers are not under an obligation to provide to include activities closely related to the provision of assistance under the Act.

Amendment 484, in clause 23, page 15, line 8, after “Act” insert

“, or in any activity closely related to the provision of assistance under this Act,”.

Amendment 441, in clause 23, page 15, line 9, at end insert—

“(3) There is no obligation on any care home or hospice regulated by the Care Quality Commission or the Care Inspectorate Wales to permit the provision of assistance under this Act on their premises.”

This amendment prevents there being any obligation on a care home or hospice which is regulated in England or Wales to permit the provision of assistance under the Act on their premises.

Amendment 481, in clause 23, page 15, line 9, at end insert—

“(3) Nothing in subsection (2)—

(a) prevents an employer who has chosen not to participate in the provision of assistance in accordance with this Act from prohibiting their employees from providing such assistance in the course of their employment with that employer, or

(b) prevents an employer from specifying occupational requirements in relation to the provision of assistance in accordance with this Act in accordance with Schedule 9 of the Equality Act when hiring employees.”

This amendment ensures that employees cannot provide assisted dying against the wishes of their employers and that employers can still rely, in appropriate cases, on the occupational requirements of the Equality Act to either require employees to provide or not to provide assisted dying.

New clause 22—No obligation for occupiers and operators of premises—

“(1) Any individual, business, organisation, or association who occupies or operates premises has the right to refuse to permit the self-administration of an approved substance on their premises.

(2) Nothing in subsection (1) confers any right on anyone with an interest in the land but who is not occupying or operating those premises.”

This new clause would mean that the owners or occupiers of premises — but not landlords not currently in occupation — are not obliged to permit the self-administration of approved substances on their premises.

New clause 23—No detriment for care home or hospice not providing assistance—

“(1) No regulated care home or hospice shall be subject to any detriment by a public authority as a result of not—

(a) providing assistance in accordance with this Act, or

(b) permitting such assistance to take place on their premises.

(2) No funding given by a public authority to a regulated care home or hospice can be conditional on that care home or hospice—

(a) providing assistance in accordance with this Act, or

(b) permitting such assistance to take place on their premises.”

This new clause would mean that regulated care homes and hospices cannot be subject to any detriment for not providing or permitting assistance in accordance with this Act, and that their funding cannot be conditional on them providing or permitting such assistance.

Clause stand part.

[Danny Kruger (East Wiltshire) (Con)]

I was just concluding my remarks on the amendment. I will quickly finish responding to the hon. Member for Spen Valley and others, who suggested that it would be improper to deny people living in a care home, hospice setting or other communal environment the right and opportunity to request assisted dying. I was suggesting that that right needs to be tempered by an acknowledgment that they do not live there alone, and that there are also rights, properly held, by the occupier of the premises, the individual’s neighbours and others.

My concern is that, just as suicide itself is contagious, so the practice of assisted suicide will have social ramifications. We fully recognise that, if the Bill is passed, people will have the absolute right to request the service in their own home, but when someone is living among others, that right needs to be tempered by the consideration that the occupier should ultimately decide whether he or she is prepared to allow the practice to take place on his or her premises.

Some hon. Members suggested that, if an institution receives public funding, it would be appropriate for it to be obligated to deliver the service. I am concerned about the implication of that, which might be that institutions that did not wish to provide or facilitate assisted suicide but did receive public money, for instance care homes or hospices, would be at risk of losing that money—essentially being defunded—on the grounds of their conscientious objection to participating in assisted dying. I would be grateful if the hon. Member for Spen Valley or Ministers would confirm that it is not their intention to penalise bodies that do not deliver assisted dying by withdrawing public money.

On the impact on staff, I am grateful to the hon. Lady for acknowledging that we might need to tighten the Bill to ensure that it is clear that people will not be required to participate in any stage of the process of assisted dying, and not just in the actual provision of assistance towards the final act. Nevertheless, my concern is that if we do not give institutions the right to opt out of provision, there will be an exodus of staff who object to being involved in any way with, or working for an institution that facilitates, assisted dying, as has happened in other jurisdictions where assisted suicide is legal.

I point particularly to evidence we heard from Australia. We were told that, in consequence of assisted dying being legalised in Australian states, there was an exodus of workers from the healthcare system—nurses and others—and the social care system. It was therefore no coincidence when one of the Australian witnesses who supports assisted suicide declared breezily that, although there were significant objections among the care workforce to the introduction of assisted dying when the law was first debated, five years later there was overwhelming support for assisted dying among them. Well, that is no surprise, because all the objectors had left, and I am afraid that is what we will see here.

A comparison would be the exodus of care workers that we saw after the last Government mandated covid vaccination. Some 40,000 care workers left their jobs rather than accept compulsory vaccination. If they were prepared to do that on those grounds, I fear we might see a similar phenomenon if we mandate that institutions facilitate assisted dying.

[Lewis Atkinson (Sunderland Central) (Lab)]

May I check that the hon. Member’s understanding is the same as mine—that nothing in the Bill compels an organisation to participate in the way that he describes?

[Danny Kruger]

No, I am afraid I do not concede that. At the moment, it is not apparent from the Bill or the amendments that have been accepted that an organisation would be enabled to decline to facilitate the provision of assisted dying. No organisation will be compelled to do so, but if a resident were to request assisted dying in their care home, my understanding is that the care home would be obliged to facilitate it.

It might well not be the intention behind the Bill, because I know that the hon. Member for Spen Valley and Members who agree with her recognise the importance of a conscience exception; they have been very clear on that, and I am grateful to them. Nevertheless, my concern is that on human rights grounds, as we have heard from the Minister, the likelihood is that there would be a claim on behalf of an applicant against the institution they reside in that assisted suicide must be provided to them in that place. I am afraid the Bill at the moment does not give an adequate exemption to institutions.

[Lewis Atkinson]

Does the hon. Member accept the distinction that I made between an organisation choosing to provide assisted dying services and the instance he outlined of this being done in someone’s home that happens to be a care home? They are entirely different points, and I fear that, particularly with regard to hospices, he is conflating the two.

[Danny Kruger]

I am conflating the two because they are conflated in reality. A care home where somebody lives is a residence, but it is also a community, a facility and a place where professionals work to support that individual. A clear demarcation between their living arrangements and the support they receive from the institution they live in does not exist in reality. That is why they are living there—because that distinction does not apply in their particular case. They require the support and help of the workers in the place where they live.

I am afraid it is not enough simply to say, “This is their home, and they should have exactly the same rights and freedoms as they would have if they were living alone in their own flat or house.” We have to recognise the reality of the situation, which is that they are living in a community, and what happens in the community affects them all. That is the nature of communal living. This is not individualised healthcare in the way that the hon. Gentleman imagines it is, and that is fundamentally our point of difference. This is separate or adjacent to healthcare, and it is delivered, by definition, by somebody else. By virtue of the Bill, it would have a separate regulatory environment to other healthcare treatments. Of necessity, it should have an appropriate legal framework to protect other people who are impacted by assisted death in a communal setting. That is my crucial point: if someone is living in a communal setting, what they do affects their neighbours.

[Jake Richards (Rother Valley) (Lab)]

Does the hon. Gentleman appreciate that, although this is different from the healthcare services we currently have, we have a legal framework that deals with many of these conflicting issues as and when they arise in lots of different circumstances that are not completely adjacent to these?

[Danny Kruger]

I do not know what those might be, but I would be interested to hear. That might well be the case. I am afraid that no hard-and-fast rules can be clearly applied here; or, rather, we have to apply hard-and-fast rules in the knowledge of the grey areas, the exceptions and the situations in which we might feel that the law is unjust in particular cases. We have heard examples of that, such as the evidence about the lady in Australia cited earlier by the hon. Member for Spen Valley. I can well imagine the distress involved if someone suddenly finds themselves in an institution that does not permit an assisted death, but they want one and are in their last days.

The alternative, however, is a different blanket rule. If we were to have a blanket rule that we can do an assisted death anywhere—that is one situation—there would be significant knock-on effects. Serious moral injury would be suffered by other professionals and residents. I recognise that my amendment could lead to someone having to relocate if they want to have an assisted death—I am sorry for that—but I think that we have to draw the line in a way that makes most sense.

[Kit Malthouse (North West Hampshire) (Con)]

It would be interesting, if my hon. Friend’s amendments go through, to see the series of plebiscites taking place in care homes and communal situations across the country as to what the residents do and do not want, presumably by a majority. He asserted that there had been a mass exodus of healthcare workers when VAD came in, but I am struggling to find any evidence to support that claim. In fact, the evidence seems to say that that is not the case. Although there have been some resignations, that has largely been because of pay and conditions, as one might expect.

[Danny Kruger]

My right hon. Friend seems hung up on this suggestion that there needs to be a plebiscite or communal decision making—some kind of citizens’ jury. I am not suggesting that for one moment. In fact, I am sure that I have said explicitly that what I want, and what the amendment would enable, is that the owner or occupier, who would probably be an individual or a board of directors, would decide what happens. If they are a decent, compassionate organisation, they might well consult residents—in fact, I would very much expect that to happen if they are doing their job properly—but I am talking about the importance of communal living; and the fact is that a communal living arrangement has leadership. The residents have signed terms and conditions, in a contract, under which they have agreed to abide by certain rules of the house. My suggestion is that if the charity, company or organisation that is managing a care home wants to stipulate that there shall be no provision of assisted dying in that care home, they should have the right to do so. I hope my right hon. Friend would acknowledge that that is consistent with English property rights.

On my right hon. Friend’s second point, I am grateful to him and he might well be right. I am happy to consult my evidence pack, which I do not have at my fingertips, about the effect on the Australian workforce in consequence of the introduction of assisted dying. My memory is that we heard such evidence, or had it submitted to us in written form—his knowledge of the 500 submissions might be better than mine. Let us check and we will have it out, perhaps on social media; I know how much he enjoys those forums.

Question put, That the amendment be made.

--- Later in debate ---

Under clause 26, coercing or pressuring a person into an assisted death is a criminal offence, and rightly so. There has, however, been much debate on whether undue influence and encouragement are also covered. The Minister advised previously that undue influence is covered, and I seem to recall that encouragement could be covered as well. If that is correct, we would have the sloppy situation in which encouragement could be a criminal offence both under the Bill and under the Suicide Act. It would be really helpful if the Minister set out the position clearly on the point, to make sure that we do not inadvertently end up in that situation. I imagine that best practice is to have only one criminal liability in one Act or the other, if it is appropriate at all.

[Danny Kruger]

It is an honour to follow my hon. Friend the Member for Reigate; I very much agree with the points that she made, and I hope that Ministers will respond. I will try not to repeat her arguments.

The hon. Member for Spen Valley says that clause 24 is, in a sense, the heart of the Bill. I agree. Without the clause the Bill would be ineffective, because the service that we are proposing to legalise would be illegal. We have heard many objections to the term “assisted suicide”, but the necessity of the clause exposes the fact that what is being legalised, at least in part, is assisted suicide. Calling it assisted suicide is therefore not improper; it is simply using the correct terminology, as I believe we should in this place. That is particularly important because the use of the euphemism “assisted dying” masks what this is really about and what the Bill would actually legalise: that somebody could help somebody else to commit suicide.

It is no surprise that the euphemism is deployed, because support for what is called assisted dying is driven in part by a failure to realise what it actually is and what the words mean. I cite a 2024 Nuffield Council on Bioethics survey of the public, which found that 39% of people think that assisted dying means withdrawing life support, 19% think that it means providing people who are dying with drugs that relieve symptoms of pain or suffering, and 13% think that it means providing hospice care, all of which is legal currently and is good medical practice.

[Lewis Atkinson]

The hon. Gentleman says that he is clear that those actions are assisting suicide and that he thinks that they are illegal. Is it right that members of the public, in the instance to which my hon. Friend the Member for Spen Valley referred, be investigated by the police on their return from trips to Switzerland?

[Danny Kruger]

Let me come to the question of investigation by the police in due course, but I am not sure that the hon. Gentleman heard me clearly. I was not talking about offences that I think are rightly criminal; I was talking about offences that are not offences at all. Providing hospice care, helping people to relieve symptoms of pain or suffering and withdrawing life support are all perfectly permitted and legal in our system. The issue is that a significant proportion of the public think that those activities are what assisted dying entails. I do, however, recognise the point and the power of the testimony recited by the hon. Member for Spen Valley, to which I will come on in due course.

I understand that in order to make the Bill effective, an exception must be made to section 2 of the Suicide Act. Section 1 says that someone is allowed to commit suicide; section 2 says that one cannot help somebody else to do so. I agree that such an exception is necessary if we are to pass the Bill, but I cannot follow why clause 24(1) is needed. I will be grateful if the hon. Member for Spen Valley or the Minister can explain which other offences would necessarily be committed by a doctor properly carrying out his or her functions under the Bill. What other offences might be caught that require clause 24(1)?

Clause 18 will forbid a doctor from engaging in euthanasia. One criminal law from which an exemption is not necessary is the law on murder, yet ostensibly subsection (1) has no such limitation. I would be grateful for the Minister’s confirmation that subsection (1) will not afford a defence when the charge is murder. I presume that that is not the intention.

What about manslaughter, and particularly gross negligence manslaughter? Under the Bill, a pharmacist performing the function of prescribing or dispensing the legal drugs would be, to use the wording of amendment 504, “performing” a “function under this Act”. If a pharmacist makes a grossly negligent mistake and mislabels a drug, which is then sent to another patient who takes it and dies, that would quite clearly be gross negligence manslaughter. Can the Minister explain why clause 24(1), as amended by amendment 504, would not allow someone to benefit from an immunity in respect of gross negligence manslaughter? To be clear, I agree that if the pharmacist intentionally mislabelled the drug, he could not be described as

“performing any other function under this Act”,

so he would not have that defence. However, in a case where, in good faith, he had made a fatal and grossly negligent mistake, surely he would have been performing such a function, albeit performing it very badly.

Can the Minister clearly set out the reasoning to explain why there is no chance of such a defence under the clause? Of course the hon. Member for Spen Valley does not intend to exempt from criminal liability a pharmacist acting in that grossly negligent way, but I am trying to make sense of the drafting of the amendment. If there is any criminal offence, other than in the Suicide Act, that requires an exemption, it would be best to say so clearly in the Bill rather than relying on a catch-all term, as subsection (1) does.

I concur with the points made by my hon. Friend the Member for Reigate and will not repeat them, but I do find it interesting that the hon. Member for Spen Valley has chosen to retain the offence of assisting and encouraging suicide. This is because two arguments made by proponents of the Bill lead to the logical conclusion that the offence should either be repealed entirely or limited to self-conduct, as is the case in Switzerland. Let us look at the two arguments in turn.

The first argument relates to autonomy. If an autonomous individual with capacity decides to end their own life and requests the assistance of another person, why should that other person be criminalised? After all, that person is simply helping another person to do something to their own body that the law has not prohibited since 1961, so surely it is a violation of autonomy to criminalise such conduct of assisting in suicide.

Lord Mance, a former justice of the Supreme Court, put the matter as follows on Second Reading of the Meacher Bill in the other place:

“Suicide is decriminalised, yet assisting suicide remains criminal—probably a unique exception to the principle that you can only be an accomplice to an act that is itself criminal.”

It is bizarre that the act is not itself criminal but being an accomplice to it is. Lord Mance went on to say:

“If a person may choose freely to commit suicide, what justifies a refusal to allow them to obtain willing assistance?”—[Official Report, House of Lords, 22 October 2021; Vol. 815, c. 408.]

I believe in the value of a prohibition on assistance, but the logic of the argument from autonomy—that someone should be allowed to request assistance to help them to die—surely obviates the distinction. I do not see why we have kept section 2 at all, and I would be interested in hearing from the supporters of the Bill what the limiting principle is. Why do they think assisted suicide should remain a crime, despite its being a limitation on autonomy, outside the scheme created by the Bill? Why are we simply creating a scheme within the Bill?

The second argument given, which I think relates to the intervention from the hon. Member for Sunderland Central and to the point made by the hon. Member for Spen Valley, is based on the fact that the current law requires people to travel to Switzerland. The argument against the current system comes in three forms. One stresses the toll that it places on families to know that the people who assist have committed a criminal offence and could be investigated by the police, even though the chances of prosecution are remote. I fully recognise and share all the concerns among Members about the terrible distress faced by people who may in any way have assisted their loved one to take their own life.

The second objection to the status quo makes the point about the unfairness that the situation creates. The hon. Member for Liverpool Wavertree (Paula Barker) said on Second Reading:

“I do not want choice to be available only to those who can afford to pay. That is not just or equitable.”—[Official Report, 29 November 2024; Vol. 797, c. 1073.]

The suggestion is that to have to pay to go to Switzerland is a violation of equality.

The third is a constitutional argument. It is said that it is constitutionally improper for the Director of Public Prosecutions to have effectively decriminalised assisted suicide for people who travel to Switzerland. But the point I am trying to make is that under the Bill, anyone helping their relative to travel to Switzerland, or any other country, would still be committing an offence under section 2 of the Suicide Act.

Research from My Death, My Decision, a campaign group pushing for a wider Bill than the current one—it supports the Bill but clearly wants it to go further—has found that 50% of cases going to Dignitas would not be eligible under the Bill. It helps to make my point, which is that I am afraid that if the Bill were passed we would still have stories like the very moving testimony read out by the hon. Member for Spen Valley. In fact, as my hon. Friend the Member for Reigate said, there is a significant likelihood that there would be more prosecutions. If the Bill were enacted, the conclusion of the Crown Prosecution Service and the police might well be that, given the existence of an assisted dying regime within the UK, assisting one’s relative to go to Switzerland should be subject to a greater likelihood of prosecution. That is a legitimate concern.

[Tom Gordon (Harrogate and Knaresborough) (LD)]

The point that the hon. Gentleman is making is actually one that I made yesterday. I appreciate that we are on entirely different sides of the debate, but that is exactly why I was talking about ensuring wider eligibility—the point he makes in relation to My Death, My Decision—and ensuring the provision of assistance for people who might have illnesses such as motor neurone disease. We have had to put a cut-off somewhere, and some people fall outside it, but does he accept that fundamentally this is about making sure that there are safeguards? That is the key point: that we should ensure safeguards. What the hon. Gentleman is talking about is exactly that.

[Danny Kruger]

I am grateful. With great respect to other members of the Committee, I think the hon. Gentleman is the most honest advocate of assisted dying among us, because he genuinely recognises that autonomy demands the widest possible range of eligibility. It might be that other Members feel that we have the balance exactly right. I recognise the force of his argument that if we are going to introduce a new human right, it is very difficult to circumscribe its boundaries. He himself thinks that there should be some boundaries: he proposed an amendment that specified 12 months, and he thinks that only certain people should be able to ask someone else to perform assisted death to them. Nevertheless, he is acknowledging that if we believe in autonomy, the Bill would not satisfy some people.

I think it would be intellectually coherent and more logical for proponents of the Bill to want to repeal section 2 of the Suicide Act, and I do not understand why they are not doing so. We could certainly continue to insist on prohibitions against any form of coercion, persuasion or inducement to take one’s own life, but if somebody is clearly in their right mind and wants to receive assistance to kill themselves, that is the principle of the Bill. It would be neater if we amended the Suicide Act accordingly.

The fact that proponents do not want to do so suggests that they see some value in the law and that they consider that that value trumps concerns about autonomy and the impact of the law on family members of someone who wishes to travel to Switzerland to end their life. I agree that there are such principles—namely, the intrinsic value of life and the protection of the vulnerable—but I do not see why proponents of the Bill consider that such principles trump autonomy when it comes to terminally ill adults in England.

[The Minister of State, Ministry of Justice (Sarah Sackman)]

It is a pleasure to serve under your chairship, Mr Dowd. My remarks, as ever, will focus on the legal and practical impact of the amendments to assist Members in undertaking line-by-line scrutiny. In exercising our duties to ensure that legislation that is passed is legally robust and workable, the Government have worked closely with my hon. Friend the Member for Spen Valley to reflect her intent.

Clause 24, as amended by amendments 504 and 505, will mean that individuals who assist a person to end their life in accordance with the terms of the Bill are not subject to criminal prosecution. Currently, it is a criminal offence under section 2 of the Suicide Act 1961 for a person to do an act that is

“capable of encouraging or assisting the suicide or attempted suicide of another person”

and intended

“to encourage or assist suicide or an attempt at suicide.”

That offence attracts a maximum penalty of 14 years’ imprisonment. Amendment 504 would amend clause 24(1) to ensure that a person is not guilty of an offence—[Interruption.]

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[Sarah Sackman]

I was introducing amendment 504, which amends clause 24(1) to ensure that a person is not guilty of an offence by virtue of providing assistance in accordance with, or performing a function under, the Bill—for example, by undertaking the first or second assessment or providing the approved substance. The effect of the amendment is to ensure that a person is not guilty of an offence by virtue of assisting a person seeking to end their own life in accordance with the Bill. The phrase “in accordance with” the Bill is key. For example, where someone accompanies a person to the appointment at which they will self-administer the substance, the amendment would carve out any criminal liability for the accompanying person.

As originally drafted, the wording would have limited the protection offered by subsection (1) to the far narrower situation of the medical professionals providing assistance under clause 18. The amendment will give effect to the policy intent of the hon. Member for Spen Valley of applying that protection to all those who provide assistance in accordance with, or by performing a function under, the Bill. Subsection (2) clarifies that the clause does not override other ways in which a court may find that a person is not guilty of an offence.

Clause 24(3) inserts proposed new section 2AA into the Suicide Act 1961. As amended by amendment 505, that new section ensures that it is not an offence under the Suicide Act to perform a function under the Bill, or to assist a person seeking to end their own life by doing anything under the Bill. That is for the same reasons that I set out in relation to subsection (1). The new section also provides a defence to the offence of encouraging or assisting suicide, where a person reasonably believes that they were acting in accordance with the Bill, and that they took all reasonable precautions and exercised all due diligence to avoid committing the offence.

Taken as a package, the effect of these amendments is to make the Bill legally workable. To do that, it is necessary to ensure that those who assist a person to use the lawful route are not then subject to criminal liability for doing so. Clause 24 clause, taken together with amendments 504 and 505, gives effect to that.

Let me address some of the issues raised by Opposition Members. There was a question as to whether there is any overlap between offences under the Bill—we will come to some of those offences in due course with clauses 26 and 27—and offences that remain on the statute book under the Suicide Act. The short answer to the question from the hon. Member for Reigate, although I know she has written to my Department, and I will ensure that she receives a full written answer, is that it would remain an offence under the Suicide Act 1961 to encourage suicide, including an assisted death under this Bill.

To the extent that any overlapping offences remain, that is not an unusual approach to drafting in the criminal law. However, the effect of the clause is that it would remain an offence under the 1961 Act to encourage someone to commit suicide. Where a person’s “encouragement”—the hon. Member focused on that term—is such that it amounts to what the courts would understand to be pressure or coercion, that could be an offence under clause 26, which we will come to. As I said, it is not unusual to have a degree of overlap in criminal offences. Again, what someone is charged and prosecuted with falls to the prosecutor, depending on the specific circumstances of the case and what would be most appropriate in that scenario.

I also want to address the scenario that the hon. Member for East Wiltshire posited, about whether a pharmacist who acted in a way that amounted to gross negligence manslaughter would benefit from immunity under clause 24(1) as amended. Again, with the important caveat that it will depend on the particular facts of the case, the offence of gross negligence manslaughter is committed where a death is the result of gross negligence in what would otherwise be a lawful act or omission on the part of the defendant, and where the defendant owes a duty of care to the victim—there are a number of actors within the Bill’s process who owe a duty of care to the person applying for assisted dying.

Let us assume for a moment that, in the hon. Member’s scenario, we do have gross negligence manslaughter on the particular facts; in those circumstances, the Government are content that the pharmacist could not be properly said to be performing a function under the Bill, or in accordance with the Bill, so clause 24(1)—the carve-out from criminal liability—would not apply. I think that that covers most of the questions that were posited earlier.

[Danny Kruger]

It may well be that the Minister has clarified the case sufficiently, but will she explain something for my sake? She is suggesting that the pharmacist inadvertently but negligently caused the death of a patient, having performed the duties under the Bill and believing that they were doing so. Surely, they were performing duties under the Bill, so they would potentially be captured by the carve-out.

[Sarah Sackman]

Again, it would depend on the actual facts. However, if they were attempting to perform duties under the Bill, it is highly unlikely that, in circumstances where the facts establish and meet the threshold of gross negligence manslaughter, they could be said to have carried out those duties in accordance with the Bill. They might have been carrying out duties that they thought were what the Bill prescribed, but if they have done that in such a way that it amounts to gross negligence manslaughter, then clause 24(1) would not apply.

The hon. Gentleman makes the point about what the pharmacist in that scenario believes they are doing; that belief has to be reasonable, and that is a test that our courts are well used to applying. That is why the amendments introduce the belief that someone is acting in accordance with the Bill. It is not enough that they think they are doing it; it has to be a reasonable belief. That is an objective standard.

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[Kim Leadbeater]

The amendments ensure that the exclusion from civil liability applies in relation to persons performing functions under the Bill and persons assisting a person seeking to end their own life in connection with the doing of things under the Bill. Importantly, they also rightly exempt from the exclusion from civil liability things done dishonestly or not in good faith, and any liability arising from negligence.

Proposed new subsection (1) in amendment 501 makes it clear that anyone providing assistance to a person to end their own life in accordance with the Bill will not face civil liability simply for doing so. That is crucial in offering clarity and confidence for healthcare professionals, family members or others who might otherwise hesitate due to fear of being sued for assisting a loved one or patient who wishes to end their life as a result of their terminal illness.

However, although we are providing protection, amendment 501 does not allow for unfettered actions without any accountability. Proposed new subsection (1A) ensures that any actions that are dishonest or done in bad faith are not protected from civil liability. Additionally, it states that breaches of a duty of care, such as negligence, are also not exempt from liability. This provision is a critical safeguard. It ensures that, although we provide legal protection for those acting with compassion and integrity, we also prevent exploitation or irresponsible actions, by making it clear that there is no immunity for actions that are dishonest or negligent. That strikes the right balance between compassionate assistance and legal accountability.

The amendment particularly reassures doctors, nurses, and healthcare workers—those who are most likely to be involved in the process. Often, they are deeply committed to palliative care and to supporting patients through their end of life journey, and the amendment ensures that they will not face legal risk if they provide assistance to eligible individuals under the Bill.

[Danny Kruger]

I rise to speak to clause 25 as a whole. First, though, I welcome the amendments tabled by the hon. Member for Spen Valley, because I recognise that she is attempting to fix a problem with the Bill.

However, I am afraid that my objection remains: the fact is that no other assisted suicide law in the world—including in common law jurisdictions similar to our own, such as Australia or New Zealand—has such a clause. There can be no justification for it. If, in the course of providing assistance under this Bill, a doctor commits a civil wrong, they ought to be liable for it in the usual way.

I am glad the hon. Lady has realised that a total exclusion of civil liability is not justifiable, but her change does not go far enough. Her amendments would preserve civil liability where an act was done dishonestly—not in good faith—or for liability in tort, based on the breach of a duty of care, or in other words the tort of negligence. However, it is worth noting that that still excludes civil liability in other respects, and we should ask whether that is justifiable.

First, the clause would still exclude civil liability under a contract, so a patient who has received improper care in breach of contract would not fall within either of the exceptions of proposed new subsection (1A). I take the point that, in the case of negligent care, there would often be a concurrent liability under the tort of negligence, and that that is preserved by new subsection (1A)(b), but that is not the case for other forms of contractual arrangements.

That might be particularly relevant in the situation of subcontracting. An example would be where an outsourcing company is tasked with transporting the lethal substance. Given the risks involved, the contract specifies strict rules that must be complied with, but the company does not comply with those rules. Under clause 25, even as amended, my concern is that they could not be sued for that breach of contract. What is the justification for excluding civil liability in contracts?

Secondly, there is the tort of trespass to the person, which is commonly relevant to medical practice, as it is under such torts that cases where there was no consent or capacity are handled. Those torts can be committed recklessly, but recklessness is not the same as bad faith or dishonesty, so liability could not be established under new subsection (1A)(a). Such torts are also different from negligence—they do not involve a duty of care—so they would not be covered by new subsection (1A)(b). I appreciate that, in many cases, liability could also be established under the tort of negligence, but that would not be the case in all cases. So I ask again: what is the justification for this exclusion?

Finally, and most concerning, we were told in previous debates that if it turned out that the criteria for an assisted death were not met, one could always apply for an injunction. Leaving aside the practical and financial obstacles involved in seeking an injunction at the last minute, which we have discussed before, my concern is that a private law injunction requires that a civil wrong either has been committed or is about to be committed. However, in a case where the doctors consider, in good faith and without negligence, that the criteria have been met, but the family has new evidence to show that that is not the case, the effect of clause 25, even as amended, would be that no civil wrong has been, or would be, committed in that instance, so the test for a private law injunction would not be met.

I might be wrong, so I would be interested to hear whether the Minister or the hon. Member for Spen Valley disagree with that analysis. I would be grateful if they could point out how the private law test for an interim injunction is met in such an instance.

All this could be much simpler if clause 25 were left out of the Bill entirely. Australia and New Zealand do not have such a clause or a civil liability exemption for practitioners of assisted suicide, and I am not aware of that having caused problems for practitioners, so I would be interested to understand why we need such a measure here.

--- Later in debate ---

[Rebecca Paul]

Thank you, Mr Dowd. In that case, I will stop there. I was just making the point that this is important.

Amendment 509 states:

“Proceedings for an offence under this section may be instituted only by or with the consent of the Director of Public Prosecutions.”

I would find it useful to have more clarity around how the offence is used currently, why it is used and why it is appropriate to use it in this instance. Those are all genuine questions. I simply do not know, so I would be grateful for some input. I will leave it there.

[Danny Kruger]

I will be grateful if the Minister or the hon. Member for Spen Valley can explain the situations in which behaviour criminalised by clause 26(2) would not also amount to an offence under section 2 of the Suicide Act, as amended, or indeed to murder. What behaviour would be criminalised here that is not already criminal? Can the hon. Lady think of any instance in which there would be no crime under section 2 of the Suicide Act, but there would be an offence under clause 26(2)? If there is no such instance—I cannot think of one—it strikes me that, at least in respect of coercion and pressure, the offence being created here is redundant and duplicative.

Ministers have rightly stressed the importance of their duty to the statute book. My understanding is that having redundant or duplicative legislation, or indeed duplicative offences, would be inconsistent with our duty to the statute book. One might ask, “What does it matter? Wouldn’t it be helpful to have additional belt-and-braces safeguards in the Bill?” I agree in principle, but I note that when other Members have deployed that argument in relation to adding terms such as “undue influence”, the neutral Ministers have rebuked them by appealing to the duty that we are supposed to have to the statute book. I think the point cuts both ways. Why are we embroidering the statute book with duplicative offences?

[Kim Leadbeater]

I would have thought, given the hon. Gentleman’s views on the Bill, that he would welcome having an actual offence for the purposes of the Bill. Surely that is something that we should all support.

[Danny Kruger]

I support the principle of insisting that inducing people by dishonesty, coercion or pressure to kill themselves should be illegal, but my understanding is that it already is. If it is not illegal, or if there are circumstances in which we need this additional offence that are not already captured by the Suicide Act or the law on murder, I would like to understand what they are. As I say, while it might be helpful to duplicate the offence, I understand that the very sensible convention in our law is that it is not helpful to have two offences relating to the same act because of the opportunity for offenders to play off one offence against the other.

Having duplicative criminal offences can make prosecuting cases harder because the defendant can raise abuse-of-process arguments about whether they have been charged with the most appropriate offence. I understand that the Attorney General’s Office and the Ministry of Justice are therefore usually very keen to avoid duplicative offences.

Let me give an example of the difference in the treatment of the offence. It is proposed that this offence would be subject to a life sentence, which requires the consent of the DPP. But at least in the one case where it overlaps with murder, this would provide a more favourable treatment for the accused than the other obvious charge. Can that be justified?

Duplicating criminal liability by introducing new offences has far-reaching implications that can disturb the coherence and certainty of criminal law. If one introduces a law that gives prosecutors two criminal offences to choose from to cover one act, some prosecutors will choose one and some will choose the other. This is generally undesirable; indeed, it is unprecedented in the case of homicide, where there is every reason to suspect that it could cause chaos for grieving families in search of justice. Such chaos is all too predictable, for a number of reasons.

Let me give an example. A defendant proven to have procured a suicide by deception will be well advised to plead guilty to the offence contrary to section 26(2) and then contest any attempt to introduce murder proceedings. This matters profoundly. A decision to prosecute is an administrative decision and is subject to judicial review. This is not an academic point; it could cause real distress for bereaved families in deep turmoil seeking justice.

Let us imagine that a person, A, is a new coercive and controlling partner of person B and procures by deception their suicide in order to profit from a will. The family of person B grow suspicious and provide the police with a convincing case for a murder prosecution. The CPS agrees and charges A with murder. A accepts that he procured the suicide by deception. On that basis, he appeals, seeking a remedy in judicial review, saying that the CPS should have charged him with a clause 26(2) offence, not murder. The JR is backed by wealthy pressure groups and is beset with administrative adjournments and so on. From the filing of the claim form to the final judgment of the administrative court within the High Court, the case takes 24 gruelling, painful, awful months for the bereaved family.

Throughout this time, the lawyers for A, the defendant, tell him to stay the course and continue to offer the plea to section 26(2), because the family will be exhausted by the reality of litigation. The family have no legal aid, no support, no charity backing and no one interested in their case. The war of attrition in litigation finally defeats them. They advise the CPS that they will accept a plea under the section 26(2) offence, and not the murder that actually occurred. That is the reality of duplicating criminal liability. In that example, A has got away with murder by judicial review.

We must be clear about what we are being asked to do. It is not simple. We are being asked to innovate in the law of murder. We are being asked to do so without the assistance of the Law Commission, without the careful eye of legal or judicial bodies alive to the difficulties of duplicating liability and without the input of any bodies that represent the victims of crime on how this might affect them. There are no Government consultations with such bodies before us. There is no expert assistance from judicial or legal figures on how the good intentions around clause 26(2) might unintentionally lead to serious and undesirable consequences such as those that I have described.

--- Later in debate ---

[Sarah Sackman]

The clause, as amended by amendments 506 to 509, creates two stand-alone criminal offences that apply when a person uses dishonesty, coercion or pressure to induce a person to do a particular act. Subsection (1) creates an offence of inducing another person to make a first or second declaration, or not to cancel such a declaration, by dishonesty, coercion or pressure. That offence, as we heard, will carry a maximum penalty of 14 years’ imprisonment, ensuring consistency with the maximum penalty under the Suicide Act.

Subsection (2), as amended by amendment 506, creates an offence of inducing another person to self-administer and approve substances provided under the Bill, by dishonesty, coercion or pressure. Amendment 506 replaces “in accordance with” with “under” for this offence. That gives effect to the policy intent of my hon. Friend the Member for Spen Valley that the offence should capture those who induce a person to self-administer a substance that, due to some error in the process, has not been provided strictly in accordance with the processes in the Bill. The amendment therefore ensures that the offence in subsection (2) will operate effectively.

Amendment 508 inserts proposed new subsection (4) to establish life imprisonment as the maximum penalty for the offence in subsection (2). That amendment gives effect to the policy intent of my hon. Friend by emphasising that inducing someone to undergo an unwanted assisted death through a legal system established by Parliament is a grave offence warranting the most severe penalty of life imprisonment. Amendment 507 is consequential on amendment 508 and amends subsection (3) to reflect the policy intent of my hon. Friend that the offence in subsection (2) should carry a maximum penalty of life imprisonment, rather than 14 years’ imprisonment.

Amendment 509, which a number of Members mentioned, amends the clause to provide that neither of the offences could be prosecuted without the consent of the Director of Public Prosecutions. That amendment achieves the policy intent of my hon. Friend that the legislation, first, be consistent with the Suicide Act 1961, which makes the same provision for the DPP’s involvement and where such consent is required; and, secondly, to ensure that spurious prosecutions are not brought, for example, by those who may oppose the process that the applicant for assisted dying is undergoing simply because they oppose it, rather than because of any illegality or criminality. That is the function of having the DPP consent baked into the legislation.

To be clear, the terms “coercion”, “dishonesty” and “pressure” remain undefined in the clause. That was an issue that we touched on right back in the early days of clause 1. Without a statutory definition, the terms will carry their natural, ordinary meaning, well understood by the public and the courts alike.

I want to pick up on two other points touched on in various speeches. The first has to do with the issue of coercion, coercive control and its subtleties, the way in which that is dealt with and, indeed, the painfully low conviction rates for domestic abuse and coercion. I am not seeking to make a wider political point beyond the amendments that we are discussing, but the hon. Member for Reigate and my hon. Friend the Member for Bradford West know that the Government have a mission to halve violence against women and girls. I assure the Committee that, in my capacity as Minister of State in the Ministry of Justice, we are intently focused on addressing that, and ensuring that the criminal justice system plays its part more widely. The offences sit in that context.

The other point that I want to address, and touched on earlier, was the one made by the hon. Member for East Wiltshire about our duties to the statute book. It is right that there is a degree of duplication and to acknowledge that, as the Government do in working with the promoter of the Bill to reflect her policy intent. That is not unusual. It is something those in law enforcement, in particular in the CPS, are well versed in. It will be for them to make the appropriate charging decisions, depending on the facts in the particular case.

The function of the offence created under subsection (2) and the penalty attached to it affect the gravity that the promoter of the Bill sought to indicate for the offence of inducing someone to undergo something through dishonesty, coercion or pressure, in the context of what we all acknowledge is a new process. If the Bill is passed, there will be a new legal regime for assisted dying. The manipulation of such a new regime to ends that are criminalised under the provision is reflected in that specific offence. To be clear, the degree of duplication is acknowledged, but the Government’s view is that that is neither unusual nor poses a problem for the CPS.

[Danny Kruger]

That is helpful and makes sense. The only justification for duplication must be that the duplication is only partial, which the Minister has just suggested it is. Not a complete overlap—some cases will fall into one category, but not into the other. I wonder if she could help us to understand with an example that would help the CPS when it makes its decisions about which offence to charge someone under—an example of an offence that would be illegal under this clause and not already illegal under the Suicide Act or the laws of homicide.

[Sarah Sackman]

I am not going to answer that question directly, because I will not get into hypotheticals, which would be a test. I understand the question the hon. Gentleman is asking. As I said, the policy intent here—the policy of including the specific offence within the context of this new legal regime and the signal that doing so would send to all those participating in this regime by attaching the severest penalty of life imprisonment to the offence created under subsection (2)—has been a matter for the Bill’s promoter. The Government have worked with her to create a workable regime.

I will not proffer on my feet a hypothetical factual scenario that would be caught by this offence, but would not be caught under other offences that exist in our criminal law. The point is that overlapping criminal offences exist in our criminal law. That is not unusual. The CPS is well versed in dealing with that. The charging decisions will be for the CPS, with the consent of the DPP. Satisfying the purpose of having criminal liability—to catch those who perpetrate what would be, in any view, a heinous crime, and to deter such crime—would be discharged by the drafting that we have here.

[Danny Kruger]

I respect the difficulty of the position that the Minister is in, but I am afraid that we have to consider hypothetical scenarios, because we are creating law. Does she acknowledge that, even if she cannot imagine, or cannot suggest to us, a case that falls under the provisions of this clause, but is not caught by the Suicide Act or law of murder, someone who is charged with murder could plausibly claim that, in fact, they should have been charged with the offence under clause 26(2) of the Bill? Plausibly, they could make a case, perhaps through judicial review, that the charging decision was wrong, and we would have months of litigation before we even got to the prosecution beginning. Can she envisage such a scenario happening?

[Sarah Sackman]

I find that highly implausible; the likelihood is that the CPS will apply the appropriate charging decision to fit the facts as they have arisen. If they have arisen within the context of this legal regime, for someone acting nefariously, dishonestly or coercively about assisted dying, the charge under this clause would be the appropriate one. I find it implausible that the other scenario would arise. As I said, the CPS is well versed in applying the appropriate charging decision to the appropriate crime on the facts of the crime. I will not speculate or hypothesise on what that might be.

[Sarah Sackman]

That is a good example. One knows from charging decisions that often, on indictment, one might have multiple offences to capture the totality of the criminal behaviour. Some of those may be made out, some of them may not. What the Government have sought to do here, working with the Bill’s promoter, is to reflect her policy intent: to convey the gravity of the offence in this wholly new legal regime. As the right hon. Gentleman pointed out earlier, we are sanctioning and decriminalising conduct that has previously been criminal, while ensuring that this offence captures what would be criminal under the new legal regime. From the promoter’s point of view, it is important to signal that the Government have worked with her on this, and the Government’s position is that the result, in this amended form of the Bill, gives both some satisfaction to her policy intent and is compatible with how our criminal law routinely works, so it is workable from the point of view of the CPS.

[Danny Kruger]

I acknowledge the point that the Minister is making. To the point made by my right hon. Friend the Member for North West Hampshire, we are talking not about two categories of offence within the same legal framework, namely GBH, but about two different legal frameworks altogether, the law of homicide and the law on assisted dying. Does the Minister agree that the clause as it is to be amended will create the opportunity for a murderer who would otherwise be convicted of or charged with murder to claim that, in fact, he was committing an offence under the assisted suicide law? We are creating a new opportunity for someone who would otherwise, were it not for this law, be legitimately charged with murder to claim that they are committing this offence instead.

[Sarah Sackman]

I do not consider that through this amended form of the Bill—if the Committee chooses to vote that way—we will have created an opportunity that could be exploited in that way. The hon. Gentleman said earlier that there has not been consultation on that point, but there has been close working of highly experienced Government lawyers with the promoter to reflect her policy intent.

What the clause interlocking—and indeed overlapping, as I have acknowledged—with the Suicide Act does is prescribe new forms of criminal offence and liability that will capture criminal behaviour, which is ultimately what the measure is about. Tellingly, the punishment attached to the clause 26 offence is the same as the maximum punishment for murder, that of life imprisonment, which is indicative of the gravity of the offence that would be caught.

--- Later in debate ---

[Kim Leadbeater]

These amendments relate to the falsification or destruction of documentation and are very straightforward. Amendment 510 makes a drafting change to align the wording of subsection (1)(b) with wording used elsewhere in the clause. Amendments 511 and 512 clarify that the offence under subsection (2) relates only to an opinion about a matter relating to a function under the Bill rather than to the person. Amendment 513 clarifies the scope of the offence under subsection (3) by providing that the offence occurs where a doctor fails to comply with a notification or recording obligation in relation to the cancelling of a first or second declaration.

The amendments significantly improve the clarity, scope and precision of the offences in clause 27, align it with the language used in the rest of the Bill and ensure that it is more consistent. They refine the original provisions, focusing on serious misconduct and offences covered by the clause.

[Danny Kruger]

It is good to see you this evening, Mrs Harris.

I have no objection to the hon. Lady’s amendments. I think there is value in broadening the offence to include actions performed intentionally or recklessly, as that is critical for patient safety. Given the finality of the result of assisted death, there should not be any room for carelessness, and liability must ensure that not only deliberate misconduct but negligent record keeping is subject to legal scrutiny. I want to put on the record the evidence we had from the British Journal of Nursing, which has documented the serious risks of poor record keeping in medical practice. That demonstrates how inadequate documentation contributes to clinical errors.

I think the hon. Lady recognises that this is not just a matter of bureaucratic tidying-up. The principle is straightforward: if the decision to assist in ending a life is to be lawful, the documentation supporting it must be unimpeachable. Expanding liability to cover reckless documentation is entirely consistent with existing legal and professional standards in the UK medical profession.

[Sarah Sackman]

It is a pleasure to serve under your chairmanship, Mrs Harris. I will be brief. As we have heard, clause 27 creates various stand-alone criminal offences regarding the falsification or destruction of documentation related to assisted dying. Amendment 510 replaces “wilfully” with “intentionally or recklessly” in subsection (1)(b), to align the wording with that used elsewhere in the clause. The Government have worked with my hon. Friend the Member for Spen Valley on the other amendments, to tighten up and improve the workability and operability of the Bill.

Amendment 510 agreed to.

Amendments made: 511, in clause 27, page 16, line 22, leave out “that person” and insert “a relevant matter”.

This amendment and amendment 512 clarify that the offence under subsection (2) relates only to an opinion about a matter relating to a function under the Bill.

Amendment 512, in clause 27, page 16, line 23, at end insert—

“(2A) In subsection (2) “relevant matter” means a matter relating to any function under this Act.”

See the statement for amendment 511.

Amendment 513, in clause 27, page 16, line 24, leave out subsection (3) and insert—

“(3) A person commits an offence if they intentionally or recklessly fail to comply with an obligation under—

(a) section 14(1A) or (2) (notification of cancellation of declaration), or

(b) section 17 (recording of cancellations).”—(Kim Leadbeater.)

This amendment clarifies the scope of the offence under subsection (3), by providing that the offence occurs where a doctor fails to comply with a notification or recording obligation in relation to the cancelling of a first or second declaration.

--- Later in debate ---

[Sojan Joseph (Ashford) (Lab)]

I rise to speak in support of these important amendments. The prescribing, dispensing and transporting of these medications is very important. In my experience, and as the Care Quality Commission reports, many healthcare settings have issues with the storage and disposal of medications. Amendment 442 is a straightforward one that would change “may” to “must”. I think it is right that the Secretary of State “must” by regulations make the provisions listed.

In oral evidence, we heard of one incident in Australia where the patient was given medication and did not take it but passed away, and then her partner took it and died. Amendment 444, which would provide that the substances must not be left unsupervised by a medical practitioner at any time, is very important. I urge the Committee to accept it, and amendment 445, which would also change a “may” to a “must”. These are straightforward but important amendments that seek to safeguard relatives, staff and the public. We must not leave these medications unattended at any time.

[Danny Kruger]

It is a pleasure to follow the hon. Members for Ashford and for Banbury. I entirely concur with their points, particularly those that derive from the expertise of the hon. Member for Ashford.

This is a very important group of amendments, which concern what is in a sense the heart of the Bill—the management of the lethal drugs. The question of what drugs we are talking about remains open, which is a cause of deep concern to me, but whatever they happen to be, we need to make sure that the management— the regime of dispensing, transporting and prescribing —is safe.

I will not reprise the details of all the amendments. Their purpose is to ensure a stricter, more transparent and safer regime for the management of the drugs. Amendment 521, which is in my name, would ensure that the regulations that we arrive at are laid before Parliament, and debated and approved by both Houses of Parliament. Amendment 485 in the name of the hon. Member for York Central would address the same issue.

The amendments seek to address the dangerous absence of an adequate regulatory regime in the Bill for the lethal drugs and approved substances. Once again, significant questions are ignored in clause 28. Ministers will be given the power to make regulations for the prescription, dispensing, transportation, storage, handling and disposal of approved substances. The clause is envisaged as sufficient for an entire regulatory regime for approved substances. It is just 87 words. It is as if it is an afterthought—as, it seems, is the role of pharmacists, by the way.

The regulations are subject to the negative procedure, which means they are highly unlikely to be debated at all or voted upon, for reasons given in my earlier complaints about the use of the negative procedure. Indeed, it is discretionary whether the regulations will be made at all.

Last night, the Minister told us that the Government objected to the Medicines and Healthcare products Regulatory Agency approving the drugs or substances in amendment 465, which I had tabled. He said:

“The Government’s assessment of amendment 465 is that it would significantly impact the legal and operational delivery of the Bill. The Government anticipate that all substances used for assisted dying will have existing licences from the Medicines and Healthcare products Regulatory Agency for other indications, but the amendment would require the approved substances to be licensed by the MHRA specifically for the purpose of assisted dying.”––[Official Report, Terminally Ill Adults (End of Life) Bill Public Bill Committee, 18 March 2025; c. 1224.]

That was indeed the purpose of that amendment.

If there is anxiety that I am somehow straying from the relevant clause and amendments, which I detect from Members who are clearly looking forward to their dinner, I do insist—[Interruption.]

[The Chair]

Order. Mr Kruger, can we please stick to the point?

[Danny Kruger]

Sorry, Mrs Harris. I do not appreciate the sense of impatience in the Committee; these are very important matters.

[The Chair]

Can we just stick to the point, please?

[Danny Kruger]

Absolutely; that is what I am doing.

I referenced the debate we had last night, which I hope is within scope, because the suggestion has been either that the Bill insufficiently addresses the need for a regulatory regime for the approval of drugs specifically for the purpose of assisted dying or, as the Government are saying, that the drugs’ existing licences are sufficient for these purposes. Is the Government’s position that there will be no regulator involved and that this will sit entirely with the Minister, as in this clause? If regulators are to be involved, will further legislation be needed?

I will not repeat evidence from the Royal Pharmaceutical Society concerning the legal arrangement, but I will refer to evidence submitted by Máire Stapleton, a pharmacist with more than 30 years’ experience in clinical governance, who made this point:

“Based upon a preliminary review of current published data, it is difficult to see how the regulatory and professional standards for prescribing and dispensing unlicensed drugs can be met.”

There is further evidence to that effect from the Royal Pharmaceutical Society, pharmacists and barristers.

Given that there is so little on the face of the Bill and no guardrails for the use of the power that will be given to the Secretary of State, why is the negative procedure judged appropriate for something of this significance? It cannot be argued that the negative procedure is needed because the amendments might need to be made quickly and frequently—that cannot be the case, because we have not yet authorised the regime. The negative procedure would allow the Secretary of State quite unjustified ability to change these processes without any requirement for a parliamentary debate or vote.

Lord Hermer, the Attorney General, has said that this new Government will take a new approach, considering the

“real need to consider the balance between primary and secondary legislation, which in recent years has weighed too heavily in favour of delegated powers.”

He criticised the previous Government’s

“excessive reliance on delegated powers, Henry VIII clauses, or skeleton legislation,”

which

“upsets the proper balance between Parliament and the executive. This not only strikes at the rule of law values I have already outlined, but also at the cardinal principles of accessibility and legal certainty.

In my view, the new Government offers an opportunity for a reset in the way that Government thinks about these issues. This means, in particular, a much sharper focus on whether taking delegated powers is justified in a given case, and more careful consideration of appropriate safeguards.”

I conclude with this question to the Minister: has she considered the advice of Lord Hermer in coming to a view on the appropriateness of this clause and the way that these powers have been taken? As the Hansard Society notes,

“the Government has an overriding duty of care to the statute book. As such, any powers that may accrue to Ministers because of a Private Member’s Bill must be acceptable to the Government. It must therefore take a view on the powers and their scrutiny”.

Has the sponsor or the Minister consulted with the Royal Pharmaceutical Society on the sufficiency of this power? Has sufficient work been done to look at the workability and operationalisation of this clause? I hope the Committee will join me in supporting these amendments.

[Stephen Kinnock]

It is a great pleasure to serve under your chairship today, Mrs Harris. Amendment 442 would require the Secretary of State to make regulations for the prescribing, dispensing, transporting, storage, handling and disposal of approved substances, including the keeping of records relating to those activities. That differs from the Bill’s current approach, which enables the exercise of a power by the Secretary of State to make such regulations.

In practice, where the Secretary of State makes regulations specifying substances for the purpose of the Bill under clause 20, they will necessarily also make regulations for the prescribing, dispensing and transporting of said substances under clause 28. However, requiring, rather than enabling, the regulations under clause 28 to be made may reduce flexibility in terms of their timing as there is a range of technical issues that may need to be resolved—for example, clinical questions on how an approved substance should be prescribed or dispensed.

Amendment 443 would mean that regulations for the prescribing and dispensing of approved substances could be made only in relation to substances that have already been approved by

“the Medicines and Healthcare products Regulatory Agency and either the National Institute for Clinical Excellence or the All Wales Medicines Strategy Group”.

That may impact the operational delivery of the Bill as the drafting is ambiguous. One possible interpretation is that the amendment may require the approved substances to be licensed by the MHRA specifically for the purpose of assisted dying. That would require additional powers to amend medicines regulations, which are not currently provided for in the Bill. NICE and the All Wales Medicines Strategy Group typically make recommendations only on medicines that have already been proven to be safe and efficacious. They do not approve medicines in the way the amendment implies, and this could infringe upon the role of the MHRA.

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[Stephen Kinnock]

Amendment 445 would require that the Secretary of State make regulations about enforcement, including provision of imposing civil penalties, when making regulations for prescribing, dispensing, transporting, storage, handling and disposal of approved substances, including the keeping of records relating to those activities. That would be a change from the current approach in the Bill, which gives a power to the Secretary of State to make such provisions. In practice, where the Secretary of State makes regulations specifying substances under clause 20, they will necessarily make regulations under clause 28 for the prescribing, dispensing and transporting of said substances, and on enforcement, which would include imposing civil penalties.

[Danny Kruger]

Further to the intervention from the hon. Member for Bradford West, I would like to understand whether the Minister envisages an independent regulator of any sort being responsible for overseeing the regime? We currently do not know what that will be—a future Secretary of State will design it—but does he envisage that there will be some sort of regulatory body with that job, and if not the MHRA, who?

[Stephen Kinnock]

We will at some point get to clause 32, which is about the way in which the system will work, specifically with the NHS, and the role of regulation will absolutely be debated in that context. My sense is that it would be best to confront that issue when we debate clauses 32 and 39. Officials are currently working with the promoter of the Bill, my hon. Friend the Member for Spen Valley. We know that her policy intent is for the service to be an integral part of the NHS, but with some flexibility in the way it is delivered; we have briefly touched on that in previous debates. As an integral part of the NHS, it will have to be a regulated service, based on the foundations of the way in which the NHS is regulated more broadly. I think the answer to the hon. Gentleman’s question is basically yes, but the right place to debate it and potentially amend the Bill would be in clauses 32 to 39.

[Danny Kruger]

We look forward to the amendments that the Government are working on, but, as part of that process, does the Minister envisage that there will be amendments to NHS legislation itself?

[The Chair]

Order. We need to discuss the amendment, not speculate about the future.

[Kim Leadbeater]

I will speak briefly about amendments 485 and 521, on which I will respectfully disagree—not for the first time—with the hon. Member for East Wiltshire. I believe the negative procedure is perfectly adequate in matters of this kind. We had a similar debate the other day.

I will also speak to amendments 442 and 445 in the name of my hon. Friend the Member for York Central. Although I take on board the comments of the Minister about time pressures, I am minded to support both these amendments. Regulations are important and I have no problem with placing the duty on the Secretary of State in those two instances.

[Danny Kruger]

It might appear a procedural issue, but does the hon. Lady acknowledge that there is a profound difference between the negative and affirmative procedure? Why is she content that the regime for the regulation of these lethal drugs, which are at the absolute core of her Bill, be subject to the discretion of the Secretary of State, without any likelihood or any real possibility of any sort of debate in Parliament? Why should this not be through the affirmative procedure?

[Kim Leadbeater]

I am not aware of any situation in which we debate the drugs for any other type of medical provision or healthcare. I appreciate the gravity of the situation but, with all due respect to colleagues, we are not best placed to make those kinds of decisions and it is unnecessary for us to have that debate. Clinicians and experts in pharmacology and medicines are best placed to do that, under the guidance of the Secretary of State.

[Danny Kruger]

Nevertheless, the hon. Lady is proposing that this passes through Parliament, just through the negative procedure. If she thinks there is an appropriate rubberstamp by Parliament—that Parliament needs to approve this regime—why should it not have the opportunity to debate it?

[Kim Leadbeater]

As I have said, I think the negative procedure is the correct level of parliamentary involvement in that process.

Amendment 442 agreed to.

Amendment proposed: 443, in clause 28, page 17, line 4, after “substances” insert

“as approved through the Medicines and Healthcare products Regulatory Agency and either the National Institute for Clinical Excellence or the All Wales Medicines Strategy Group processes”.—(Sean Woodcock.)

This amendment requires any regulations made about the prescribing and dispensing of approved substances to be on substances approved through the Medicines and Healthcare products Regulatory Agency and either the National Institute for Clinical Excellence or the All Wales Medicines Strategy Group processes.

Question put, That the amendment be made.

--- Later in debate ---

Inquests, death certification etc

[Danny Kruger]

I beg to move amendment 522, in clause 29, page 17, line 14, leave out subsection (1).

In a letter to the editor of The Telegraph, the former chief coroner of England and Wales, Thomas Teague KC, wrote that clause 29

“would prohibit a coroner from investigating any death where the duty to do so arises only because the deceased died as a consequence of the provision of assistance in accordance with the Bill. But for that clause, the coroner would be under a statutory duty to investigate such a death and, if satisfied at inquest that the deceased had used an approved lethal substance to end his or her life with the intention of doing so, would be obliged to record a conclusion of suicide.

Since the coroner’s jurisdiction affords a powerful deterrent against misfeasance, the public may wonder why the Bill proposes to abandon such a robust safeguard. The approval of the High Court is no substitute as it would be given in advance of death and could offer no assurance”

—we have scrapped the approval of the High Court, but it would have been no substitute, and it will be the same for the panel system—

“that the assistance had been provided in strict compliance with the law or that the circumstances of the case had not changed following the court’s declaration.

If the Bill becomes law, who will provide the necessary posthumous judicial scrutiny of these unnatural deaths?”

That is a powerful suggestion from the former chief coroner.

--- Later in debate ---

[Kim Leadbeater]

That is indeed what would happen under the Bill as it stands.

[Danny Kruger]

The concern is that it should be automatic. I just cite Professor Ahmedzai’s recognition of the frequent necessity, or the distinct possibility, of a referral to the coroner being appropriate. I suggest that it should happen as a matter of course. I would be grateful to understand from the hon. Lady or the Minister under what circumstances they feel it would be appropriate for a coroner to be involved. The difficulty is that we are putting a lot of emphasis on the role of the local medical examiner to decide whether it should be appropriate for the coroner to consider a case; I suggest that they should consider all cases.

The obligation on coroners need not be over-burdensome. Some coroner’s inquests can be dealt with in as little as 20 minutes if matters are simple and not in dispute, which they would be in the great majority of the cases we are talking about. The presence of this jurisdiction—the ability of the coroner to investigate—would be a most valuable safeguard. It would help to identify whether matters have gone wrong in the act of self-administration and the process of dying, which could significantly assist whatever regulatory regime—we are yet to discover that—oversees the process. It could assist the continuous improvement of the regime.

It would also help to identify issues relating to misdiagnosis, which we know happens often. It is remarkable—and worth pointing out in response to the suggestion that terminal diagnoses are always accurate—that one study found, after autopsy, that one in four cases had been misdiagnosed. Doctors might say somebody is dying of a certain condition, but it turns out they were not.

I take the point that a coroner would not be prohibited by clause 29(1) from launching an investigation in appropriate cases, but given that we do not know what we do not know, it might be hard to decide when that is required. With a new scheme like this, it would be best to start with an investigation in every case. If, in a few years’ time, it appears that the safeguard is not needed, a future Parliament could change the law to reduce it, but I implore the Committee to consider the idea that we should start with the safest Bill we can.

[Sarah Sackman]

Under the Coroners and Justice Act 2009, coroners have a duty to investigate and certify deaths that are reported to them. That duty is triggered when they have a reason to suspect that the deceased died a violent or unnatural death, the cause of death is unknown, or the deceased died while in custody or otherwise in state detention. There are also regulations made under the powers of the 2009 Act that require medical practitioners to notify such deaths to the coroner.

Clause 29(1) disapplies the coroner’s duty to investigate in the case of an assisted death that has been carried out in accordance with the Bill’s provisions. In practice, that would mean the assisted death would instead be certified by an attending practitioner—the doctor who has attended the patient—and scrutinised by an independent medical examiner working in the NHS. Therefore, the attending practitioner and medical examiner, rather than the coroner, would certify the cause of death. It would remain open to anyone—such as a family member or a medical practitioner who has interacted with the deceased and has concerns—to report a death to the coroner if they had concerns that it had not occurred in line with the provisions of the Bill.

Amendment 522 would remove the disapplication of the coroner’s duty to investigate in relation to assisted deaths, essentially reversing the Bill’s current provisions. Consequently, given that assisted deaths are inherently unnatural, the amendment would require that the coroner has a duty to investigate each and every assisted death and then certify the cause of death. To answer the hon. Member for East Wiltshire’s point, the bereaved family would, as I have said, be able to raise any concerns with the medical examiner, and the coroner’s duty to investigate would be triggered if they suspected that death had not occurred in line with the process prescribed.

It is important to note that medical examiners follow their own structured process of investigation. They review medical records, consult practitioners involved in the case and then apply the criteria set out from the Notification of Deaths Regulations 2019 to determine whether the death meets the threshold for a coroner referral. In doing so, they would proactively speak to family members, thereby providing the opportunity for any concerns to be raised; if there are any, they would make the referral to the coroner. I hope that assists the Committee.

[Kim Leadbeater]

I will be very brief. My understanding is—I think the Minister said this—that the attending practitioner, the medical examiner or anybody else, including family members, could refer to the coroner if they felt it was necessary or suspected anything untoward. If that is the case, I am content that the Bill is fit for purpose as it stands.

[Danny Kruger]

I will respond quickly. My concern is that, as Thomas Teague said, without clause 29 the coroner would be under a statutory duty to investigate. I recognise that there is an opportunity for an investigation if a family member or the medical practitioner decides to refer it to the coroner. It is unlikely—although they might—that the medical practitioner who has overseen the death would suggest that they themselves had somehow failed in their duty or that there had been a complication they could not have dealt with.

The fact is that the only way a coroner would get involved under the Bill as it stands is if they conclude that there is something wrong on the basis of not knowing what has happened, because they have not performed any investigation. The purpose behind the amendment is to ensure that there is a statutory duty for the coroner to review the death. It is also a point of principle that it is appropriate to record the death as suicide, because that is what has happened—assisted suicide. Nevertheless, given the state of the debate, and that I suspect I am not in the majority in supporting the amendment, I will not press it to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Danny Kruger]

I think the hon. Member for Penistone and Stocksbridge meant the previous Conservative and Liberal Democrat Government—just to be strictly accurate.

[Sarah Olney]

I expect the hon. Lady did, but since none of us in the room was a member of that Government—I think—or indeed Members of Parliament at the time, I do not know how hon. Members want me to respond to that. It remains the case, I believe, that socioeconomic status is not currently a protected characteristic under the Equality Act. If anyone wants to reopen that debate, I am sure there would be an appetite for it.

--- Later in debate ---

[Sarah Olney]

I know: the Barnes ward in my constituency is one of the most unequal wards in the country, so I fully appreciate the right hon. Gentleman’s point. As I say, that is the socioeconomic indicator that I have for now, thanks to the failings of our predecessors to include it in the Equality Act, but I am open to amendments on Report if anybody has something more compelling. I do think that it really matters that we look at the socioeconomic status of people who are seeking an assisted death, and I welcome feedback—and, as I say, further amendments—on how that particular part of clause 29 could be improved.

Lastly, I included whether someone has a disability, which obviously has come up many times in the written and oral evidence. That is why I specified those characteristics in response to the evidence that we received, and why I am keen to press amendment 273 to a vote.

Amendment 273 agreed to.

[Danny Kruger]

I beg to move amendment 446, in clause 29, page 18, line 9, at end insert—

“(4) The Secretary of State must, by regulation, specify the data sets which must be made available by the Registrar General for England and Wales.

(5) Any regulations made under subsection (4) are subject to the affirmative procedure.”

This amendment requires the Secretary of State to specify in regulations the data sets which are to be made available by the Registrar General for England and Wales.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 486, in clause 29, page 18, line 9, at end insert—

“(4) A report provided under subsection (3) must include statistical analysis of—

(a) demographic information relating to those who have received assistance under the Act, including breakdowns by the protected characteristics defined under section 4 of the Equality Act 2010;

(b) the length of time between the taking of approved substances and the time of death; and

(c) any complications that occurred as a result of the administration of a substance under the provisions of this Act.”

This amendment determines the data to be collated in the reports of the Registrar General.

Clause stand part.

[Danny Kruger]

These amendments were tabled by the hon. Member for York Central. As discussed, clause 29 requires the Registrar General to

“prepare and lay before Parliament a report providing a statistical analysis of deaths”

arising. We have spoken before about the paucity of data from other jurisdictions and the problems arising when data is not collected from the start; when data is collected only in relation to one thing, such as disability in Canada; when data collection is suddenly discontinued, as in Washington state as I understand it; or when data is insufficiently granular, so that we get only the headlines. I therefore think that this approach is valuable, and I welcome the Committee’s decision to support amendment 273 tabled by the hon. Member for Richmond Park. Amendments 446 and 486 would ensure that we fix those problems from the start.

Amendment 446 would give the Secretary of State the power to specify the datasets that must be made available, and those must be approved by Parliament. MPs would then be able to interrogate what data we are collecting and what questions that enables us to answer. Ensuring that that is determined by regulation places it in law, and ensures ministerial responsibility and parliamentary oversight.

Amendment 486 sets out the data that must be included. That includes demographic information, including breakdowns by protected characteristics—and I acknowledge the conversation that has just been had on that topic—and the length of time between the taking of the approved substances and the time of death. It strikes me that that is a very important consideration. I hope that that would be specified in the data that the Registrar General will provide, but that is not clear at the moment. It is also vital that any complications are properly reported—not just recorded, but reported.

I do not propose to push these amendments to a vote; I think that the argument has been sufficiently made. I am grateful to the Committee for supporting the previous amendment. However, I wish that things were otherwise and that we were specifying more clearly what data will be collected. I hope that perhaps this debate will encourage the Registrar General to ensure that the most comprehensive data is presented to Parliament.

[Sarah Sackman]

In light of the hon. Gentleman’s remarks, I do not have anything further to add, other than to note what he has said.

[Kim Leadbeater]

I have nothing to add.

[Danny Kruger]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29, as amended, ordered to stand part of the Bill.

Clause 30

Codes of practice

[Naz Shah]

I beg to move amendment 447, in clause 30, page 18, line 12, leave out “may” and insert “must”.

This amendment requires the Secretary of State to issue Codes of Conduct.

--- Later in debate ---

[Jack Abbott]

We all know that inequitable access to good quality health and palliative care is a massive issue across the country. People in certain communities—for example, those living in areas of high deprivation, those from black, Asian and minority ethnic communities and those from inclusion health groups, such as the homeless—already experience significant challenges in accessing quality care.

We have a duty to ensure that anyone meeting the eligibility criteria who wishes to seek an assisted death under the Bill can do so. We must therefore ensure that the requirements for which forms of proof of identity are acceptable do not exacerbate existing inequalities of access and prevent those who would otherwise meet the eligibility criteria from seeking an assisted death should they choose to.

The question of which forms of proof of identity are acceptable is therefore essential, as we know that photo ID requirements can present additional barriers to certain demographics and communities. Data from the Electoral Commission following the 2023 local elections found that while only 3% of all non-voters said that they did not vote because they did not have the required ID, that figure was 8% for unemployed non-voters and 9% for disabled non-voters who reported being “limited a lot” by their disability or health condition.

The data also found that awareness of ID requirements was lower among those without an accepted form of ID—only 74%, in contrast with 92% of the population overall. Awareness of the requirement was also lower among young people and those from black and ethnic minority communities. Clearly, a photo ID requirement could present barriers to equitable access to assisted dying. We must ensure that requirements about which forms of proof of identity are acceptable do not create new inequalities of access.

The requirement for proof of identity has been included in the Bill for a good reason, because it is a necessity and a critical safeguard. Ensuring that the Bill has the requisite safeguards for assisted dying to be safely implemented is essential to what the Committee is doing. It is therefore important to get right the question of what forms of proof of identity are acceptable for someone to access assisted dying under the Bill. We must also ensure equity of access to the service without diluting critical safeguards.

Clause 6 says that the regulations regarding the forms of proof of identity that are acceptable are subject to the negative procedure, but the issue is too important to be left to that negative procedure without sufficient parliamentary scrutiny. By including the requirements for which forms of proof of identity are acceptable in clause 30, the amendment would rectify that. It would entail that the regulations pertaining to which forms of proof of identity are acceptable under clause 6 are subject to the affirmative procedure and that, prior to the Secretary of State issuing a code of practice in relation to the question, they would have to consult such persons as they considered appropriate.

By agreeing the amendment, we would guarantee that the question of which forms of proof of identity are acceptable is given the requisite consideration. That would ensure that the requirements do not act as a barrier to equitable access to assisted dying, without diluting the safeguards that the requirement inserts into the Bill.

[Danny Kruger]

I want to quickly explain that my amendment 523 is consequential on amendment 447, but there is drafting issue. I will not go into the details but, if amendment 447 is made, as I understand it will be, my amendment 523 is not necessary. I would be grateful for the Minister’s guidance: if he has been advised by parliamentary counsel that the clause as amended by amendment 447 is okay and there is no need for amendment 523, I do not propose to press it to a vote.

[Stephen Kinnock]

This group of amendments relates to clause 30 of the Bill and the codes of practice that may be issued by the Secretary of State.

As the Bill is drafted, the Secretary of State may issue one or more codes of practice in connection with arrangements pertinent to the assisted dying process. Amendment 447 requires the Secretary of State to issue such codes, substituting “must” for “may”. As such, codes of practice would need to be issued for all matters listed in clause 30(1).

Amendment 394 has the effect of broadening to Secretary of State’s power to issue codes of practice, explicitly enabling the Secretary of State to issue guidance in connection with

“information and support to persons with learning disabilities who are eligible to request assistance”

under the Bill, including information and support about the role of advocates. I note that under the Equality Act 2010, health providers are already under a duty to make reasonable adjustments in the provision of services, including for persons with a learning disability. That duty includes taking steps to provide information, including on what support services are available.

As drafted, clause 30(1)(c) provides that the Secretary of State may issue codes of practice on

“the arrangements for ensuring effective communication in connection with the provision of assistance…including the use of interpreters”.

Amendment 448 provides that, if the Secretary of State issues codes of practice that include the use of interpreters, those interpreters should be “registered and qualified”. The amendment would limit those who are able to translate to only those who are registered and have a recognised qualification. However, the amendment does not state who or what such a registration would be with, or what would constitute a recognised and appropriate level of qualification.

Amendment 534 adds to the list of codes of practice that the Secretary of State may issue. The addition is a code of practice on the acceptable forms of proof of identity when a person makes a first declaration. Clause 6(3) of the Bill already provides a regulation-making power that sets out the acceptable forms of proof of identity. Amendment 534 would give the Secretary of State a power to make codes of practice about how someone can ensure they are compliant with the requirements set out under clause 6(3). The amendment has little practical effect, because clause 30(1)(e) already provides a wide power for issuing codes of practice, providing that the Secretary of State may issue codes of practice on

“such other matters relating to the operation of this Act as the Secretary of State considers appropriate.”

Amendment 523 allows the Secretary of State to issue further codes of practice at his discretion, should they not be covered by the preceding subsection (1) of this clause. The Bill’s promoter has said she is minded to support amendment 447, and the hon. Member for East Wiltshire asks whether, if amendment 447 is incorporated into the Bill, that renders amendment 523 unnecessary or surplus to requirements. I am not entirely sure, so I will quickly check while the Bill’s promoter is making her remarks and come back to him immediately.

--- Later in debate ---

[Daniel Francis]

My hon. Friend knows my concerns but she knows that I will be supporting the amendment this evening.

Advocates must have an understanding of the available end-of-life options and be able to communicate clearly and explain to patients the medical treatments available: palliative care, social care and assisted death. That is quite complex. As I have said previously, my own experience of mental capacity relates to my daughter: she would never have the capacity to be able to make such a decision. But on a daily basis, including this morning, I have to explain a two or three-point decision-making process. It is vital that advocates are there and that they have the training.

For many people such as my daughter, who is almost blind as well as being learning disabled, there are additional communication skills given that they have those extra sensory difficulties. It is vital for people such as Mrs Cook’s daughter, who might be vulnerable to influence, that the advocate must be able to explain all the options clearly without pressurising the person down one route. I believe the amendment will provide important support to those with less capacity or difficulty in understanding all the options in front of them.

As I have said, the two things that I have banged on about consistently in this process have been about learning disability and mental capacity. There has been a conflict for me, even with this amendment, but I am confident that the amendment tabled by my hon. Friend the Member for Penistone and Stocksbridge comes from a very good place. We will come to this next week but, like my hon. Friend, I have consistently listened to Mencap’s evidence, which also talked about reviewing the Bill at an earlier stage than is currently envisaged. That is why I have tabled amendments 493, 494 and 495 for next week.

My view is that if the Bill becomes law, the system will work well if the regulations are implemented correctly. I will support the amendment tabled by my hon. Friend the Member for Penistone and Stocksbridge; I thank her for bringing it forward. I know that my hon. Friend the Member for Spen Valley has listened hard, and I am grateful. I think there will be a degree of unanimity this evening.

[Danny Kruger]

I pay tribute to the hon. Member for Penistone and Stocksbridge for the amendments that she tabled and to the work that she has been doing on our Committee. I regret her victory over my friend, the former MP for Penistone and Stocksbridge, but the hon. Lady is bringing a lot to Parliament and to this Committee.

I am happy to follow the hon. Member for Bexleyheath and Crayford in supporting the amendments. I do not know whether the hon. Lady is in a position to respond with a further speech or by intervening, but I have some concerns about their operation. I recognise that the role of the independent advocate exists in our system already, very usefully and importantly: I see its value and appropriateness for an assisted dying regime. But if the amendments are accepted, we will be introducing the role of the independent advocate with the sombre recognition that it is necessary, in consequence of a Bill that will allow doctors to discuss ending the patient’s life as an option with anybody, no matter how well-equipped or ill-equipped that person may be to handle such a conversation on their own, and no matter how old they are—they could even be 18 years old. I support the amendments, but I do so in recognition of the very significant dangers that I think the Bill represents to all potential applicants.

I want to ask the hon. Member for Penistone and Stocksbridge, or perhaps the Minister or the Bill’s promoter, whether they feel that the amendments go to the heart of the concerns raised by the hon. Member for Bexleyheath and Crayford. I am pleased to hear that he is satisfied and will support the amendments, although I echo some of the suggestions of concern that he just made.

New clause 25 makes it clear that the advocate is there to provide support if the person

“is seeking to understand options around end of life care, including the possibility of requesting assistance to end their own life”.

Amendment 517 addresses the need for a code of practice when a qualifying person is requesting assistance to end their own life.

My question is whether the new clause and the amendment fully cater for a situation in which that individual is not requesting assistance to end their own life—when they are not seeking to explore that particular option. Given that we have retained the right of medical professionals to raise the possibility of assisted dying unprompted with patients, I am concerned about whether, as I think the hon. Member for Bexleyheath and Crayford implied, the medical professional initiates the conversation, or the advocate themselves is supportive of assisted dying and they deliberately or inadvertently have the effect of encouraging the patient to consider that option.

As I think the hon. Member for Penistone and Stocksbridge said in her intervention on the hon. Member for Bexleyheath and Crayford, new clause 25 creates the role of independent advocate to provide support to a patient, to help them to effectively understand and engage with all the provisions in the Bill. It does not specify that the advocate should be obliged, equipped or experienced in supporting the patient to engage with other options.

[Dr Tidball]

First, it is necessary that a patient should be able to engage with all the provisions in the Bill. The reason I did not support the previous amendments from my hon. Friend the Member for Bexleyheath and Crayford was that they would only have provided advocacy at too late a stage and would not effectively support a patient at that point we talked about in clause 4, which is around the moment of seeking assistance. I hope that answers the question.

[Danny Kruger]

I am grateful to the hon. Lady. That is very helpful. That is my concern: we need to ensure all necessary support for the patient at the earliest stage possible.

--- Later in debate ---

[The Chair]

Order. The Member will have an opportunity to speak at the end of the debate. I call Danny Kruger.

[Danny Kruger]

I thank the hon. Lady. I worry a little about the magic powers of the training fairy, whom we frequently invoke to resolve all the anxieties. We are putting the resolution of difficult tensions on to future professionals and imagining that through training we can resolve all the difficult challenges. However, given the absolute and obvious value of an independent advocate for the people who need that role in the process and given that the hon. Member for Penistone and Stocksbridge has asserted that it is important for the role to be fulfilled at the earliest stage possible, which I entirely agree with, I am happy to support the amendments.

--- Later in debate ---

[Dr Tidball]

I am grateful for the support of my hon. Friends the Members for Spen Valley and for Bexleyheath and Crayford. It sounds that I may also have the support of the hon. Member for East Wiltshire, which also makes me very happy at this stage of the evening!

I tabled these amendments because I passionately believe in inclusive healthcare for disabled people, removing barriers to such healthcare where possible, and ensuring that disabled people have a strong voice in advocating for themselves and the healthcare they need or desire. I have tried to write the amendment and the new clause to ensure that access to an independent advocate operates across the functions of the Bill. I have been keen to ensure that this provision acts in conjunction with new clause 27, which I will speak about at a later stage. I hope, as I said in an earlier response to the hon. Member for East Wiltshire, that that will provide a solid and robust opportunity to monitor the impact on disabled people of the Bill, if it does pass through Parliament, through its implementation and in practice. Taken together, the measures will create a solid foundation to enable disabled people to have a voice and will provide a strong structure for accountability in the Bill.

I acknowledge the Minister’s comments, and will work with him and my hon. Friend the Member for Spen Valley to ensure that it is watertight.

Amendment 517 agreed to.

Amendment made: 534, in clause 30, page 18, line 30, at end insert—

“(da) the forms of proof of identity that are acceptable for the purposes of section 6.”—(Jack Abbott.)

Amendment made: 523, in clause 30, page 18, line 31, leave out paragraph (e) and insert—

“(1A) The Secretary of State may issue one or more codes of codes of practice in connection with any matters relating to the operation of this Act not required under subsection (1) as the Secretary of State considers appropriate.”—(Danny Kruger.)

This amendment, which works together with Amendment 447, would clarify that the Secretary of State is not required to issue a code of practice under subsection (1)(e) but instead has the discretionary power to issue further codes of practice as the Secretary of State considers appropriate.

Amendment made: 417, in clause 30, page 18, line 32, at end insert—

“(1A) The Secretary of State must, within six months of the passing of this Act, issue one or more codes of practice in connection with the arrangements for ensuring effective communication in connection with the provision of assistance to persons in accordance with this Act, including the use of interpreters.”—(Jack Abbott.)

This amendment is linked to Amendment 416.

Amendments made: 216, in clause 30, page 18, line 37, leave out subsection (4).

See the statement for Amendment 188.

Amendment 217, in clause 30, page 18, line 38, leave out “that procedure” and insert “section 39”.—(Kim Leadbeater.)

See the statement for Amendment 188.

[Danny Kruger]

On a point of order, Mrs Harris. Before I move the next amendment, I wish to correct the record. I do not know if this is the moment to do so, but I wish to correct a mistake I made earlier today.

[The Chair]

Yes, go on then.

[Danny Kruger]

I am grateful, Mrs Harris. Earlier, I cited evidence about an exodus of care workers from the Australian care system. Members challenged me on that—fairly. I have been looking since, and I could not find the evidence that was in my mind. I think I was confusing it with evidence about the number of palliative care professionals who said that they would not want to work in the sector if assisted dying were performed by their organisations. The only evidence I have got on Australia was from Robert Clark, the Attorney General, who, rather than referring to statistics, gave his own evidence on how many professionals are leaving the Victorian hospital system in consequence of the introduction of voluntary assisted dying. I thought I had statistical evidence to show an exodus, but I did not. I am correcting the record and I apologise to the Committee.

[The Chair]

I thank the hon. Member.

[Danny Kruger]

I beg to move amendment 524, in clause 30, page 18, line 40, leave out from “have regard to” and insert “comply with”.

This amendment would require individuals to comply with the Codes of Practice issued by the Secretary of State.

[The Chair]

With this it will be convenient to discuss clause stand part.

[Danny Kruger]

The amendment would specify that individuals should comply with the codes of practice issued by the Secretary of State. I am glad that the hon. Member for Spen Valley agreed to accept an earlier amendment requiring the Secretary of State to issue codes of practice. That was a helpful step, but it is not quite sufficient, because it does not address the critical weakness in the Bill. Time and again, we have been told that amendments tabled are not suitable for the face of the Bill and that we should rely on codes of practice and guidance that will be issued subsequently. Now we are at this point, though, and it is clear that under clause 30(6) the code of practice is something that those

“performing any function under this Act must”,

simply, “have regard to”.

We have been told repeatedly by the Minister that the Government’s preference is to leave things until later and not to address issues on the face of the Bill, because additional words, phrases and amendments would increase risk and be counterproductive. That is an argument that we have heard from the Government Front Bench repeatedly. Other Members have dismissed as embroidery suggested amendments to strengthen safeguards; it has been suggested that the more we write, the less safe the Bill will be. I do not think those arguments will survive the other place, if the Bill arrives there. There is a vast difference between something in the Bill that must be “complied with” because it is in legislation, and something that those providing assistance under the Bill must only “have regard to”. It is perplexing that the Bill does not clearly specify that practitioners should “follow” or “act in accordance with” the guidance. These words matter.

The Office of the Parliamentary Counsel explores the choice of these different phrases in its guidance on common legislative problems. That guidance was produced by the drafter of this Bill, the former First Parliamentary Counsel, Elizabeth Gardiner. It is quite a deliberate policy choice to leave compliance with these codes of practice to the discretion of the individuals rather than to require it. The guide to making the legislation—the Cabinet Office manual, which the drafter would have been very familiar with—states:

“A ‘code of practice’ is an authoritative statement of practice to be followed in some field. It typically differs from legislation in that it offers guidance rather than imposing requirements: its prescriptions are not hard and fast rules but guidelines which may allow considerable latitude in their practical application and may be departed from in appropriate circumstances. The provisions of a code are not directly enforceable by legal proceedings…

Codes of practice are not to be used to define specific legal obligations. Where specific legal obligations are to be imposed, breach of which leads directly to civil or criminal liability, their content should be spelled out in primary or secondary legislation. A code of practice is not appropriate for this purpose, either to delineate the main obligation or to provide for exceptions or defences.”

I do not think it appropriate that so much is being left to ministerial discretion. I find this perplexing. Not to make a party-political point, but we know how much Labour MPs distrust Conservatives, and yet they are seemingly willing—as indeed, Conservative colleagues in support of this are—

[The Chair]

Order. Can we keep to the point?

[Danny Kruger]

The point I am making is that we are suggesting that some future Secretary of State, in a different Government of which we know nothing, might decide to issue codes of practice that will determine how this process is delivered, but I will leave that point.

We must address the weak status of these codes of practice. I regret that they are being left in this weak form. At a minimum level, we should require that they are properly complied with. This cannot be remedied after the Bill has passed. No matter how strong the language in the codes of practice, that language cannot override or change the nature of a statutory duty. Any enhanced duty has to come from a source external to the document being considered itself—namely, the statute. I ask the hon. Member for Spen Valley, why not insist that practitioners comply with the relevant provisions of the code?

[Stephen Kinnock]

I will speak on amendment 524, in the name of the hon. Member for East Wiltshire. As the Bill stands, a person is required to “have regard to” any codes of practice issued by the Secretary of State when performing a function under the Bill. Amendment 524 would mean that individuals are instead required to “comply with” the codes of practice issued. That could limit someone to doing only what is specified in the code, rather than allowing them to exercise their professional discretion to perform the function in the most appropriate way, having given regard to the code. It is also unclear from the amendment who would monitor or enforce compliance with the codes. Codes of practice are normally detailed practical guidance on how to comply with legal obligations, and are generally not legally binding.

I hope those observations are helpful to the Committee.

Terminally Ill Adults (End of Life) Bill (Twenty-third sitting)

Danny Kruger Excerpts

Wednesday 12th March 2025 Public Bill Committees

[Jack Abbott (Ipswich) (Lab/Co-op)]

I feel huge responsibility for my “EastEnders”-style ending, Ms McVey. Unfortunately, my speech is not going to be as radical as some may have hoped.

I was discussing the bandwidth or capacity of the professionals involved in the process. We have been very good at leaving party politics at the door, but Opposition Members have mentioned the state of the NHS and the wider healthcare system on a couple of occasions. I could probably go further and mention the huge backlogs in the courts and wider criminal justice system. It is fair enough to consider the Bill in that wider context; I have considered that point deeply, as I know Members from across the Committee have.

We asked earlier whether there is capacity in the system to support the panels—that is, are there enough psychiatrists and social workers? However, it is inconsistent to then also say that we need more psychiatrists and social workers in other areas of the process. I am not sure that we can have it both ways. This is something to consider—the Committee has discussed it—but ultimately it is a matter for Members of the House.

The Committee is not here to debate whether the systems in place can deal with an assisted dying Bill. Whether or not assisted dying is introduced into our healthcare and judicial systems, it will not fundamentally change the challenges that the country faces in these areas. We are here to ensure that we present back to the House a Bill that has the safeguards and balances that I mentioned this morning, so that it can progress. I certainly would not want to produce anything that paralyses the system, but new clause 21 would not do so. In fact, in the long run, the panel approach would help the process along. For that reason, I am not sure that the capacity of professionals provides a valid argument against the panel—if anything, quite the reverse. As I said, that point really was not worthy of an “EastEnders” cliffhanger.

We have had positive murmurings and acknowledgments about amendment (e) to new clause 21. The panel approach represents a huge leap forward. I appreciate that Members in the room and across the House may say that the approach does not go far enough. I go back to my earlier point: for some Members, no amendment, change or safeguard will ever be enough for them to support the Bill. As a Committee, we have to come out with a strong, robust process that puts the patient first, and ensure that we are acting in their interests. We must make sure patients are safe and have the capacity to make these decisions, but I do not want any individual looking to go down this route to be stuck in endless meetings or courtrooms, when they should be spending time with their loved ones. I think this strikes the right balance between safeguarding—bringing in all of the professional expertise that we have been looking to do as a Committee—and making sure this process is fair and equitable. I urge Members to support amendment (e) to new clause 21, but I will also be supporting the new clauses today.

[Danny Kruger (East Wiltshire) (Con)]

On Second Reading on 29 November, the hon. Member for Spen Valley said:

“Under the Bill, any terminally ill person who wants to be considered for an assisted death would have to undertake a thorough and robust process involving two doctors and a High Court judge. No other jurisdiction in the world has those layers of safeguarding.”—[Official Report, 29 November 2024; Vol. 757, c. 1019.]

There can be no doubt that the High Court judge safeguard was presented to the House as globally exceptional, unusually thorough and robust, as compared to other jurisdictions. It was also a prominent feature of the public campaign around the Bill. We were told it was a Bill designed for exceptional circumstances, with robust safeguards—the High Court judge being the pre-eminent one. It was not a trivial detail; it was the centrepiece of a safeguarding regime arranged around a small number of vulnerable people. Over 60 Members of Parliament are on the record as saying that it was this safeguard that helped persuade them to vote in favour on Second Reading.

[Kim Leadbeater (Spen Valley) (Lab)]

I will stand corrected if this is not true, but my understanding is that Hansard will show a very different story. I do not think that 60 people got up and said on record that this element was why they were voting for the Bill.

[Danny Kruger]

To be clear, I was not suggesting that they all said so on Second Reading, because not everybody spoke in that debate—nor am I saying that it is only because of this safeguard that MPs voted for the Bill, but there are 60 colleagues of ours who have cited the judicial safeguard as a reason for supporting the Bill. Indeed, I hope the Committee will agree that this was always presented as a very significant aspect of the safeguarding regime, if not the most significant aspect. I suggest it was the most significant, because it enabled people to argue that this was the strongest Bill in the world, given that other regimes do not have a judicial element.

I opposed the Bill on Second Reading and I expect that I will oppose it on Third Reading, but I respect the Committee process enough to accept that the House wanted the Bill debated. Because I respect the process, I have not opposed clauses that concern the heart of the Bill, but we are now going to see the hon. Member for Spen Valley, Government Ministers and their supporters vote against this clause—the essential safeguard in the Bill, and the principal element used to persuade the House that the Bill was safe—standing part of the Bill. It is an extraordinary thing that we are going to see the Bill’s promoter and the Government oppose the centrepiece of this Bill.

[Kim Leadbeater]

I understand the hon. Member’s framing of this and it might very well be his perspective, but there were 650 MPs who voted on Second Reading that day, so I think it is unfair to represent colleagues who did not have the view that this is the central component of the Bill. There are lots of other components to the Bill that colleagues have certainly spoken to me about, and it is important to acknowledge that.

[Danny Kruger]

I am happy to acknowledge that there are many other components of the Bill, but many Members, including the hon. Lady, cited this safeguard as an essential element of the safeguarding regime—if not the most essential. Crucially, it was presented to the House of Commons as such, and it is a central clause of the Bill, and the hon. Lady is now proposing to vote against that element. My view is that a change this substantial—a fundamental and radical change to the structure of the process that is being designed—should be presented on Report. The whole House should have the opportunity to discuss and debate properly whether that element should be changed. Every Member should have the opportunity to have a say on this central point.

[Tom Gordon (Harrogate and Knaresborough) (LD)]

The hon. Gentleman will have to forgive me, because I am a relatively new MP and there are still bits of parliamentary procedure that I have not yet got my head round, but is it not the case that MPs will have a say on Report, when they can table amendments to take the Bill back to how it was? That point could therefore be debated on Report.

[Danny Kruger]

Of course that is correct: a small number of amendments will be selected for debate and vote on Report, and if somebody wants to table an amendment on this issue it might indeed make it through Mr Speaker’s selection, but the point of the Committee process is to consider the Bill that was passed on Second Reading and come back to the House with the Bill either unamended or amended. This is a very substantial change to the Bill that was presented and voted for on Second Reading. As I say, many Members supported this clause, no doubt including the hon. Gentleman.

[Kim Leadbeater]

The hon. Gentleman is making a point that we hopefully all agree with. The job of the Committee is to take evidence and look at ways of improving the Bill on that basis. This is a really good example of where we have actually done our job and done it very, very well.

[Danny Kruger]

I do not think the hon. Lady can say she has done her job very, very well if, after presenting a Bill, and after months and months of work and debate, including many hours’ debate on Second Reading, she suddenly decides that its central part is deficient. She talks about the opportunity for the Committee to take and debate evidence, but we have not had evidence on this new element—these new clauses and the panel process. There were vague suggestions from some of the people we heard evidence from that it might be appropriate, but although we heard evidence on the High Court stage and the deficiencies therein, we have not had the opportunity to properly examine the panel element that is now being introduced.

[Kim Leadbeater]

Will the hon. Gentleman give way one more time?

[Danny Kruger]

With great pleasure.

[Kim Leadbeater]

I thank the hon. Gentleman for giving way again; I will sit down after this. I will not take it too personally that he thinks I have done a very poor job, but the point is that we heard a broad range of evidence from professionals including legal experts, medical experts, psychiatrists and social workers—lots of different people. We have also had evidence come in over recent weeks and months that has added to that and has talked about these changes. It is important to acknowledge that.

[Danny Kruger]

The hon. Lady must not apologise for intervening on me. I can hardly be one to object to people intervening. This is a very good forum for the kind of exchanges we are having, so I am very happy to take interventions. She is absolutely right that lots of evidence has been presented. I cite it myself all the time. Further evidence is coming in, and much of it is very critical of the new proposals. That is an absolutely fair point, but my point remains that we invited witnesses and had three days of evidence on a Bill whose core safeguard has now fundamentally changed—well, it has not changed yet, but I suspect it is about to.

[Dr Marie Tidball (Penistone and Stocksbridge) (Lab)]

I supported the Bill on Second Reading on the basis of the High Court proposal, but then read very closely the evidence from Justice Munby on the need for a strengthened evidentiary process so that this is not just a rubber-stamping exercise. He said, secondly, that it would be better to replace the High Court with another system because of the position that it would place judges in. Having listened to 50 witnesses, I am satisfied with this proposal; I was persuaded through this cross-party process, which is an incredible example of deliberative decision making. Does the hon. Gentleman agree that our ability to amend the Bill where the evidence shows that we must do so demonstrates the strength of this process, and has enabled us to produce something much better and more in alignment with public opinion?

[Danny Kruger]

I greatly respect the position that the hon. Lady has come to. She has been persuaded that this is an improvement on the Bill, and I respect that. I recognise that that is what the hon. Member for Spen Valley and others think, but I am afraid I do not accept that the process has been adequate. The hon. Member for Penistone and Stocksbridge cites Justice Munby and others who criticised the High Court proposals. I also have my criticisms of them—I think they were inadequate—but the response to that is not to scrap them all together, but to strengthen them, as Justice Munby suggested. The hon. Lady will know that Justice Munby is not supportive of the new proposals either; he thinks they also fail the essential test of being an effective safeguard. Nor does the new proposal—the panel—provide the opportunity for evidentiary investigation, which would indeed be appropriate if we were to have a proper safeguard at this stage. I respect the hon. Lady’s position, but I am not persuaded.

[Lewis Atkinson (Sunderland Central) (Lab)]

rose—

--- Later in debate ---

[Danny Kruger]

I am about to come to that. I am going to suggest how we could have done it better. I take the hon. Member’s point. I do need to answer that question.

[Kit Malthouse]

I am just intrigued. My hon. Friend is talking a lot about the evidence. Did any evidence on anything in the Bill change his mind on any aspect of it?

[Danny Kruger]

Was there any evidence that changed my mind?

[The Chair]

That is out of scope of the group, but you carry on and think, Mr Kruger.

[Danny Kruger]

Thank you, Ms McVey. I do not want to be facetious because it is a serious point, but lots of new points were made in evidence to the Committee, including some in favour of the Bill as it is and some of the amendments that I have opposed. We have had some helpful evidence that has helped to shore up the case made by the Bill’s promoter, as well as evidence that suggested otherwise, and some points in debate have been very well made. I was nearly floored by an intervention by the hon. Member for Chesham and Amersham yesterday, for instance. I do respect the points that have been made in Committee, including at the evidence stage.

My suggestion is that we should be doing this on Report, if we do it at all, because that would reflect the seriousness of the proposal and the fact that the House voted for the clause on Second Reading. There were problems with the High Court stage, as has been acknowledged, and others have referred to it in support of the change. I want to quickly acknowledge, perhaps in response to my right hon. Friend the Member for North West Hampshire, the points made by Lord Sumption, Max Hill, Alex Ruck Keene and Nicholas Mostyn—all senior barristers and judges. It became obvious that there were significant issues, particularly around the power of the court to investigate applications or to hear evidence on them, and about the capacity of the judicial system to cope with the demand.

It was clear that further thought was needed on the High Court stage. Indeed it was apparent that further thought was already under way. There is an interesting exchange in the record of the evidence sessions between the Justice Minister, the hon. Member for Finchley and Golders Green, and those witnesses, particularly Max Hill, who said that he was quite close to the construction of the Bill. That clearly shows, in my view, that there already was thinking under way behind the scenes that have led to these changes.

My view is that, rather than ditching clause 12, we should be seeking to make it work in ways that many hon. Members have proposed. I am afraid we just skipped over those proposals in earlier groupings on the clause because there was no point—we were obviously proceeding to the stand part debate and to eliminate the involvement of the court all together.

There were things the Committee could have set itself to address, but we have not done that. I hope you will excuse me, Ms McVey, for making what might be a cynical observation: I think the High Court stage was recognised as popular and as useful to the campaign to get the Bill through the House of Commons. It was predicated specifically on the point, which was clearly communicated and understood by the public, that this measure of assisted dying is intended for very few people. It is for the most exceptional cases: people at the very end of their life, in desperate circumstances, in desperate pain and suffering. Very few people need it. However, I believe this change is predicated on the real intent of the Bill: far wider eligibility than just that tiny group.

We have seen that through the rejection of a series of amendments that would have restricted eligibility specifically to that group—a group for whom we all understand the case for an assisted death; again, the public support it in those specific cases of people at the very end of their life, who are suffering intolerably. The Bill is not restricted to that group only, and that is why we need to redesign the system to enable this larger group to make use of it.

[Kim Leadbeater]

The hon. Gentleman is been very generous with his time. I am interested in how he can conclude that the eligibility criteria have somehow been expanded by adding an expert panel with a psychiatrist and a social worker.

[Danny Kruger]

I am sorry; I did not intend to give that impression. That is not what I am suggesting. What I am saying is that we have seen the rejection of a series of amendments that would have restricted eligibility, or ensured that only certain people would be eligible: those for whom we all understand the reason for the case for assisted death. Whether our amendments related to the burden, the pain, or questions around capacity and coercion, our amendments would have restricted access to only the most desperate people.

On that basis, it would have been appropriate to have a High Court stage, because the High Court could have accommodated that lower demand. Given the opportunity that the Bill affords to a larger group of people to gain access to assisted death, it has become obvious—I presume, in the mind of Government and others—that there is insufficient capacity in the court system to accommodate the regime being instituted here.

I think the question of High Court capacity has been driven by the desire for a system that can cope with many thousands of deaths per year. I have seen ranges suggesting between 6,000 and 17,000 deaths per year. If Members have other calculations or estimates, I would be grateful to hear them. In fact, it would be good to know whether the Government have done any estimation of the numbers we are looking at.

It is not simply a case of averting those desperate cases of people who help their relatives to die by going to Switzerland or who assist them in committing suicide in other ways—we heard from Max Hill that only a handful of cases cross his desk every year. It is clearly the intention to greatly widen the scope beyond that desperate group. It is unclear what the overall number is, but my strong sense is that we are looking at many thousands, and for that reason, it has been decided that the High Court would not have the capacity to cope with this.

[Jack Abbott]

We go back to the inconsistency argument. On the one hand, we are saying that we must have more psychiatrists, social workers and palliative care experts in the process. This change is now being proposed, and the hon. Gentleman is using that as a reason to say that there is bad faith here and the sponsors of the Bill just want to widen the scope. I do not think he can have it both ways.

[Danny Kruger]

I am not suggesting bad faith here. I think there is a genuine view, and it might well come from the Government’s official advice, that the Bill, as drafted and as amended, will allow many thousands of people to gain access to assisted death every year. On that basis, we will need a system that can cope with them. The judiciary clearly communicated that it could not cope, and I understand why it would do so.

[Jack Abbott]

I appreciate that, but just this morning we heard from the hon. Member for Reigate that, because there are not enough psychiatrists and social workers, this panel is not workable either. Again, there is an inconsistency here. There is either enough capacity in the system or there is not—which is it?

[Danny Kruger]

I am sorry to disappoint the hon. Member, but I am afraid I am going to have it both ways. I think the Bill is profoundly flawed, particularly if large numbers of people will be going through this system. Whether they are going through a judicial system or a panel system, there will be huge capacity constraints on the professionals involved, and we have transferred that responsibility and that problem from the judiciary to psychiatry and social work—unless, of course, it is a rubber-stamp exercise, which I fear it might be, but even then, we are still involving psychiatrists and social workers in a rubber-stamp exercise.

[Jack Abbott]

But that demolishes the central argument that the hon. Gentleman is making. On the one hand, he says that we are expanding access, but on the other, he says that the panel system will not be able to expand it. If the motive of the promoter of the Bill was to expand the system to make more people eligible, the hon. Gentleman has just said that the constraints of the panel will mean that that does not happen anyway. He is conflating different things and being totally inconsistent.

[Danny Kruger]

All right. I regret my failure to assuage the anxieties of the hon. Member.

Let me explain why it was so important that we had a judicial stage. My complaints were never against the principle, but always against the practicalities, for the reasons I have just given and will go on to say more about. The value of a judicial stage is that it gave the doctors certainty and, indeed, protection for the process they were responsible for.

I want to cite the evidence from the Medical Defence Union, which provides doctors with insurance against claims of medical negligence. Responding to the suggestion that judicial involvement could be replaced by some other decision-making body, it stated:

“The MDU strongly rejects this assertion. The involvement of the judiciary is essential. Its absence leaves doctors unduly exposed. Media reports suggest that an alternative safeguard is being mooted. No ‘independent panel’, however so constituted, can replace the legal authority of a course of action sealed and ratified by a judge. Doctors deserve that certainty when relying upon this Bill to provide the very best for their patients at the most delicate moment of their duty of care.”

I will also cite the evidence that we received from Ruth Hughes, a senior barrister with 17 years of experience in mental capacity law. I cannot say that she is a King’s counsel because she does not become one until later this month—congratulations to her. She stated in her written evidence that

“if there is no judicial declaration because the judicial safeguard is not enacted, then there is a risk that the estates of persons who have been assisted to die will be sent into turmoil. This is due to the possibility of arguments being made that beneficiaries of the estate have ‘influenced’ the person into obtaining the assisted death.”

She said that

“even if there is no conviction but another person asserts there was ‘influence’…not undue influence”—

and certainly not coercion, which is banned by the Bill—

“but a lower standard of ‘influence’ by a beneficiary of the estate…then the personal representatives will be advised to obtain directions from the Court as to how to administer the estate.”

Her point is that, even if the bar for the assisted death is met, in terms of influence, coercion and so on, the testamentary or probate challenges that the estates will then go into are considerable.

The fact is that somebody has to be the judge—somebody has to take legal responsibility for the decision that is made. In the common law system, we do not give powers of life and death to panels; we give them to legally constituted bodies with judicial authority. To cite the MDU again:

“To put it plainly, without judicial involvement someone will have to take responsibility for the legality of the action.”

[Dr Simon Opher (Stroud) (Lab)]

Again, I thank the hon. Member for quoting all this, but does it mean that he supports the original clause 12?

[Danny Kruger]

I will be voting for clause 12 to stand part, because I think it is an essential safeguard, but it is not strong enough. There are all sorts of problems with it around capacity and the way it is constituted, and I will come on now to how I think it can be improved.

[Dr Opher]

indicated dissent.

[Danny Kruger]

The hon. Gentleman does not seem impressed by my straight answer to his straight question. Yes, I do support clause 12. I think we should strengthen it, in the ways that I will now explain. We do need a court, and I think Parliament was right to demand this, or to support it. We have a comparable model in the Court of Protection, which applies when there are disputed decisions about whether to withdraw life support. By the way, I mention to hon. Members who have referred to this—just to go back to an earlier debate—that, with the Court of Protection, one is obliged to notify the family. So even there, when there is a decision to withdraw life support, the family is notified, but we have decided not to notify the family under this Bill. But anyway, the Court of Protection does provide an appropriate comparison.

Whether we are talking about the Court of Protection or the High Court, either would work if the system was set up right. The crucial thing, in my view, is that it needs a proper adversarial arrangement so that the judge can actually judge. The way that judges work in this country, under the common law system, is that they hear arguments and then make decisions. It has been suggested that there could be a role for the official solicitor in acting “for the state”, as it were—or indeed “for society”, perhaps, or however we would want to put it—to perform the role of challenging the application and taking responsibility for presenting any alternative pieces of information that the judge should consider.

[Jack Abbott]

I do not want to make implications about what the hon. Gentleman might be saying, but am I correct that, with the adversarial position that he is supporting, a person coming to the end of their life, who had gone through this process, would essentially have to argue their case in front of a judge?

[Danny Kruger]

No, I do not think it is necessary for the applicant to come to court and present their case—that might be completely impossible or inappropriate—but a case does need to be made to the judge about why it should proceed, which is part of the original proposal. Indeed, that is what is proposed under the panel system as well: the case is made for whether it should go ahead.

My suggestion is that there needs to be representatives of the applicant—who may want to appear themselves—but there also needs to be somebody who is putting the other side of the story: “Maybe this isn’t the right thing to do. Has the judge considered these parts of the evidence, or this aspect of the report from the assessing doctors?” That would be an appropriate procedure, which is completely consistent with how these important decisions are taken in other aspects of our system.

[Jack Abbott]

There is a difference between an adversarial system and an inquisitorial system, which is what I believe is proposed for this panel. The panel would take not an adversarial but an inquisitive position. I do not think that is a million miles away from what the hon. Gentleman is saying, but there is a distinct difference. If he is arguing for the panel to take an adversarial position, that is very different from where the panel currently is.

[Danny Kruger]

Yes; it would be inappropriate to ask a panel to operate in an adversarial system. It would be inappropriate to ask a psychiatrist and a social worker to act as a judge. We need a proper court system, as we always do with other important decisions in which two sides make arguments. Let me try to explain. I agree that what is being proposed is an inquisitorial system through a panel, which is completely alien to the British common law model of making important decisions. That is what is being suggested, but I do not think it is appropriate.

I do not believe in assisted dying; I think it is the wrong thing to do. But if we were to do it, we should have a proper multidisciplinary team at the outset—I sort of feel that that is where we have got to through these debates, and if the debates had happened properly and prior to the Bill being drafted, something more like this system might have been proposed. Perhaps a doctor does the first declaration as proposed, but we then go into a proper multidisciplinary team, rather than just having the options to refer to psychiatrists if appropriate or to maybe consult palliative care specialists.

The involvement of all the appropriate specialists in assessing capacity and coercion, making clear the alternatives that the patient has, making a proper diagnosis, and hearing from family members—all the appropriate processes that should be followed in a case like this—should happen at the very beginning of the process. There is no need for a lawyer at that stage on the multidisciplinary team that we have created; it will be a proper combination of clinical and social work professionals. Their reports would then feed into the judicial process, which would be the second or third stage, if we have a doctor at the beginning. The judge would then hear arguments from, as it were, both sides. That need not be a distressing or time-consuming process, but it would be an appropriate one under British law to make decisions of life and death. That court would clearly hear arguments made by both sides.

[Kit Malthouse]

To be clear, does my hon. Friend envisage that I would either be in the hearing, or lying in my bed listening to the hearing—the fungating tumours in my neck restricting my ability to breathe—having gone through all the eligibility criteria, but having to listen to someone argue that I should go through a death that I am trying to avoid, by arguing that I do not have capacity? Does he not see that that could be profoundly distressing to someone who is in the closing moments of their life? In many ways, it might actually be cruel and traumatic for me to hear somebody arguing, frankly, that I should endure the pain, in their opinion.

[Danny Kruger]

I regret that my right hon. Friend is making that argument. The fact is that the panel is already going to consider whether it is appropriate. There might not be some professional who is there with the purpose of suggesting that there are other things that the panel should consider, but the patient is already lying there waiting for powerful people in another room to make a decision about whether they are going to get an assisted suicide or not. That process is already going on.

On my right hon. Friend’s point that it is intolerable for somebody to hear the case made against their assisted death, let me put to him an alternative hypothesis. Rather than somebody in the situation that he describes, let us imagine somebody who is the victim of years of coercive control, who has undiagnosed mental health conditions, who is feeling a burden on their family and whose relatives want their money. None of that has yet been fully identified through the initial doctor’s stage of the process, but it has been commented on in some of the evidence that the multidisciplinary team heard. That person might hope that somebody is there making the case for them, as might their family.

It is totally appropriate for a court to hear that this procedure should not go ahead because of those other factors, which are only now being properly understood by the decision maker. That decision maker is doing so openly, not in a private session. The decision is being made not by people who are committed to the procedure and process of assisted suicide, but by an independent judge, sitting in their judicial capacity in open court, with all the safeguards and accountability that the judicial system has. That feels to me like a perfectly appropriate safeguard, and I suggest that it is, in principle, what the House of Commons thought they were getting when they supported this.

[Sarah Olney (Richmond Park) (LD)]

I am just reflecting on the right hon. Member for North West Hampshire’s intervention. Does the hon. Gentleman not agree that the purpose either of the panel or the High Court judge is to establish beyond all doubt that if a person is assisted in their death, no crime is being committed, and that in order to establish that, we need to apply the highest standards of evidence? Whether an adversarial or an inquisitorial process is used to collect that evidence, there must be some sort of process. That may be uncomfortable for the patient but it is necessary for their friends, relatives and the doctors being asked to assist. That is really what we are trying to achieve.

[Danny Kruger]

I am grateful to the hon. Lady for making that absolutely central point. This is a judicial process, and a decision is being made. I recognise that the hon. Member for Spen Valley has correctly abandoned the claim that this is a judge-led process—because it is not—but the function of this panel will be essentially judicial, not least because the decision to proceed with an assisted death entails the people involved in administering it being exempt from criminal law and not being liable to prosecution under the Suicide Act 1961. We have made an exemption for what is otherwise a crime, and if they do not get the go-ahead from this panel, they will be committing a crime if they proceed. So in all essence, a judicial decision is being made, and it is right that we have the protections of a court.

Let me make a couple of brief points about the practicalities, and they have partly been made by others. The central point is that we do not know whether the professionals who will be required to take part in this panel have the capacity to do so. We know that the judges do not have the capacity under the current design of the law, which is an essential flaw—or we think they do not, because that point has been comprehensively argued by the judiciary and I suspect by officials at the Ministry of Justice. What we do not know is whether the psychiatry and social work professions have adequate capacity. There has been no impact assessment, and we have had a lot of comments from representative bodies expressing anxiety about the capacity of these professions to supply the panels.

The point I am trying to make is that we cannot, and should not, legislate in the dark. We should not draft laws in ignorance of these basic facts. We need to know whether the law before us is workable in the real world, and I would be grateful for clarification on that from Ministers when they speak to this clause. In my view, we need robust and clear data on how many professionals might take up the posts, and more importantly, we need the clearest and earliest warning of where there might be deficits that would compromise the entire system, particularly around the capacity of psychiatrists. We have a central problem with ignorance around capacity, but my strong view is that we do have a problem with capacity.

An important point was made by Alex Ruck Keene in evidence around the judge-led process, which we discussed earlier. His point was that it would not be possible for the judge to decline an assisted death on the basis of what he calls service denial—that is, there is not enough social care treatment or medical treatment available for the patient. If the reason why the patient were to receive an assisted death was that the local authority would not provide them with improvements to their home or funding, or that they could not get the medical treatment they wanted early enough, that would be a legitimate reason, or would not be a reason not to proceed with an assisted death. That is a very grave concern to us, and it is what happens in other countries. We heard this morning about evidence that when a patient is denied the medical or social care that they need to carry on living and living well, they are offered an assisted death. In those circumstances, I would really hope that the decision maker would conclude that it is wrong that we offer an assisted death, and that we in fact need to insist that they get the support they need to live well. I reference that because, as I understand it, there is no opportunity in the new clauses for the panel to decline an assisted death on grounds that it is being sought only because of the inadequacy of the wider care system.

It has been suggested that the judicial option remains, through the judicial review system. Other hon. Members have responded to that point, so I will not labour it. However, I want to make the point that new clause 17 makes judicial review less likely because it offers the opportunity for a sort of appeal. It is an appeal only in one direction—against a refusal—but there is a sort of appeal process in the system. As my hon. Friend the Member for Reigate said, if there is a JR, it is likely to take a long time. There is nothing about whether legal aid will be arranged. The state has proposed to pay for people to go through the assisted dying process, but is not prepared to pay anybody to challenge it, so they would have to raise their own money. It would also take a long time. It would be much simpler and better, whether it is a panel or a judge, to set up the system in a way that allows both sides to be told and that does not rely on a cumbersome judicial review system.

I reiterate that I support the multidisciplinary team. It is a very good thing that the hon. Member for Spen Valley has decided to introduce a proper stage at which a psychiatrist and a social worker will have to consider the application properly. I have concerns about how it would actually work, which I will come on to, but having a multidisciplinary team is in principle the right system. I stress that the professionals who made the case for multidisciplinary teams as part of the assessment process have not endorsed the new clauses. They are not saying that we have adequately met their concerns about the process.

[Kim Leadbeater]

I am not entirely sure who the hon. Gentleman is referring to, but it is fair to say that there is a range of views across a range of professions. It is important to acknowledge that.

[Danny Kruger]

I apologise; the hon. Lady is absolutely right. No doubt there are representative bodies, whether it is patients’ groups or bodies representing professionals, that are satisfied with the new proposal. I do not know which—genuinely, I just have not come across them—but I have no doubt that there are some.

[Kim Leadbeater]

To clarify, the point that I am making is that there is a range of views across a range of organisations—many of which are neutral on the issue of assisted dying, full stop—and a range of views within each profession. We heard evidence from people working in palliative care with different views, and from medical people with different views. It is important to acknowledge that.

[Danny Kruger]

Yes, a number are neutral. I will be grateful if the hon. Lady can tell the Committee if there are any representative bodies working with the professionals who administer end-of-life care that have endorsed either the Bill as it was or the Bill as it is. I do not believe there are.

[Kim Leadbeater]

I will check.

[Danny Kruger]

The hon. Lady is going to check. My understanding is that all the bodies that represent palliative care professionals and end-of-life specialists are opposed to the Bill as it was and as it is. I think there are straightforward reasons for that.

Everybody agrees that there is value in the multidisciplinary team approach. The British Association of Social Workers provided evidence setting out what it thought was needed, namely an MDT working at the assessment stage. This is not that. It is very important that we do not confuse the provisions made under the new clauses with a multidisciplinary team operating at the appropriate moment in the process. We have to have public confidence in the process. It is very important that the composition of the new proposed panels is not conflated with the separate matter of a multidisciplinary team model. It would be very unfortunate if that confusion obtained.

The Bill, as drafted, rejects the involvement of a multi-professional team model for the conduct of the assessments, preferring two doctors working alone without input from a multidisciplinary team. I recognise that there are opportunities for them to hear from other professionals, but it is not a multidisciplinary team in any recognisable sense of the term.

[Kim Leadbeater]

Will the hon. Gentleman give way on that point?

[Danny Kruger]

I will in a moment. I was going to finish by saying that it is not correct or accurate to give the impression that Dr Cox or the Association for Palliative Medicine supports the proposed approach.

[Kim Leadbeater]

It is really important to be clear about this. I do not think anyone is suggesting that what is in the Bill will replace existing good practice. That is really important. We probably all have family and friends who are being treated for cancer now, and they are looked after and cared for by a multidisciplinary team. That team does not suddenly disappear, to be replaced by what is in the Bill; it can continue. The assisted dying option involves the two doctors, and I struggle to envisage any situation in which they would not work with the multidisciplinary team and add on, where appropriate and necessary, psychiatric intervention, social care and healthcare professionals. I always come back to the point that I do not think the two things will operate independently.

[Danny Kruger]

The hon. Lady does always come back to that point, and I respect it. She imagines that the good practice that is prevalent in the system will obtain automatically, in all cases, under the assisted dying regime, even though that regime is completely new. She says that she cannot envisage a scenario in which the doctors would not hear from all the professionals we all think should be consulted at this stage of the process. I have two points to make on that. First, why not make it explicit that that is required? Secondly, I am afraid that I can envisage scenarios in which for doctors—perhaps some years down the line, once this model of death has become normalised, as it has in Canada and elsewhere, with up to 10% of deaths coming through assisted dying—it just becomes a procedure.

Again, we have not ruled out the possibility—the likelihood, in fact—of independent clinics establishing themselves with a business that is about providing the support for people who want to end their life. There will be doctors who are happy to conduct the assessments; to take at face value what they hear from the patient; not to involve a wider multidisciplinary team in their consultations; and to expedite the process as the Bill, as drafted and amended, allows. I am afraid I do foresee a scenario in which the good practice in which all believe does not happen. My concern, and I expect the hon. Lady’s is the same, is to prevent that.

[Rebecca Paul (Reigate) (Con)]

My hon. Friend is making a powerful point. One of my concerns is about what happens if someone seeks assisted dying privately through a clinic. I see risks with multidisciplinary teams involving social workers continuing in that instance. Does my hon. Friend share my concern?

[Danny Kruger]

I certainly do. That is exactly the scenario that I fear, and I fear it within the NHS too. Let us not imagine that every NHS doctor has all the time and the access to the wider specialisms that they would wish. Under the Bill in its current form, there will be a very strong incentive and a very strong personal instinct for compassionate doctors, who believe in the autonomy of patients and in respecting the patient’s wishes, to take at face value what they are told and not to seek the expertise that would happen automatically if there were a proper multidisciplinary team at that stage of the process.

My point is that we do need a multidisciplinary team, but what is in the Bill is not it. At best, it is half a multidisciplinary team. There is no doctor on it. There is a lawyer, pointlessly. There is a sort of quasi-MDT—a duo-disciplinary team—but it is in the wrong place, and it will not assess, which is the job it should do, but judge. It will not diagnose or advise in the way that a clinician should; it will simply decide whether the criteria have been met for an assisted death. That job was rightly given to judges in the Bill that the House of Commons voted for, but this Bill does not have the powers, the safeguards, the accountability or the independence of a tribunal, let alone that of a court.

As the hon. Member for Spen Valley candidly says, the panel is not a judicial entity in any sense. It is a weird creature, neither one thing nor the other: a quasi-multidisciplinary team, at the wrong stage in the process, for the wrong purpose. I have said that it is not a multidisciplinary team, but it is not really a judicial entity either, as the hon. Lady has mentioned. It is certainly not “judge-plus”, as was originally suggested. There is no judge, just a legal member—not a judicial member but a legal member, who might be a lawyer.

[Kim Leadbeater]

There is a judge—it may be a retired judge—who is the commissioner, who heads up the entire assisted dying commission, and there is a legal expert on the panel as well, as the hon. Gentleman said. That could be a retired judge, so there is legal expertise there. I think the hon. Gentleman also made the point that there is not a doctor on the panel. My understanding is that psychiatrists are doctors, but I will stand corrected if that is not true.

[Danny Kruger]

The hon. Lady is absolutely right; I do apologise. There is indeed a doctor—a psychiatrist—but not a doctor specialising in their condition.

[Kim Leadbeater]

We have had two of them already.

[Danny Kruger]

No, we have had a couple of GPs. We have not had a doctor who is a specialist in their condition.

[Kim Leadbeater]

If needed.

[Danny Kruger]

If needed, there is the opportunity to refer to one. It is perfectly possible that the whole process of an assisted death could be done very well under the Bill—that is good news—but there is a very great risk that the process will not be done well, because there are huge gaps through which bad practice can creep. My specific concern about this stage is that we do not have the appropriate expertise on the panel.

On the hon. Lady’s point about there being a judge in the process, there is a distant judge who sits above a quango that appoints the panels. They take a view on a specific case only if there is an appeal against a refusal. They are not directly judging on the case, as the House of Commons was told would happen.

[Kim Leadbeater]

The reports for the case would go to the commissioner, so he or she would see the reports.

[Danny Kruger]

Yes, but he or she will consider a reconsideration only on the basis of an application to reconsider made by the applicant. There is only one opportunity for an appeal and it can happen in only one direction: against a refusal. I will come on to the role of the commissioner in a moment, but in the great majority of cases there will not be a judge involved in the decision. There might be a retired judge on the panel, but that is extremely unlikely; it is more likely to be a lawyer. It is a judicial exercise that is being conducted, so it would be appropriate for it to be a judge sitting properly in a court.

[Naz Shah (Bradford West) (Lab)]

Does the hon. Member share my concern that the Bill does not say that the panel can call people and ask them to swear under oath, unlike a mental health tribunal?

[Danny Kruger]

The hon. Lady is absolutely right. Having said that the panel is not a proper multidisciplinary team, I agree that it is not a proper judicial entity either. It is a panel with judicial power to approve life-or-death decisions, but it is without a judge or the normal judicial processes that would happen in a tribunal or court. There is no oath being taken by members of the panel or by witnesses; there is no independent appointment process, so the members of the panel will be appointed by the commissioner; there is no power to order the disclosure of information to the panel; there is no power to investigate wills, financial records or anything like that; and there is no requirement to meet the doctors or even to discuss the case with the patient themselves, if the panel considers that appropriate.

There is also no appeal against an approval, just a one-way appeal against a refusal. That appeal goes not to an independent judge sitting in a court, but to a commissioner—an appointee of the Government, who has been set up to facilitate the whole system.

Let me turn to the role of the VAD commissioner, or the Vader as I think of it; I will not labour the point. They can be a sitting judge, which is good, but I suggest to the Committee that it is highly unusual for sitting judges to be appointed to other public functions that are unrelated to a judicial role. I would be interested in the Minister’s view on that. Judges can be appointed to a second judicial job, such as chairing the Sentencing Council, but I am not aware of many examples in which a sitting judge sits in a non-judicial function.

Having looked into it, I discovered that there are three exceptions to the rule. First, the Master of the Rolls holds a number of sinecures in relation to the keeping of the public archives and the payment of the national debt, so that is a non-judicial function that a judge carries. Secondly, the chair of the Law Commission is a sitting High Court or Court of Appeal judge. Thirdly, and exceptionally, with permission of the senior judiciary, sitting judges can be asked to conduct public inquiries. A singular public inquiry, which is time-limited and essentially judicial in its purpose of determining what happened, and which will of course operate in an adversarial way, hearing proper evidence from counsel, is the only exception. However, that is not comparable to the model being set out here, in which a sitting judge is being asked to chair a permanent quango—a Government body.

[Kim Leadbeater]

Does the hon. Gentleman agree that that is exactly the point? This is a unique situation, and therefore we need a unique system. That is the perfect opportunity to use the skills that a judge or retired judge has.

[Danny Kruger]

Throughout this debate, the hon. Lady and others have frequently made the case that we should stick with the existing systems, such as the Mental Capacity Act 2005 and the use of doctors to make decisions about healthcare. Now the opposite point is being made: that we have a unique system and we therefore need to tear up the current way of working. In this one case, I think we need to stick with the current way of working: in the British judiciary, the High Court of England is the appropriate body to make decisions about life and death. That is how it works in other major decisions of life and death. These are questions that go to court.

On the point about the VAD commissioner being a sitting judge, even when it comes to inquiries that judges conduct outside their role as sitting judges in court, my understanding is that the Executive do not pick whichever sitting judge they want for the role. Instead, they request that the Lady Chief Justice make a judge available, and the Lady Chief Justice will select the appointee. What is proposed here is that the Prime Minister should pick from the bench of judges his or her preferred candidate. That feels like the use of a judge simply to fulfil a role that, frankly, does not need to be carried out by a judge.

For clarity, I emphasise that I am very much in favour of judges deciding on cases, but I do not see why a judge should fulfil the role of chief quangocrat for the administration of the regime. When we look at the functions the commissioner will have, it is quite right that, under the previous version of the Bill, most of those functions were given to the chief medical officer, because most of the required functions have to do with the administration of the medical aspects of the Bill. The collection of data and the monitoring of the operation of the Act are best left to a medic with experience of our healthcare system, rather than to a judge. These are not judicial functions.

The only function carried out by the commissioner that would require one to be a judge, or that is in a sense judicial, is the review of panel decisions, because a judicial decision is being made. Under new clause 17(2), the test is limited to an error of law, irrationality or procedural unfairness; those are the grounds for judicial review. If we did not have new clause 17, the ability for judicial review of panel decisions would remain. It could be argued that the new clause would actually limit judicial review by only allowing the person concerned to apply for reconsideration.

I understand that some courts in Canada, which has a comparable judicial and common law system to ours, have held that family members do not have standing to judicially review decisions to authorise medical assistance in dying. The suggestion has been made that families who are concerned that an error has been made in a decision to approve a death should be able to quickly get an injunction through a JR. I hope that that will be the case, if this law passes as proposed, but it certainly is not the experience elsewhere and I fear it might not be the experience here.

I am afraid that we have a dog’s breakfast of a system: all the problems of the High Court system that have been aired, but without any of the benefits. I will finish by quoting Sir James Munby. I know he has been cited regularly, but the hon. Member for Spen Valley said yesterday that, having listened to Sir James, she set herself the task of designing a system that would satisfy a former president of the family division. I am afraid to say that she has not succeeded in her task. I will quote a few points that Sir James made in response to the proposals in these new clauses. He stated:

“The process…is simply not apt to enable the panel to perform its function…The panel is given an extraordinary degree of discretion in relation to the process it is to adopt”.

He suggested that the panel is

“little more than a rubber stamp providing a veneer of judicial approbation”—

I do not think that rubber stamps provide veneers, but his point is well made and I respect it—

“and that is fundamentally unacceptable”.

Finally, he said:

“If the panel is to perform its function effectively and do more than just ‘check the paperwork’—if it is to be the real safeguard intended by its proponents—then its processes must be much more thorough than is currently proposed…All in all, in relation to the involvement of the panel in the process, the Bill still falls lamentably short of providing adequate safeguards.”

[Kim Leadbeater]

Many of us have quoted Sir James Munby, for whom I have a huge amount of respect, but there are a number of other views from ex-judges and very highly-regarded legal professionals that conflict with what Sir James says.

[Danny Kruger]

It would be very helpful if the hon. Lady could—not now; it need not be in the course of these deliberations—publish the evidence of that assertion. Which senior judicial figures have endorsed the new plan? It would be very helpful to hear from them.

We heard many criticisms of the previous regime. In my view, those objections prompted the change of heart that the new clauses derive from. From what I have seen, the weight of evidence indicates that we still have many of the problems that the High Court system had: a lack of effective powers and questions around capacity. We also have a whole new load of problems to do with the essential illegitimacy of a quasi-medical panel of people making an essentially judicial decision without the opportunity to hear in a meaningful way from all the different stakeholders who should be consulted.

[Naz Shah]

I want to understand and clarify something. The hon. Gentleman said earlier that the commissioner is sitting as a judge, but my understanding is that the commissioner is not sitting as a judge. What did he mean?

[Danny Kruger]

I think the hon. Member for Spen Valley said yesterday that we had to grapple with this confusion, which is that there is a judge not sitting as a judge. It is slightly like a Minister not sitting as a Minister; the Bill has provided all sorts of interesting hybrid creations of people who inhabit split personalities and dual roles.

The hon. Member for Bradford West is, I think, right. From the evidence we have heard from the hon. Member for Spen Valley, although there will be a judge, which satisfies the cosmetic need to present this as some sort of continuation of the High Court stage that the House of Commons voted for, they will not sit as a judge. It is rather like having a hobby or a second job. I am not sure judges do that, but it is like chairing a football club on the side. Their status derives from their judicial role, but they are sitting as the commissioner in a lay capacity—I think I have that right.

[Kim Leadbeater]

We have already talked about this, and I think the hon. Gentleman mentioned it himself: there is a similar situation with public inquiries, on which a judge sits because of their skillset and who they are, but not necessarily in a traditional judicial capacity.

[Danny Kruger]

It will be interesting to hear from the Minister, who is more equipped than the rest of us to opine on this. My understanding is that a judge sitting as chair of a judicial inquiry might not be sitting in court, but they are there because they are a judge; their function, as the chair of the inquiry, is essentially judicial. That is the only comparison and it is essentially different, because the exercise of a public inquiry is time-limited and specific to a particular case, which is to determine the truth or otherwise of what happened in whatever situation it is being asked to inquire into.

Here, we are setting up a quango—an arm’s length body of Government—that will sit in perpetuity and oversee a bureaucracy of state. That is something that no judge does in our system and, in my view, would be completely inappropriate for a sitting judge to do, even if we could find a sitting judge prepared to fulfil that function, which I think might be challenging.

The other key difference is that a judge chairing a public inquiry is appointed by the Lady Chief Justice; they are essentially judicial in their appointment and work. The judiciary appoints one of its own to fulfil a judicial function as the chair of an inquiry. It is being proposed here that the Government—the Executive, not the judiciary—appoint the chair of the commission from the Bench of judges.

[Naz Shah]

What the hon. Gentleman has said creates another concern for me. If we do have a judge, and if the expectation is that they sit in a judicial capacity, does that not raise concerns that an appeal is allowed one way—if an assisted death is refused—but not the other way, if someone wants to appeal against an assisted death? By definition, does that position not become compromised?

[Danny Kruger]

I am afraid that that is absolutely right. There is an essential problem with the role of the commissioner as the backstop—the Court of Appeal, as it were—for what are effectively judicial decisions made by the non-judicial panel. The fact that appeals can be heard only against a refusal and not an approval confuses the whole question of appeal and judicial review. It is plainly unjust, and does indeed compromise the idea that the judicial figure has the independence that a judge should properly have. I agree with the hon. Member for Bradford West.

[Naz Shah]

I want to speak to amendment (c) to new schedule 2, tabled by my hon. Friend the Member for Lowestoft. The amendment requires members of the panel to have undertaken training in respect of domestic abuse, including coercive control, and financial abuse. It extends the principle of amendments 20, 21, and 22, also tabled in the name of my hon. Friend, which require the medical practitioners involved in the assisted dying process to have undertaken similar training.

--- Later in debate ---

[Kit Malthouse]

I rise briefly to amplify a couple of points from the excellent speeches by the hon. Members for Rother Valley and for Ipswich. First, in clarification, I understand that there are situations where judges can sit in essentially supervisory positions—not least, for example, on the BBC board—and they can of course be Cross Benchers in the House of Lords. They are allowed to undertake other charitable trustee roles, although they are restricted in their activities.

[Danny Kruger]

I think this is important. Those roles are what those judges do in their spare time—they could also chair a football club or something as well. The point is that they are being asked here to fulfil a function on behalf of the Government in their working hours, explicitly because they are a judge—yet they are not sitting as one. Surely my right hon. Friend acknowledges that that is essentially unprecedented.

[Kit Malthouse]

No, I do not acknowledge that at all. Over the years we have started to use judges relatively flexibly—even, for example, for non-statutory inquiries; my hon. Friend has referred only to statutory inquiries—and that is so much the better. I am not a lawyer myself but I believe in the rule of law, so I think that having judges opining on our freedoms or otherwise is generally good for the country.

I want to amplify a couple of points. On Second Reading, I made the case for the High Court to be involved. I agree with my hon. Friend the Member for East Wiltshire: at that stage, I was very happy for there to be effectively a scrutiny and authorisation third layer to the Bill. My understanding of judicial opinion was that, certainly in Lord Sumption’s view, that level was unnecessary; I think he referred to it being a profoundly intimate conversation that really should just be between the patient and the doctor. However, I think my hon. Friend the Member for East Wiltshire is right that the weight of the moment and opinion in the House then was that there should be that third layer of scrutiny and opinion.

I also dismiss the argument about the capacity of the judiciary to absorb this. I fear that if we start to accept that argument, we go down a very difficult road for Parliament—not least, for example, because we should then have opposed the Bill that went through the House on Monday night, because of its greater impositions. As many will know, the Crime and Policing Bill went through without a vote. It will impose new burdens on the judiciary and the police, as will the new offence of spiking. No doubt the immigration Bill coming through will also put significant extra burdens on the police and the courts.

There are two separate questions here: one is what Parliament does, and the other is the capacity of the public sector to absorb that. The answer is not to say, “Well, I am afraid all you people have to go through a death you do not want to go through”; it is to say that we do not have enough judges and to recruit more judges, if that is required. In my personal view it is not, but at the time my view was that if as a footballer I could show up in the middle of the night and get an injunction to stop The Daily Mirror from publishing unpleasant stories about me, then the judges should be able to find time in their schedule to accommodate the requirements of my death.

[Danny Kruger]

My right hon. Friend is absolutely right. If Parliament decides that we should proceed, then we should, and the public sector will be obliged to make accommodation and provide the necessary resources. Does he agree that, on that basis, it would be appropriate for the Government to have clarified by this stage what the resource requirements of the new system would be, to make clear that there is the capacity in the system to do it? Does he share my regret that that has not been done?

[Kit Malthouse]

No, I do not share that regret, because until today, and until we all vote on it, the Government do not actually know what they are facing. They have undertaken that they will produce exactly the assessment that my hon. Friend is talking about between the end of this process and Report, so we can all have a look at what it will be.

At that point, Members can put a price on other people’s death and other people’s pain if they want to, but there are lots of situations where the House of Commons decides about things on the basis of moral principle and public interest, and then we ask the public sector to absorb it. If that causes operational problems, then we solve those separately. In my 10 years in the House, I cannot remember anybody ever standing up and saying, “We shouldn’t do this because the public sector can’t cope.”

--- Later in debate ---

[Lewis Atkinson]

I rise to respond to some of the points made by the hon. Member for East Wiltshire. I looked back on the Hansard report of the Second Reading debate and his position there, and I am somewhat confused. In his speech in that debate, he was entirely dismissive of the judge as a safeguard, but now, in Committee, he seems to have had a Damascene conversion in favour. That gets to the question of whether, as others have asked, there are any safeguards that would satisfy opponents of the Bill in principle.

I entirely respect the position of principled opponents to the Bill.

[Danny Kruger]

I look forward to hearing the hon. Member’s substantive remarks, but in explanation I should say that there are no safeguards that I think will make an assisted dying Bill adequate. I will oppose the Bill whatever happens because I think it would be dangerous for people however we do it. But if we are going to do it, let us do it as safely as we can. There are definitely ways in which we could improve the safety of the Bill, which have been suggested in the many amendments I have supported.

On the point about the judicial stage, I am very critical of clause 12 as it stands because it does not provide sufficient rigour and there are major questions about the capacity of the judiciary, as has been discussed. But the principle is absolutely right. It is important that, if we are going to do this, we have a judge to make the final decision. I was not satisfied with the Bill as presented, but I think we should be building on it, rather than reducing the judicial safeguard.

[Lewis Atkinson]

I thank the hon. Member for that point, but when someone cannot describe any version of safeguards that would be possible, and in the light of some of the other conversations we have had, one is led to believe, entirely respectfully, that some people are opposed to the Bill in principle in any instance.

The point that my hon. Friend the Member for Spen Valley made on Second Reading that this was the safest model in the world was not just about the fact that there was a judge, but about the fact that there was a third tier. That is not something that is in place in Oregon, or even in Australia, as we heard in evidence. Now, not only are we going to have a third tier of scrutiny, but we are going to have three professionals who must unanimously accept that the strict conditions for eligibility have been reached. I absolutely refute the suggestion that amending away from a High Court model and towards a panel model means that we have to recant any suggestion that this is the strongest model in the world.

--- Later in debate ---

[Lewis Atkinson]

No, I am in a flow, so I am just going to keep going. I am mainly rebutting at this point, and I do not want to open the debate that much wider.

Invariably, we already have individuals at the end of their lives with multidisciplinary input that is appropriate to them, and we have heard already how the independent doctors and the panels will rightly seek input from all those involved in care.

It has been some time since the hon. Member for East Wiltshire and I had an exchange on our difference on the ventilator test, but I know that we have a fundamental, philosophical difference on that. I believe that a dying person saying, “Please, doctor, turn off my ventilator; I want to die,” is not fundamentally different from that person saying, “Please, doctor, let me take that medicine; I want to die.” I assert that the person in the street is closer to my view of that situation than to his, although I respect that people have different philosophical opinions about it. However, let us not forget that we sometimes conduct this debate about the correct oversight of the third tier in a theoretical manner, as if these people were not dying anyway, and as if deaths relating to refusal of treatment, and suicide, were not happening anyway.

[Danny Kruger]

Let us not rehash the argument about whether there is a difference between withdrawing treatment and actively killing somebody or giving them the opportunity to kill themselves. On the point about withdrawal of treatment, does the hon. Member acknowledge that when there is dispute over whether somebody should have their treatment withdrawn, it goes to a court and there is representation from both sides of that argument about whether the treatment should be withdrawn? If he is saying that these measures are essentially identical in principle, surely we should have the same mechanism to resolve disputes.

[Lewis Atkinson]

I thank the hon. Member for his intervention, but I am afraid he is confused. It goes to the Court of Protection when the individual is not capable of making that decision and there is a dispute about what the best-interests decision may be for that individual. That is entirely different from the dying person saying, “Please turn off my ventilator.” In that case, the Mental Capacity Act 2005 applies, as we have discussed at length in the Committee, but there are no further checks for coercion, capacity or motivation in the way that has been described. With the three panel members, we will now have at least five professionals, who must all be satisfied that there is no coercion. How many individuals should there be?

I see speculation, including on social media, about the number of people who might seek an assisted death and who may be subject to coercion. How many people who refuse treatment at the moment, without any of those checks, are subject to coercion? How many people who go to Switzerland, or who end their own lives, are subject to those checks? We do not know because we have no robust oversight of those instances. While I have absolute sympathy with the points raised by my hon. Friend the Member for Bexleyheath and Crayford, who made a very thoughtful and personal speech, as he always does, the exact same instances that he described would be permissible right here and now.

The hon. Member for Reigate shared some upsetting stories, I think from Canada, about the impact on family in speaking to the amendments on that subject. First, I point out that Canada’s system is nothing akin to the one that we are proposing, because it does not have the third-tier protections that my hon. Friend the Member for Spen Valley proposes in the Bill.

However, it is also important that we bring the debate back to talking about dying people here in the UK, and that we have some of their voices and experiences, and their families, in the room. We know that already, 650 terminally ill people end their own lives each year in the UK. Anil Douglas’s dad, Ian, took his life the day before his 60th birthday. He was in the terminal stages of multiple sclerosis, and he ended his own life without notifying his family, because he felt he had to protect them, due to the state of the current law. He managed to obtain opioids from the dark web and subsequently overdosed. In his final note, he wrote:

“I would like to have to put on record that had we had more sympathetic assisted-dying laws in this country, in all probability I would still be alive today.”

I will give one more example. On returning home from a trip to London, Peter Wilson discovered his wife, Beverly, dead in their home. She had terminal oesophageal cancer and had taken her own life, alone at their home in Nottinghamshire, when she knew that Peter would be 120 miles away. Even though Peter could prove that he was not present at the time of death, he was questioned by police for seven hours, and he was fingerprinted and photographed within hours of her death. That is the current situation that families—those we have discussed maximising care for—are facing in the UK. That is why we need a change in the law that includes robust, third-tier oversight.

--- Later in debate ---

[Sean Woodcock]

That is my next point—and it is a good question. As I said, the panel is done with the right intention and would improve the process in many ways. My view is similar to that of the hon. Member for East Wiltshire—it is possibly one aspect on which we are in agreement—in that I think it comes at the wrong part of the process. If it was earlier in the process, it would improve things. Court capacity is an issue, but I take the point made by the right hon. Member for North West Hampshire that if we want the courts to do it, they need to get on and do it.

I keep coming back to the issue of what we are asking the state to do. Implementing the wishes and autonomy of the patient is important, but we also need to take very seriously what we are asking the state to allow to be done in its name. There is also the crucial matter of public trust, the condition of the national health service and the issue of capacity in the courts. As my hon. Friend the Member for Ipswich touched on, there is considerable disquiet and concern about how robust this process is going to be. Even though I think having the panel at the start of the process would improve what was put to the House on Second Reading, having judicial oversight at the very end would provide reassurance to the vast swathes of the public who are concerned about this, as well as to Members.

[Danny Kruger]

The hon. Gentleman is making an important point and I completely agree. Does he agree that the hon. Member for Spen Valley recognised the problems with the lack of a multidisciplinary team in the process and the problems of court capacity, and through her attempt to address both those problems we now have a multidisciplinary team instead of the judicial role? What we really need is both: we need a properly constituted multidisciplinary assessment at the beginning, and then we need the final process to be an approval by a judge. Does the hon. Gentleman agree that that would be a better process?

[Sean Woodcock]

Having thought about it, that would be my preference. I am in a difficult position in that there is a lot to be said for the panel, and it would improve the process in many ways, but I cannot get around the fact that the judicial aspect was put strongly before Parliament, and ensuring that we would have those safeguards provided reassurance to Members. When I have been out on the doorstep talking to people who are in favour of the Bill—people who wanted me to vote in favour of it—they have said to me that they think the proposal is safe because it includes two doctors and judicial oversight. That does come up, which is why I think we need to keep judicial oversight in the Bill. I do, though, I recognise the very genuine attempt by my hon. Friend the Member for Spen Valley to introduce the panel to improve on some aspects and address the concerns expressed in the witness testimony.

--- Later in debate ---

[Sarah Sackman]

It is a majority vote for the other decisions that a panel may make, but in respect of certification, the decision is unanimous. Paragraph 5(2) of new schedule 2 states:

“Decisions of a panel may be taken by a majority vote”.

Such decisions include whether to hear from an additional expert, or whether further investigation is required in respect of an aspect that the panel may be concerned about, such as coercion or capacity. While those decisions can be taken by a majority vote, in respect of certification and granting a certificate of eligibility, I refer my hon. Friend to paragraph 5(3), which states:

“The panel is to be treated as having decided to refuse to grant a certificate of eligibility if any member votes against a decision to grant such a certificate.”

That is a slightly mealy-mouthed way of saying that if any member of the panel resists the grant of the certificate, no certificate can be issued.

[Danny Kruger]

I just want to support the hon. Member for Bradford West. She is absolutely right. It is clearly intended that there should be a unanimous decision but, in fact, as the hon. Lady pointed out, if one of the members decides effectively to abstain, the procedure does go ahead. It is not that they all have to actively support the decision; only two of them have to do that. One of them could have their doubts and sit on their hands, and it would still go ahead.

[Sarah Sackman]

That might be something that other hon. Members wish to take away with them, whatever the policy intent may have been. In fairness, I do not think that the question of whether there is a requirement to give a positive indication of a decision either way is on the face of the Bill. However, I think that clearly the intention behind paragraph 5(3) of new schedule 2 is that there is unanimity in relation to the grant of an eligibility certificate.

--- Later in debate ---

[Sarah Sackman]

There is no doubt that, as we will see later, the panel would be subject in all its decisions to public law principles, including procedural propriety. The absence of any suggestion of bias—even of the appearance of bias—is an important public law principle. In any event, given the recruitment process, the interviews that would be undertaken and the professional standards to which all these people would be held, I think that they would apply their independent and impartial skills and judgment to the decision making and the assessment of eligibility in a manner appropriate to the task set out in the Bill.

One would expect professionals on the panel to adhere to their professional standards and act with impartiality in ascertaining whether the eligibility criteria have been met. Speaking as the Minister—indeed, even speaking for myself—I have no reason to doubt the independence, impartiality and professionalism of the panel or see any suggestion of bias.

[Danny Kruger]

I appreciate that an impact assessment is due to come later, after we have debated whether we should have this system or not. Nevertheless, will the Minister tell the Committee whether officials in her Department or in the Department of Health and Social Care have informed the hon. Member for Spen Valley whether the workforce will have sufficient capacity to provide the professionals required? Has any estimate been made of the number of people who will be required to step forward to take part in these panels?

I note the point that the reason why the proposed High Court stage was dropped was not that Ministry of Justice officials had informed the hon. Member for Spen Valley that the family court system would be overwhelmed. Can the Minister confirm that there was no communication to the hon. Member that the courts would not be able to cope with the demand? That was clearly reported in the media at the time, but can she confirm that it was not the case?

[Sarah Sackman]

The hon. Gentleman’s first point is a matter for the impact assessment itself. Clearly both Departments have data on the state of the professions, on how many KCs there are in the country and on how many people will be needed to provide the service. As I say, if Parliament wishes it and legislates for it, the state will work to deliver it, but the detail will come in the impact assessment.

On the hon. Gentleman’s second question, as I made clear earlier, the effective shift away from the High Court model in clause 12 to the model in the new clauses has been driven by the policy intent of my hon. Friend the Member for Spen Valley. I will not get into the precise chronology of when the matter was raised, but it came from my hon. Friend.

Yesterday, I hotfooted it from the Committee to Justice questions, where I was delighted to see the hon. Member for Reigate. We discussed capacity issues in our Crown courts and civil courts. Those issues are well reported in the media, but there is no connection between them and the policy shift here. If this is what Parliament chooses to legislate, the state will work to deliver it.

--- Later in debate ---

[Danny Kruger]

I appreciate the Minister’s point about the Parole Board. Does she acknowledge that in the Parole Board example there is the essence of an adversarial system, because the victim is invited to give a statement? The board therefore hears opinions from, as it were, both sides of the case. Who will fulfil that second role in the proposals before the Committee?

[Sarah Sackman]

I drew the comparison for the purpose of showing where judges and legal experts are deployed in a multidisciplinary forum that is not a court or tribunal. I was not suggesting that there is a straight-line analogy. After all, a Parole Board panel is performing a different function to make a global assessment of risk. That is what it is ultimately doing; it is not strictly speaking an adversarial process in that sense.

The situation that the Bill addresses is that of an individual seeking to establish their eligibility for a right that—if the Act is passed—Parliament will have conferred on those who meet the criteria. It is not an adjudication. It is the panel’s function to assess, through the various conversations and provisions and by interrogating the information that has been provided, whether it is properly satisfied that the eligibility of the person’s election to avail themselves of that right is sound.

Terminally Ill Adults (End of Life) Bill (Twenty-third sitting)

Danny Kruger Excerpts

Committee stage
Wednesday 12th March 2025 Public Bill Committees

[Jack Abbott (Ipswich) (Lab/Co-op)]

I feel huge responsibility for my “EastEnders”-style ending, Ms McVey. Unfortunately, my speech is not going to be as radical as some may have hoped.

I was discussing the bandwidth or capacity of the professionals involved in the process. We have been very good at leaving party politics at the door, but Opposition Members have mentioned the state of the NHS and the wider healthcare system on a couple of occasions. I could probably go further and mention the huge backlogs in the courts and wider criminal justice system. It is fair enough to consider the Bill in that wider context; I have considered that point deeply, as I know Members from across the Committee have.

We asked earlier whether there is capacity in the system to support the panels—that is, are there enough psychiatrists and social workers? However, it is inconsistent to then also say that we need more psychiatrists and social workers in other areas of the process. I am not sure that we can have it both ways. This is something to consider—the Committee has discussed it—but ultimately it is a matter for Members of the House.

The Committee is not here to debate whether the systems in place can deal with an assisted dying Bill. Whether or not assisted dying is introduced into our healthcare and judicial systems, it will not fundamentally change the challenges that the country faces in these areas. We are here to ensure that we present back to the House a Bill that has the safeguards and balances that I mentioned this morning, so that it can progress. I certainly would not want to produce anything that paralyses the system, but new clause 21 would not do so. In fact, in the long run, the panel approach would help the process along. For that reason, I am not sure that the capacity of professionals provides a valid argument against the panel—if anything, quite the reverse. As I said, that point really was not worthy of an “EastEnders” cliffhanger.

We have had positive murmurings and acknowledgments about amendment (e) to new clause 21. The panel approach represents a huge leap forward. I appreciate that Members in the room and across the House may say that the approach does not go far enough. I go back to my earlier point: for some Members, no amendment, change or safeguard will ever be enough for them to support the Bill. As a Committee, we have to come out with a strong, robust process that puts the patient first, and ensure that we are acting in their interests. We must make sure patients are safe and have the capacity to make these decisions, but I do not want any individual looking to go down this route to be stuck in endless meetings or courtrooms, when they should be spending time with their loved ones. I think this strikes the right balance between safeguarding—bringing in all of the professional expertise that we have been looking to do as a Committee—and making sure this process is fair and equitable. I urge Members to support amendment (e) to new clause 21, but I will also be supporting the new clauses today.

[Danny Kruger (East Wiltshire) (Con)]

On Second Reading on 29 November, the hon. Member for Spen Valley said:

“Under the Bill, any terminally ill person who wants to be considered for an assisted death would have to undertake a thorough and robust process involving two doctors and a High Court judge. No other jurisdiction in the world has those layers of safeguarding.”—[Official Report, 29 November 2024; Vol. 757, c. 1019.]

There can be no doubt that the High Court judge safeguard was presented to the House as globally exceptional, unusually thorough and robust, as compared to other jurisdictions. It was also a prominent feature of the public campaign around the Bill. We were told it was a Bill designed for exceptional circumstances, with robust safeguards—the High Court judge being the pre-eminent one. It was not a trivial detail; it was the centrepiece of a safeguarding regime arranged around a small number of vulnerable people. Over 60 Members of Parliament are on the record as saying that it was this safeguard that helped persuade them to vote in favour on Second Reading.

[Kim Leadbeater (Spen Valley) (Lab)]

I will stand corrected if this is not true, but my understanding is that Hansard will show a very different story. I do not think that 60 people got up and said on record that this element was why they were voting for the Bill.

[Danny Kruger]

To be clear, I was not suggesting that they all said so on Second Reading, because not everybody spoke in that debate—nor am I saying that it is only because of this safeguard that MPs voted for the Bill, but there are 60 colleagues of ours who have cited the judicial safeguard as a reason for supporting the Bill. Indeed, I hope the Committee will agree that this was always presented as a very significant aspect of the safeguarding regime, if not the most significant aspect. I suggest it was the most significant, because it enabled people to argue that this was the strongest Bill in the world, given that other regimes do not have a judicial element.

I opposed the Bill on Second Reading and I expect that I will oppose it on Third Reading, but I respect the Committee process enough to accept that the House wanted the Bill debated. Because I respect the process, I have not opposed clauses that concern the heart of the Bill, but we are now going to see the hon. Member for Spen Valley, Government Ministers and their supporters vote against this clause—the essential safeguard in the Bill, and the principal element used to persuade the House that the Bill was safe—standing part of the Bill. It is an extraordinary thing that we are going to see the Bill’s promoter and the Government oppose the centrepiece of this Bill.

[Kim Leadbeater]

I understand the hon. Member’s framing of this and it might very well be his perspective, but there were 650 MPs who voted on Second Reading that day, so I think it is unfair to represent colleagues who did not have the view that this is the central component of the Bill. There are lots of other components to the Bill that colleagues have certainly spoken to me about, and it is important to acknowledge that.

[Danny Kruger]

I am happy to acknowledge that there are many other components of the Bill, but many Members, including the hon. Lady, cited this safeguard as an essential element of the safeguarding regime—if not the most essential. Crucially, it was presented to the House of Commons as such, and it is a central clause of the Bill, and the hon. Lady is now proposing to vote against that element. My view is that a change this substantial—a fundamental and radical change to the structure of the process that is being designed—should be presented on Report. The whole House should have the opportunity to discuss and debate properly whether that element should be changed. Every Member should have the opportunity to have a say on this central point.

[Tom Gordon (Harrogate and Knaresborough) (LD)]

The hon. Gentleman will have to forgive me, because I am a relatively new MP and there are still bits of parliamentary procedure that I have not yet got my head round, but is it not the case that MPs will have a say on Report, when they can table amendments to take the Bill back to how it was? That point could therefore be debated on Report.

[Danny Kruger]

Of course that is correct: a small number of amendments will be selected for debate and vote on Report, and if somebody wants to table an amendment on this issue it might indeed make it through Mr Speaker’s selection, but the point of the Committee process is to consider the Bill that was passed on Second Reading and come back to the House with the Bill either unamended or amended. This is a very substantial change to the Bill that was presented and voted for on Second Reading. As I say, many Members supported this clause, no doubt including the hon. Gentleman.

[Kim Leadbeater]

The hon. Gentleman is making a point that we hopefully all agree with. The job of the Committee is to take evidence and look at ways of improving the Bill on that basis. This is a really good example of where we have actually done our job and done it very, very well.

[Danny Kruger]

I do not think the hon. Lady can say she has done her job very, very well if, after presenting a Bill, and after months and months of work and debate, including many hours’ debate on Second Reading, she suddenly decides that its central part is deficient. She talks about the opportunity for the Committee to take and debate evidence, but we have not had evidence on this new element—these new clauses and the panel process. There were vague suggestions from some of the people we heard evidence from that it might be appropriate, but although we heard evidence on the High Court stage and the deficiencies therein, we have not had the opportunity to properly examine the panel element that is now being introduced.

[Kim Leadbeater]

Will the hon. Gentleman give way one more time?

[Danny Kruger]

With great pleasure.

[Kim Leadbeater]

I thank the hon. Gentleman for giving way again; I will sit down after this. I will not take it too personally that he thinks I have done a very poor job, but the point is that we heard a broad range of evidence from professionals including legal experts, medical experts, psychiatrists and social workers—lots of different people. We have also had evidence come in over recent weeks and months that has added to that and has talked about these changes. It is important to acknowledge that.

[Danny Kruger]

The hon. Lady must not apologise for intervening on me. I can hardly be one to object to people intervening. This is a very good forum for the kind of exchanges we are having, so I am very happy to take interventions. She is absolutely right that lots of evidence has been presented. I cite it myself all the time. Further evidence is coming in, and much of it is very critical of the new proposals. That is an absolutely fair point, but my point remains that we invited witnesses and had three days of evidence on a Bill whose core safeguard has now fundamentally changed—well, it has not changed yet, but I suspect it is about to.

[Dr Marie Tidball (Penistone and Stocksbridge) (Lab)]

I supported the Bill on Second Reading on the basis of the High Court proposal, but then read very closely the evidence from Justice Munby on the need for a strengthened evidentiary process so that this is not just a rubber-stamping exercise. He said, secondly, that it would be better to replace the High Court with another system because of the position that it would place judges in. Having listened to 50 witnesses, I am satisfied with this proposal; I was persuaded through this cross-party process, which is an incredible example of deliberative decision making. Does the hon. Gentleman agree that our ability to amend the Bill where the evidence shows that we must do so demonstrates the strength of this process, and has enabled us to produce something much better and more in alignment with public opinion?

[Danny Kruger]

I greatly respect the position that the hon. Lady has come to. She has been persuaded that this is an improvement on the Bill, and I respect that. I recognise that that is what the hon. Member for Spen Valley and others think, but I am afraid I do not accept that the process has been adequate. The hon. Member for Penistone and Stocksbridge cites Justice Munby and others who criticised the High Court proposals. I also have my criticisms of them—I think they were inadequate—but the response to that is not to scrap them all together, but to strengthen them, as Justice Munby suggested. The hon. Lady will know that Justice Munby is not supportive of the new proposals either; he thinks they also fail the essential test of being an effective safeguard. Nor does the new proposal—the panel—provide the opportunity for evidentiary investigation, which would indeed be appropriate if we were to have a proper safeguard at this stage. I respect the hon. Lady’s position, but I am not persuaded.

[Lewis Atkinson (Sunderland Central) (Lab)]

rose—

--- Later in debate ---

[Danny Kruger]

I am about to come to that. I am going to suggest how we could have done it better. I take the hon. Member’s point. I do need to answer that question.

[Kit Malthouse]

I am just intrigued. My hon. Friend is talking a lot about the evidence. Did any evidence on anything in the Bill change his mind on any aspect of it?

[Danny Kruger]

Was there any evidence that changed my mind?

[The Chair]

That is out of scope of the group, but you carry on and think, Mr Kruger.

[Danny Kruger]

Thank you, Ms McVey. I do not want to be facetious because it is a serious point, but lots of new points were made in evidence to the Committee, including some in favour of the Bill as it is and some of the amendments that I have opposed. We have had some helpful evidence that has helped to shore up the case made by the Bill’s promoter, as well as evidence that suggested otherwise, and some points in debate have been very well made. I was nearly floored by an intervention by the hon. Member for Chesham and Amersham yesterday, for instance. I do respect the points that have been made in Committee, including at the evidence stage.

My suggestion is that we should be doing this on Report, if we do it at all, because that would reflect the seriousness of the proposal and the fact that the House voted for the clause on Second Reading. There were problems with the High Court stage, as has been acknowledged, and others have referred to it in support of the change. I want to quickly acknowledge, perhaps in response to my right hon. Friend the Member for North West Hampshire, the points made by Lord Sumption, Max Hill, Alex Ruck Keene and Nicholas Mostyn—all senior barristers and judges. It became obvious that there were significant issues, particularly around the power of the court to investigate applications or to hear evidence on them, and about the capacity of the judicial system to cope with the demand.

It was clear that further thought was needed on the High Court stage. Indeed it was apparent that further thought was already under way. There is an interesting exchange in the record of the evidence sessions between the Justice Minister, the hon. Member for Finchley and Golders Green, and those witnesses, particularly Max Hill, who said that he was quite close to the construction of the Bill. That clearly shows, in my view, that there already was thinking under way behind the scenes that have led to these changes.

My view is that, rather than ditching clause 12, we should be seeking to make it work in ways that many hon. Members have proposed. I am afraid we just skipped over those proposals in earlier groupings on the clause because there was no point—we were obviously proceeding to the stand part debate and to eliminate the involvement of the court all together.

There were things the Committee could have set itself to address, but we have not done that. I hope you will excuse me, Ms McVey, for making what might be a cynical observation: I think the High Court stage was recognised as popular and as useful to the campaign to get the Bill through the House of Commons. It was predicated specifically on the point, which was clearly communicated and understood by the public, that this measure of assisted dying is intended for very few people. It is for the most exceptional cases: people at the very end of their life, in desperate circumstances, in desperate pain and suffering. Very few people need it. However, I believe this change is predicated on the real intent of the Bill: far wider eligibility than just that tiny group.

We have seen that through the rejection of a series of amendments that would have restricted eligibility specifically to that group—a group for whom we all understand the case for an assisted death; again, the public support it in those specific cases of people at the very end of their life, who are suffering intolerably. The Bill is not restricted to that group only, and that is why we need to redesign the system to enable this larger group to make use of it.

[Kim Leadbeater]

The hon. Gentleman is been very generous with his time. I am interested in how he can conclude that the eligibility criteria have somehow been expanded by adding an expert panel with a psychiatrist and a social worker.

[Danny Kruger]

I am sorry; I did not intend to give that impression. That is not what I am suggesting. What I am saying is that we have seen the rejection of a series of amendments that would have restricted eligibility, or ensured that only certain people would be eligible: those for whom we all understand the reason for the case for assisted death. Whether our amendments related to the burden, the pain, or questions around capacity and coercion, our amendments would have restricted access to only the most desperate people.

On that basis, it would have been appropriate to have a High Court stage, because the High Court could have accommodated that lower demand. Given the opportunity that the Bill affords to a larger group of people to gain access to assisted death, it has become obvious—I presume, in the mind of Government and others—that there is insufficient capacity in the court system to accommodate the regime being instituted here.

I think the question of High Court capacity has been driven by the desire for a system that can cope with many thousands of deaths per year. I have seen ranges suggesting between 6,000 and 17,000 deaths per year. If Members have other calculations or estimates, I would be grateful to hear them. In fact, it would be good to know whether the Government have done any estimation of the numbers we are looking at.

It is not simply a case of averting those desperate cases of people who help their relatives to die by going to Switzerland or who assist them in committing suicide in other ways—we heard from Max Hill that only a handful of cases cross his desk every year. It is clearly the intention to greatly widen the scope beyond that desperate group. It is unclear what the overall number is, but my strong sense is that we are looking at many thousands, and for that reason, it has been decided that the High Court would not have the capacity to cope with this.

[Jack Abbott]

We go back to the inconsistency argument. On the one hand, we are saying that we must have more psychiatrists, social workers and palliative care experts in the process. This change is now being proposed, and the hon. Gentleman is using that as a reason to say that there is bad faith here and the sponsors of the Bill just want to widen the scope. I do not think he can have it both ways.

[Danny Kruger]

I am not suggesting bad faith here. I think there is a genuine view, and it might well come from the Government’s official advice, that the Bill, as drafted and as amended, will allow many thousands of people to gain access to assisted death every year. On that basis, we will need a system that can cope with them. The judiciary clearly communicated that it could not cope, and I understand why it would do so.

[Jack Abbott]

I appreciate that, but just this morning we heard from the hon. Member for Reigate that, because there are not enough psychiatrists and social workers, this panel is not workable either. Again, there is an inconsistency here. There is either enough capacity in the system or there is not—which is it?

[Danny Kruger]

I am sorry to disappoint the hon. Member, but I am afraid I am going to have it both ways. I think the Bill is profoundly flawed, particularly if large numbers of people will be going through this system. Whether they are going through a judicial system or a panel system, there will be huge capacity constraints on the professionals involved, and we have transferred that responsibility and that problem from the judiciary to psychiatry and social work—unless, of course, it is a rubber-stamp exercise, which I fear it might be, but even then, we are still involving psychiatrists and social workers in a rubber-stamp exercise.

[Jack Abbott]

But that demolishes the central argument that the hon. Gentleman is making. On the one hand, he says that we are expanding access, but on the other, he says that the panel system will not be able to expand it. If the motive of the promoter of the Bill was to expand the system to make more people eligible, the hon. Gentleman has just said that the constraints of the panel will mean that that does not happen anyway. He is conflating different things and being totally inconsistent.

[Danny Kruger]

All right. I regret my failure to assuage the anxieties of the hon. Member.

Let me explain why it was so important that we had a judicial stage. My complaints were never against the principle, but always against the practicalities, for the reasons I have just given and will go on to say more about. The value of a judicial stage is that it gave the doctors certainty and, indeed, protection for the process they were responsible for.

I want to cite the evidence from the Medical Defence Union, which provides doctors with insurance against claims of medical negligence. Responding to the suggestion that judicial involvement could be replaced by some other decision-making body, it stated:

“The MDU strongly rejects this assertion. The involvement of the judiciary is essential. Its absence leaves doctors unduly exposed. Media reports suggest that an alternative safeguard is being mooted. No ‘independent panel’, however so constituted, can replace the legal authority of a course of action sealed and ratified by a judge. Doctors deserve that certainty when relying upon this Bill to provide the very best for their patients at the most delicate moment of their duty of care.”

I will also cite the evidence that we received from Ruth Hughes, a senior barrister with 17 years of experience in mental capacity law. I cannot say that she is a King’s counsel because she does not become one until later this month—congratulations to her. She stated in her written evidence that

“if there is no judicial declaration because the judicial safeguard is not enacted, then there is a risk that the estates of persons who have been assisted to die will be sent into turmoil. This is due to the possibility of arguments being made that beneficiaries of the estate have ‘influenced’ the person into obtaining the assisted death.”

She said that

“even if there is no conviction but another person asserts there was ‘influence’…not undue influence”—

and certainly not coercion, which is banned by the Bill—

“but a lower standard of ‘influence’ by a beneficiary of the estate…then the personal representatives will be advised to obtain directions from the Court as to how to administer the estate.”

Her point is that, even if the bar for the assisted death is met, in terms of influence, coercion and so on, the testamentary or probate challenges that the estates will then go into are considerable.

The fact is that somebody has to be the judge—somebody has to take legal responsibility for the decision that is made. In the common law system, we do not give powers of life and death to panels; we give them to legally constituted bodies with judicial authority. To cite the MDU again:

“To put it plainly, without judicial involvement someone will have to take responsibility for the legality of the action.”

[Dr Simon Opher (Stroud) (Lab)]

Again, I thank the hon. Member for quoting all this, but does it mean that he supports the original clause 12?

[Danny Kruger]

I will be voting for clause 12 to stand part, because I think it is an essential safeguard, but it is not strong enough. There are all sorts of problems with it around capacity and the way it is constituted, and I will come on now to how I think it can be improved.

[Dr Opher]

indicated dissent.

[Danny Kruger]

The hon. Gentleman does not seem impressed by my straight answer to his straight question. Yes, I do support clause 12. I think we should strengthen it, in the ways that I will now explain. We do need a court, and I think Parliament was right to demand this, or to support it. We have a comparable model in the Court of Protection, which applies when there are disputed decisions about whether to withdraw life support. By the way, I mention to hon. Members who have referred to this—just to go back to an earlier debate—that, with the Court of Protection, one is obliged to notify the family. So even there, when there is a decision to withdraw life support, the family is notified, but we have decided not to notify the family under this Bill. But anyway, the Court of Protection does provide an appropriate comparison.

Whether we are talking about the Court of Protection or the High Court, either would work if the system was set up right. The crucial thing, in my view, is that it needs a proper adversarial arrangement so that the judge can actually judge. The way that judges work in this country, under the common law system, is that they hear arguments and then make decisions. It has been suggested that there could be a role for the official solicitor in acting “for the state”, as it were—or indeed “for society”, perhaps, or however we would want to put it—to perform the role of challenging the application and taking responsibility for presenting any alternative pieces of information that the judge should consider.

[Jack Abbott]

I do not want to make implications about what the hon. Gentleman might be saying, but am I correct that, with the adversarial position that he is supporting, a person coming to the end of their life, who had gone through this process, would essentially have to argue their case in front of a judge?

[Danny Kruger]

No, I do not think it is necessary for the applicant to come to court and present their case—that might be completely impossible or inappropriate—but a case does need to be made to the judge about why it should proceed, which is part of the original proposal. Indeed, that is what is proposed under the panel system as well: the case is made for whether it should go ahead.

My suggestion is that there needs to be representatives of the applicant—who may want to appear themselves—but there also needs to be somebody who is putting the other side of the story: “Maybe this isn’t the right thing to do. Has the judge considered these parts of the evidence, or this aspect of the report from the assessing doctors?” That would be an appropriate procedure, which is completely consistent with how these important decisions are taken in other aspects of our system.

[Jack Abbott]

There is a difference between an adversarial system and an inquisitorial system, which is what I believe is proposed for this panel. The panel would take not an adversarial but an inquisitive position. I do not think that is a million miles away from what the hon. Gentleman is saying, but there is a distinct difference. If he is arguing for the panel to take an adversarial position, that is very different from where the panel currently is.

[Danny Kruger]

Yes; it would be inappropriate to ask a panel to operate in an adversarial system. It would be inappropriate to ask a psychiatrist and a social worker to act as a judge. We need a proper court system, as we always do with other important decisions in which two sides make arguments. Let me try to explain. I agree that what is being proposed is an inquisitorial system through a panel, which is completely alien to the British common law model of making important decisions. That is what is being suggested, but I do not think it is appropriate.

I do not believe in assisted dying; I think it is the wrong thing to do. But if we were to do it, we should have a proper multidisciplinary team at the outset—I sort of feel that that is where we have got to through these debates, and if the debates had happened properly and prior to the Bill being drafted, something more like this system might have been proposed. Perhaps a doctor does the first declaration as proposed, but we then go into a proper multidisciplinary team, rather than just having the options to refer to psychiatrists if appropriate or to maybe consult palliative care specialists.

The involvement of all the appropriate specialists in assessing capacity and coercion, making clear the alternatives that the patient has, making a proper diagnosis, and hearing from family members—all the appropriate processes that should be followed in a case like this—should happen at the very beginning of the process. There is no need for a lawyer at that stage on the multidisciplinary team that we have created; it will be a proper combination of clinical and social work professionals. Their reports would then feed into the judicial process, which would be the second or third stage, if we have a doctor at the beginning. The judge would then hear arguments from, as it were, both sides. That need not be a distressing or time-consuming process, but it would be an appropriate one under British law to make decisions of life and death. That court would clearly hear arguments made by both sides.

[Kit Malthouse]

To be clear, does my hon. Friend envisage that I would either be in the hearing, or lying in my bed listening to the hearing—the fungating tumours in my neck restricting my ability to breathe—having gone through all the eligibility criteria, but having to listen to someone argue that I should go through a death that I am trying to avoid, by arguing that I do not have capacity? Does he not see that that could be profoundly distressing to someone who is in the closing moments of their life? In many ways, it might actually be cruel and traumatic for me to hear somebody arguing, frankly, that I should endure the pain, in their opinion.

[Danny Kruger]

I regret that my right hon. Friend is making that argument. The fact is that the panel is already going to consider whether it is appropriate. There might not be some professional who is there with the purpose of suggesting that there are other things that the panel should consider, but the patient is already lying there waiting for powerful people in another room to make a decision about whether they are going to get an assisted suicide or not. That process is already going on.

On my right hon. Friend’s point that it is intolerable for somebody to hear the case made against their assisted death, let me put to him an alternative hypothesis. Rather than somebody in the situation that he describes, let us imagine somebody who is the victim of years of coercive control, who has undiagnosed mental health conditions, who is feeling a burden on their family and whose relatives want their money. None of that has yet been fully identified through the initial doctor’s stage of the process, but it has been commented on in some of the evidence that the multidisciplinary team heard. That person might hope that somebody is there making the case for them, as might their family.

It is totally appropriate for a court to hear that this procedure should not go ahead because of those other factors, which are only now being properly understood by the decision maker. That decision maker is doing so openly, not in a private session. The decision is being made not by people who are committed to the procedure and process of assisted suicide, but by an independent judge, sitting in their judicial capacity in open court, with all the safeguards and accountability that the judicial system has. That feels to me like a perfectly appropriate safeguard, and I suggest that it is, in principle, what the House of Commons thought they were getting when they supported this.

[Sarah Olney (Richmond Park) (LD)]

I am just reflecting on the right hon. Member for North West Hampshire’s intervention. Does the hon. Gentleman not agree that the purpose either of the panel or the High Court judge is to establish beyond all doubt that if a person is assisted in their death, no crime is being committed, and that in order to establish that, we need to apply the highest standards of evidence? Whether an adversarial or an inquisitorial process is used to collect that evidence, there must be some sort of process. That may be uncomfortable for the patient but it is necessary for their friends, relatives and the doctors being asked to assist. That is really what we are trying to achieve.

[Danny Kruger]

I am grateful to the hon. Lady for making that absolutely central point. This is a judicial process, and a decision is being made. I recognise that the hon. Member for Spen Valley has correctly abandoned the claim that this is a judge-led process—because it is not—but the function of this panel will be essentially judicial, not least because the decision to proceed with an assisted death entails the people involved in administering it being exempt from criminal law and not being liable to prosecution under the Suicide Act 1961. We have made an exemption for what is otherwise a crime, and if they do not get the go-ahead from this panel, they will be committing a crime if they proceed. So in all essence, a judicial decision is being made, and it is right that we have the protections of a court.

Let me make a couple of brief points about the practicalities, and they have partly been made by others. The central point is that we do not know whether the professionals who will be required to take part in this panel have the capacity to do so. We know that the judges do not have the capacity under the current design of the law, which is an essential flaw—or we think they do not, because that point has been comprehensively argued by the judiciary and I suspect by officials at the Ministry of Justice. What we do not know is whether the psychiatry and social work professions have adequate capacity. There has been no impact assessment, and we have had a lot of comments from representative bodies expressing anxiety about the capacity of these professions to supply the panels.

The point I am trying to make is that we cannot, and should not, legislate in the dark. We should not draft laws in ignorance of these basic facts. We need to know whether the law before us is workable in the real world, and I would be grateful for clarification on that from Ministers when they speak to this clause. In my view, we need robust and clear data on how many professionals might take up the posts, and more importantly, we need the clearest and earliest warning of where there might be deficits that would compromise the entire system, particularly around the capacity of psychiatrists. We have a central problem with ignorance around capacity, but my strong view is that we do have a problem with capacity.

An important point was made by Alex Ruck Keene in evidence around the judge-led process, which we discussed earlier. His point was that it would not be possible for the judge to decline an assisted death on the basis of what he calls service denial—that is, there is not enough social care treatment or medical treatment available for the patient. If the reason why the patient were to receive an assisted death was that the local authority would not provide them with improvements to their home or funding, or that they could not get the medical treatment they wanted early enough, that would be a legitimate reason, or would not be a reason not to proceed with an assisted death. That is a very grave concern to us, and it is what happens in other countries. We heard this morning about evidence that when a patient is denied the medical or social care that they need to carry on living and living well, they are offered an assisted death. In those circumstances, I would really hope that the decision maker would conclude that it is wrong that we offer an assisted death, and that we in fact need to insist that they get the support they need to live well. I reference that because, as I understand it, there is no opportunity in the new clauses for the panel to decline an assisted death on grounds that it is being sought only because of the inadequacy of the wider care system.

It has been suggested that the judicial option remains, through the judicial review system. Other hon. Members have responded to that point, so I will not labour it. However, I want to make the point that new clause 17 makes judicial review less likely because it offers the opportunity for a sort of appeal. It is an appeal only in one direction—against a refusal—but there is a sort of appeal process in the system. As my hon. Friend the Member for Reigate said, if there is a JR, it is likely to take a long time. There is nothing about whether legal aid will be arranged. The state has proposed to pay for people to go through the assisted dying process, but is not prepared to pay anybody to challenge it, so they would have to raise their own money. It would also take a long time. It would be much simpler and better, whether it is a panel or a judge, to set up the system in a way that allows both sides to be told and that does not rely on a cumbersome judicial review system.

I reiterate that I support the multidisciplinary team. It is a very good thing that the hon. Member for Spen Valley has decided to introduce a proper stage at which a psychiatrist and a social worker will have to consider the application properly. I have concerns about how it would actually work, which I will come on to, but having a multidisciplinary team is in principle the right system. I stress that the professionals who made the case for multidisciplinary teams as part of the assessment process have not endorsed the new clauses. They are not saying that we have adequately met their concerns about the process.

[Kim Leadbeater]

I am not entirely sure who the hon. Gentleman is referring to, but it is fair to say that there is a range of views across a range of professions. It is important to acknowledge that.

[Danny Kruger]

I apologise; the hon. Lady is absolutely right. No doubt there are representative bodies, whether it is patients’ groups or bodies representing professionals, that are satisfied with the new proposal. I do not know which—genuinely, I just have not come across them—but I have no doubt that there are some.

[Kim Leadbeater]

To clarify, the point that I am making is that there is a range of views across a range of organisations—many of which are neutral on the issue of assisted dying, full stop—and a range of views within each profession. We heard evidence from people working in palliative care with different views, and from medical people with different views. It is important to acknowledge that.

[Danny Kruger]

Yes, a number are neutral. I will be grateful if the hon. Lady can tell the Committee if there are any representative bodies working with the professionals who administer end-of-life care that have endorsed either the Bill as it was or the Bill as it is. I do not believe there are.

[Kim Leadbeater]

I will check.

[Danny Kruger]

The hon. Lady is going to check. My understanding is that all the bodies that represent palliative care professionals and end-of-life specialists are opposed to the Bill as it was and as it is. I think there are straightforward reasons for that.

Everybody agrees that there is value in the multidisciplinary team approach. The British Association of Social Workers provided evidence setting out what it thought was needed, namely an MDT working at the assessment stage. This is not that. It is very important that we do not confuse the provisions made under the new clauses with a multidisciplinary team operating at the appropriate moment in the process. We have to have public confidence in the process. It is very important that the composition of the new proposed panels is not conflated with the separate matter of a multidisciplinary team model. It would be very unfortunate if that confusion obtained.

The Bill, as drafted, rejects the involvement of a multi-professional team model for the conduct of the assessments, preferring two doctors working alone without input from a multidisciplinary team. I recognise that there are opportunities for them to hear from other professionals, but it is not a multidisciplinary team in any recognisable sense of the term.

[Kim Leadbeater]

Will the hon. Gentleman give way on that point?

[Danny Kruger]

I will in a moment. I was going to finish by saying that it is not correct or accurate to give the impression that Dr Cox or the Association for Palliative Medicine supports the proposed approach.

[Kim Leadbeater]

It is really important to be clear about this. I do not think anyone is suggesting that what is in the Bill will replace existing good practice. That is really important. We probably all have family and friends who are being treated for cancer now, and they are looked after and cared for by a multidisciplinary team. That team does not suddenly disappear, to be replaced by what is in the Bill; it can continue. The assisted dying option involves the two doctors, and I struggle to envisage any situation in which they would not work with the multidisciplinary team and add on, where appropriate and necessary, psychiatric intervention, social care and healthcare professionals. I always come back to the point that I do not think the two things will operate independently.

[Danny Kruger]

The hon. Lady does always come back to that point, and I respect it. She imagines that the good practice that is prevalent in the system will obtain automatically, in all cases, under the assisted dying regime, even though that regime is completely new. She says that she cannot envisage a scenario in which the doctors would not hear from all the professionals we all think should be consulted at this stage of the process. I have two points to make on that. First, why not make it explicit that that is required? Secondly, I am afraid that I can envisage scenarios in which for doctors—perhaps some years down the line, once this model of death has become normalised, as it has in Canada and elsewhere, with up to 10% of deaths coming through assisted dying—it just becomes a procedure.

Again, we have not ruled out the possibility—the likelihood, in fact—of independent clinics establishing themselves with a business that is about providing the support for people who want to end their life. There will be doctors who are happy to conduct the assessments; to take at face value what they hear from the patient; not to involve a wider multidisciplinary team in their consultations; and to expedite the process as the Bill, as drafted and amended, allows. I am afraid I do foresee a scenario in which the good practice in which all believe does not happen. My concern, and I expect the hon. Lady’s is the same, is to prevent that.

[Rebecca Paul (Reigate) (Con)]

My hon. Friend is making a powerful point. One of my concerns is about what happens if someone seeks assisted dying privately through a clinic. I see risks with multidisciplinary teams involving social workers continuing in that instance. Does my hon. Friend share my concern?

[Danny Kruger]

I certainly do. That is exactly the scenario that I fear, and I fear it within the NHS too. Let us not imagine that every NHS doctor has all the time and the access to the wider specialisms that they would wish. Under the Bill in its current form, there will be a very strong incentive and a very strong personal instinct for compassionate doctors, who believe in the autonomy of patients and in respecting the patient’s wishes, to take at face value what they are told and not to seek the expertise that would happen automatically if there were a proper multidisciplinary team at that stage of the process.

My point is that we do need a multidisciplinary team, but what is in the Bill is not it. At best, it is half a multidisciplinary team. There is no doctor on it. There is a lawyer, pointlessly. There is a sort of quasi-MDT—a duo-disciplinary team—but it is in the wrong place, and it will not assess, which is the job it should do, but judge. It will not diagnose or advise in the way that a clinician should; it will simply decide whether the criteria have been met for an assisted death. That job was rightly given to judges in the Bill that the House of Commons voted for, but this Bill does not have the powers, the safeguards, the accountability or the independence of a tribunal, let alone that of a court.

As the hon. Member for Spen Valley candidly says, the panel is not a judicial entity in any sense. It is a weird creature, neither one thing nor the other: a quasi-multidisciplinary team, at the wrong stage in the process, for the wrong purpose. I have said that it is not a multidisciplinary team, but it is not really a judicial entity either, as the hon. Lady has mentioned. It is certainly not “judge-plus”, as was originally suggested. There is no judge, just a legal member—not a judicial member but a legal member, who might be a lawyer.

[Kim Leadbeater]

There is a judge—it may be a retired judge—who is the commissioner, who heads up the entire assisted dying commission, and there is a legal expert on the panel as well, as the hon. Gentleman said. That could be a retired judge, so there is legal expertise there. I think the hon. Gentleman also made the point that there is not a doctor on the panel. My understanding is that psychiatrists are doctors, but I will stand corrected if that is not true.

[Danny Kruger]

The hon. Lady is absolutely right; I do apologise. There is indeed a doctor—a psychiatrist—but not a doctor specialising in their condition.

[Kim Leadbeater]

We have had two of them already.

[Danny Kruger]

No, we have had a couple of GPs. We have not had a doctor who is a specialist in their condition.

[Kim Leadbeater]

If needed.

[Danny Kruger]

If needed, there is the opportunity to refer to one. It is perfectly possible that the whole process of an assisted death could be done very well under the Bill—that is good news—but there is a very great risk that the process will not be done well, because there are huge gaps through which bad practice can creep. My specific concern about this stage is that we do not have the appropriate expertise on the panel.

On the hon. Lady’s point about there being a judge in the process, there is a distant judge who sits above a quango that appoints the panels. They take a view on a specific case only if there is an appeal against a refusal. They are not directly judging on the case, as the House of Commons was told would happen.

[Kim Leadbeater]

The reports for the case would go to the commissioner, so he or she would see the reports.

[Danny Kruger]

Yes, but he or she will consider a reconsideration only on the basis of an application to reconsider made by the applicant. There is only one opportunity for an appeal and it can happen in only one direction: against a refusal. I will come on to the role of the commissioner in a moment, but in the great majority of cases there will not be a judge involved in the decision. There might be a retired judge on the panel, but that is extremely unlikely; it is more likely to be a lawyer. It is a judicial exercise that is being conducted, so it would be appropriate for it to be a judge sitting properly in a court.

[Naz Shah (Bradford West) (Lab)]

Does the hon. Member share my concern that the Bill does not say that the panel can call people and ask them to swear under oath, unlike a mental health tribunal?

[Danny Kruger]

The hon. Lady is absolutely right. Having said that the panel is not a proper multidisciplinary team, I agree that it is not a proper judicial entity either. It is a panel with judicial power to approve life-or-death decisions, but it is without a judge or the normal judicial processes that would happen in a tribunal or court. There is no oath being taken by members of the panel or by witnesses; there is no independent appointment process, so the members of the panel will be appointed by the commissioner; there is no power to order the disclosure of information to the panel; there is no power to investigate wills, financial records or anything like that; and there is no requirement to meet the doctors or even to discuss the case with the patient themselves, if the panel considers that appropriate.

There is also no appeal against an approval, just a one-way appeal against a refusal. That appeal goes not to an independent judge sitting in a court, but to a commissioner—an appointee of the Government, who has been set up to facilitate the whole system.

Let me turn to the role of the VAD commissioner, or the Vader as I think of it; I will not labour the point. They can be a sitting judge, which is good, but I suggest to the Committee that it is highly unusual for sitting judges to be appointed to other public functions that are unrelated to a judicial role. I would be interested in the Minister’s view on that. Judges can be appointed to a second judicial job, such as chairing the Sentencing Council, but I am not aware of many examples in which a sitting judge sits in a non-judicial function.

Having looked into it, I discovered that there are three exceptions to the rule. First, the Master of the Rolls holds a number of sinecures in relation to the keeping of the public archives and the payment of the national debt, so that is a non-judicial function that a judge carries. Secondly, the chair of the Law Commission is a sitting High Court or Court of Appeal judge. Thirdly, and exceptionally, with permission of the senior judiciary, sitting judges can be asked to conduct public inquiries. A singular public inquiry, which is time-limited and essentially judicial in its purpose of determining what happened, and which will of course operate in an adversarial way, hearing proper evidence from counsel, is the only exception. However, that is not comparable to the model being set out here, in which a sitting judge is being asked to chair a permanent quango—a Government body.

[Kim Leadbeater]

Does the hon. Gentleman agree that that is exactly the point? This is a unique situation, and therefore we need a unique system. That is the perfect opportunity to use the skills that a judge or retired judge has.

[Danny Kruger]

Throughout this debate, the hon. Lady and others have frequently made the case that we should stick with the existing systems, such as the Mental Capacity Act 2005 and the use of doctors to make decisions about healthcare. Now the opposite point is being made: that we have a unique system and we therefore need to tear up the current way of working. In this one case, I think we need to stick with the current way of working: in the British judiciary, the High Court of England is the appropriate body to make decisions about life and death. That is how it works in other major decisions of life and death. These are questions that go to court.

On the point about the VAD commissioner being a sitting judge, even when it comes to inquiries that judges conduct outside their role as sitting judges in court, my understanding is that the Executive do not pick whichever sitting judge they want for the role. Instead, they request that the Lady Chief Justice make a judge available, and the Lady Chief Justice will select the appointee. What is proposed here is that the Prime Minister should pick from the bench of judges his or her preferred candidate. That feels like the use of a judge simply to fulfil a role that, frankly, does not need to be carried out by a judge.

For clarity, I emphasise that I am very much in favour of judges deciding on cases, but I do not see why a judge should fulfil the role of chief quangocrat for the administration of the regime. When we look at the functions the commissioner will have, it is quite right that, under the previous version of the Bill, most of those functions were given to the chief medical officer, because most of the required functions have to do with the administration of the medical aspects of the Bill. The collection of data and the monitoring of the operation of the Act are best left to a medic with experience of our healthcare system, rather than to a judge. These are not judicial functions.

The only function carried out by the commissioner that would require one to be a judge, or that is in a sense judicial, is the review of panel decisions, because a judicial decision is being made. Under new clause 17(2), the test is limited to an error of law, irrationality or procedural unfairness; those are the grounds for judicial review. If we did not have new clause 17, the ability for judicial review of panel decisions would remain. It could be argued that the new clause would actually limit judicial review by only allowing the person concerned to apply for reconsideration.

I understand that some courts in Canada, which has a comparable judicial and common law system to ours, have held that family members do not have standing to judicially review decisions to authorise medical assistance in dying. The suggestion has been made that families who are concerned that an error has been made in a decision to approve a death should be able to quickly get an injunction through a JR. I hope that that will be the case, if this law passes as proposed, but it certainly is not the experience elsewhere and I fear it might not be the experience here.

I am afraid that we have a dog’s breakfast of a system: all the problems of the High Court system that have been aired, but without any of the benefits. I will finish by quoting Sir James Munby. I know he has been cited regularly, but the hon. Member for Spen Valley said yesterday that, having listened to Sir James, she set herself the task of designing a system that would satisfy a former president of the family division. I am afraid to say that she has not succeeded in her task. I will quote a few points that Sir James made in response to the proposals in these new clauses. He stated:

“The process…is simply not apt to enable the panel to perform its function…The panel is given an extraordinary degree of discretion in relation to the process it is to adopt”.

He suggested that the panel is

“little more than a rubber stamp providing a veneer of judicial approbation”—

I do not think that rubber stamps provide veneers, but his point is well made and I respect it—

“and that is fundamentally unacceptable”.

Finally, he said:

“If the panel is to perform its function effectively and do more than just ‘check the paperwork’—if it is to be the real safeguard intended by its proponents—then its processes must be much more thorough than is currently proposed…All in all, in relation to the involvement of the panel in the process, the Bill still falls lamentably short of providing adequate safeguards.”

[Kim Leadbeater]

Many of us have quoted Sir James Munby, for whom I have a huge amount of respect, but there are a number of other views from ex-judges and very highly-regarded legal professionals that conflict with what Sir James says.

[Danny Kruger]

It would be very helpful if the hon. Lady could—not now; it need not be in the course of these deliberations—publish the evidence of that assertion. Which senior judicial figures have endorsed the new plan? It would be very helpful to hear from them.

We heard many criticisms of the previous regime. In my view, those objections prompted the change of heart that the new clauses derive from. From what I have seen, the weight of evidence indicates that we still have many of the problems that the High Court system had: a lack of effective powers and questions around capacity. We also have a whole new load of problems to do with the essential illegitimacy of a quasi-medical panel of people making an essentially judicial decision without the opportunity to hear in a meaningful way from all the different stakeholders who should be consulted.

[Naz Shah]

I want to understand and clarify something. The hon. Gentleman said earlier that the commissioner is sitting as a judge, but my understanding is that the commissioner is not sitting as a judge. What did he mean?

[Danny Kruger]

I think the hon. Member for Spen Valley said yesterday that we had to grapple with this confusion, which is that there is a judge not sitting as a judge. It is slightly like a Minister not sitting as a Minister; the Bill has provided all sorts of interesting hybrid creations of people who inhabit split personalities and dual roles.

The hon. Member for Bradford West is, I think, right. From the evidence we have heard from the hon. Member for Spen Valley, although there will be a judge, which satisfies the cosmetic need to present this as some sort of continuation of the High Court stage that the House of Commons voted for, they will not sit as a judge. It is rather like having a hobby or a second job. I am not sure judges do that, but it is like chairing a football club on the side. Their status derives from their judicial role, but they are sitting as the commissioner in a lay capacity—I think I have that right.

[Kim Leadbeater]

We have already talked about this, and I think the hon. Gentleman mentioned it himself: there is a similar situation with public inquiries, on which a judge sits because of their skillset and who they are, but not necessarily in a traditional judicial capacity.

[Danny Kruger]

It will be interesting to hear from the Minister, who is more equipped than the rest of us to opine on this. My understanding is that a judge sitting as chair of a judicial inquiry might not be sitting in court, but they are there because they are a judge; their function, as the chair of the inquiry, is essentially judicial. That is the only comparison and it is essentially different, because the exercise of a public inquiry is time-limited and specific to a particular case, which is to determine the truth or otherwise of what happened in whatever situation it is being asked to inquire into.

Here, we are setting up a quango—an arm’s length body of Government—that will sit in perpetuity and oversee a bureaucracy of state. That is something that no judge does in our system and, in my view, would be completely inappropriate for a sitting judge to do, even if we could find a sitting judge prepared to fulfil that function, which I think might be challenging.

The other key difference is that a judge chairing a public inquiry is appointed by the Lady Chief Justice; they are essentially judicial in their appointment and work. The judiciary appoints one of its own to fulfil a judicial function as the chair of an inquiry. It is being proposed here that the Government—the Executive, not the judiciary—appoint the chair of the commission from the Bench of judges.

[Naz Shah]

What the hon. Gentleman has said creates another concern for me. If we do have a judge, and if the expectation is that they sit in a judicial capacity, does that not raise concerns that an appeal is allowed one way—if an assisted death is refused—but not the other way, if someone wants to appeal against an assisted death? By definition, does that position not become compromised?

[Danny Kruger]

I am afraid that that is absolutely right. There is an essential problem with the role of the commissioner as the backstop—the Court of Appeal, as it were—for what are effectively judicial decisions made by the non-judicial panel. The fact that appeals can be heard only against a refusal and not an approval confuses the whole question of appeal and judicial review. It is plainly unjust, and does indeed compromise the idea that the judicial figure has the independence that a judge should properly have. I agree with the hon. Member for Bradford West.

[Naz Shah]

I want to speak to amendment (c) to new schedule 2, tabled by my hon. Friend the Member for Lowestoft. The amendment requires members of the panel to have undertaken training in respect of domestic abuse, including coercive control, and financial abuse. It extends the principle of amendments 20, 21, and 22, also tabled in the name of my hon. Friend, which require the medical practitioners involved in the assisted dying process to have undertaken similar training.

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[Kit Malthouse]

I rise briefly to amplify a couple of points from the excellent speeches by the hon. Members for Rother Valley and for Ipswich. First, in clarification, I understand that there are situations where judges can sit in essentially supervisory positions—not least, for example, on the BBC board—and they can of course be Cross Benchers in the House of Lords. They are allowed to undertake other charitable trustee roles, although they are restricted in their activities.

[Danny Kruger]

I think this is important. Those roles are what those judges do in their spare time—they could also chair a football club or something as well. The point is that they are being asked here to fulfil a function on behalf of the Government in their working hours, explicitly because they are a judge—yet they are not sitting as one. Surely my right hon. Friend acknowledges that that is essentially unprecedented.

[Kit Malthouse]

No, I do not acknowledge that at all. Over the years we have started to use judges relatively flexibly—even, for example, for non-statutory inquiries; my hon. Friend has referred only to statutory inquiries—and that is so much the better. I am not a lawyer myself but I believe in the rule of law, so I think that having judges opining on our freedoms or otherwise is generally good for the country.

I want to amplify a couple of points. On Second Reading, I made the case for the High Court to be involved. I agree with my hon. Friend the Member for East Wiltshire: at that stage, I was very happy for there to be effectively a scrutiny and authorisation third layer to the Bill. My understanding of judicial opinion was that, certainly in Lord Sumption’s view, that level was unnecessary; I think he referred to it being a profoundly intimate conversation that really should just be between the patient and the doctor. However, I think my hon. Friend the Member for East Wiltshire is right that the weight of the moment and opinion in the House then was that there should be that third layer of scrutiny and opinion.

I also dismiss the argument about the capacity of the judiciary to absorb this. I fear that if we start to accept that argument, we go down a very difficult road for Parliament—not least, for example, because we should then have opposed the Bill that went through the House on Monday night, because of its greater impositions. As many will know, the Crime and Policing Bill went through without a vote. It will impose new burdens on the judiciary and the police, as will the new offence of spiking. No doubt the immigration Bill coming through will also put significant extra burdens on the police and the courts.

There are two separate questions here: one is what Parliament does, and the other is the capacity of the public sector to absorb that. The answer is not to say, “Well, I am afraid all you people have to go through a death you do not want to go through”; it is to say that we do not have enough judges and to recruit more judges, if that is required. In my personal view it is not, but at the time my view was that if as a footballer I could show up in the middle of the night and get an injunction to stop The Daily Mirror from publishing unpleasant stories about me, then the judges should be able to find time in their schedule to accommodate the requirements of my death.

[Danny Kruger]

My right hon. Friend is absolutely right. If Parliament decides that we should proceed, then we should, and the public sector will be obliged to make accommodation and provide the necessary resources. Does he agree that, on that basis, it would be appropriate for the Government to have clarified by this stage what the resource requirements of the new system would be, to make clear that there is the capacity in the system to do it? Does he share my regret that that has not been done?

[Kit Malthouse]

No, I do not share that regret, because until today, and until we all vote on it, the Government do not actually know what they are facing. They have undertaken that they will produce exactly the assessment that my hon. Friend is talking about between the end of this process and Report, so we can all have a look at what it will be.

At that point, Members can put a price on other people’s death and other people’s pain if they want to, but there are lots of situations where the House of Commons decides about things on the basis of moral principle and public interest, and then we ask the public sector to absorb it. If that causes operational problems, then we solve those separately. In my 10 years in the House, I cannot remember anybody ever standing up and saying, “We shouldn’t do this because the public sector can’t cope.”

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[Lewis Atkinson]

I rise to respond to some of the points made by the hon. Member for East Wiltshire. I looked back on the Hansard report of the Second Reading debate and his position there, and I am somewhat confused. In his speech in that debate, he was entirely dismissive of the judge as a safeguard, but now, in Committee, he seems to have had a Damascene conversion in favour. That gets to the question of whether, as others have asked, there are any safeguards that would satisfy opponents of the Bill in principle.

I entirely respect the position of principled opponents to the Bill.

[Danny Kruger]

I look forward to hearing the hon. Member’s substantive remarks, but in explanation I should say that there are no safeguards that I think will make an assisted dying Bill adequate. I will oppose the Bill whatever happens because I think it would be dangerous for people however we do it. But if we are going to do it, let us do it as safely as we can. There are definitely ways in which we could improve the safety of the Bill, which have been suggested in the many amendments I have supported.

On the point about the judicial stage, I am very critical of clause 12 as it stands because it does not provide sufficient rigour and there are major questions about the capacity of the judiciary, as has been discussed. But the principle is absolutely right. It is important that, if we are going to do this, we have a judge to make the final decision. I was not satisfied with the Bill as presented, but I think we should be building on it, rather than reducing the judicial safeguard.

[Lewis Atkinson]

I thank the hon. Member for that point, but when someone cannot describe any version of safeguards that would be possible, and in the light of some of the other conversations we have had, one is led to believe, entirely respectfully, that some people are opposed to the Bill in principle in any instance.

The point that my hon. Friend the Member for Spen Valley made on Second Reading that this was the safest model in the world was not just about the fact that there was a judge, but about the fact that there was a third tier. That is not something that is in place in Oregon, or even in Australia, as we heard in evidence. Now, not only are we going to have a third tier of scrutiny, but we are going to have three professionals who must unanimously accept that the strict conditions for eligibility have been reached. I absolutely refute the suggestion that amending away from a High Court model and towards a panel model means that we have to recant any suggestion that this is the strongest model in the world.

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[Lewis Atkinson]

No, I am in a flow, so I am just going to keep going. I am mainly rebutting at this point, and I do not want to open the debate that much wider.

Invariably, we already have individuals at the end of their lives with multidisciplinary input that is appropriate to them, and we have heard already how the independent doctors and the panels will rightly seek input from all those involved in care.

It has been some time since the hon. Member for East Wiltshire and I had an exchange on our difference on the ventilator test, but I know that we have a fundamental, philosophical difference on that. I believe that a dying person saying, “Please, doctor, turn off my ventilator; I want to die,” is not fundamentally different from that person saying, “Please, doctor, let me take that medicine; I want to die.” I assert that the person in the street is closer to my view of that situation than to his, although I respect that people have different philosophical opinions about it. However, let us not forget that we sometimes conduct this debate about the correct oversight of the third tier in a theoretical manner, as if these people were not dying anyway, and as if deaths relating to refusal of treatment, and suicide, were not happening anyway.

[Danny Kruger]

Let us not rehash the argument about whether there is a difference between withdrawing treatment and actively killing somebody or giving them the opportunity to kill themselves. On the point about withdrawal of treatment, does the hon. Member acknowledge that when there is dispute over whether somebody should have their treatment withdrawn, it goes to a court and there is representation from both sides of that argument about whether the treatment should be withdrawn? If he is saying that these measures are essentially identical in principle, surely we should have the same mechanism to resolve disputes.

[Lewis Atkinson]

I thank the hon. Member for his intervention, but I am afraid he is confused. It goes to the Court of Protection when the individual is not capable of making that decision and there is a dispute about what the best-interests decision may be for that individual. That is entirely different from the dying person saying, “Please turn off my ventilator.” In that case, the Mental Capacity Act 2005 applies, as we have discussed at length in the Committee, but there are no further checks for coercion, capacity or motivation in the way that has been described. With the three panel members, we will now have at least five professionals, who must all be satisfied that there is no coercion. How many individuals should there be?

I see speculation, including on social media, about the number of people who might seek an assisted death and who may be subject to coercion. How many people who refuse treatment at the moment, without any of those checks, are subject to coercion? How many people who go to Switzerland, or who end their own lives, are subject to those checks? We do not know because we have no robust oversight of those instances. While I have absolute sympathy with the points raised by my hon. Friend the Member for Bexleyheath and Crayford, who made a very thoughtful and personal speech, as he always does, the exact same instances that he described would be permissible right here and now.

The hon. Member for Reigate shared some upsetting stories, I think from Canada, about the impact on family in speaking to the amendments on that subject. First, I point out that Canada’s system is nothing akin to the one that we are proposing, because it does not have the third-tier protections that my hon. Friend the Member for Spen Valley proposes in the Bill.

However, it is also important that we bring the debate back to talking about dying people here in the UK, and that we have some of their voices and experiences, and their families, in the room. We know that already, 650 terminally ill people end their own lives each year in the UK. Anil Douglas’s dad, Ian, took his life the day before his 60th birthday. He was in the terminal stages of multiple sclerosis, and he ended his own life without notifying his family, because he felt he had to protect them, due to the state of the current law. He managed to obtain opioids from the dark web and subsequently overdosed. In his final note, he wrote:

“I would like to have to put on record that had we had more sympathetic assisted-dying laws in this country, in all probability I would still be alive today.”

I will give one more example. On returning home from a trip to London, Peter Wilson discovered his wife, Beverly, dead in their home. She had terminal oesophageal cancer and had taken her own life, alone at their home in Nottinghamshire, when she knew that Peter would be 120 miles away. Even though Peter could prove that he was not present at the time of death, he was questioned by police for seven hours, and he was fingerprinted and photographed within hours of her death. That is the current situation that families—those we have discussed maximising care for—are facing in the UK. That is why we need a change in the law that includes robust, third-tier oversight.

--- Later in debate ---

[Sean Woodcock]

That is my next point—and it is a good question. As I said, the panel is done with the right intention and would improve the process in many ways. My view is similar to that of the hon. Member for East Wiltshire—it is possibly one aspect on which we are in agreement—in that I think it comes at the wrong part of the process. If it was earlier in the process, it would improve things. Court capacity is an issue, but I take the point made by the right hon. Member for North West Hampshire that if we want the courts to do it, they need to get on and do it.

I keep coming back to the issue of what we are asking the state to do. Implementing the wishes and autonomy of the patient is important, but we also need to take very seriously what we are asking the state to allow to be done in its name. There is also the crucial matter of public trust, the condition of the national health service and the issue of capacity in the courts. As my hon. Friend the Member for Ipswich touched on, there is considerable disquiet and concern about how robust this process is going to be. Even though I think having the panel at the start of the process would improve what was put to the House on Second Reading, having judicial oversight at the very end would provide reassurance to the vast swathes of the public who are concerned about this, as well as to Members.

[Danny Kruger]

The hon. Gentleman is making an important point and I completely agree. Does he agree that the hon. Member for Spen Valley recognised the problems with the lack of a multidisciplinary team in the process and the problems of court capacity, and through her attempt to address both those problems we now have a multidisciplinary team instead of the judicial role? What we really need is both: we need a properly constituted multidisciplinary assessment at the beginning, and then we need the final process to be an approval by a judge. Does the hon. Gentleman agree that that would be a better process?

[Sean Woodcock]

Having thought about it, that would be my preference. I am in a difficult position in that there is a lot to be said for the panel, and it would improve the process in many ways, but I cannot get around the fact that the judicial aspect was put strongly before Parliament, and ensuring that we would have those safeguards provided reassurance to Members. When I have been out on the doorstep talking to people who are in favour of the Bill—people who wanted me to vote in favour of it—they have said to me that they think the proposal is safe because it includes two doctors and judicial oversight. That does come up, which is why I think we need to keep judicial oversight in the Bill. I do, though, I recognise the very genuine attempt by my hon. Friend the Member for Spen Valley to introduce the panel to improve on some aspects and address the concerns expressed in the witness testimony.

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[Sarah Sackman]

It is a majority vote for the other decisions that a panel may make, but in respect of certification, the decision is unanimous. Paragraph 5(2) of new schedule 2 states:

“Decisions of a panel may be taken by a majority vote”.

Such decisions include whether to hear from an additional expert, or whether further investigation is required in respect of an aspect that the panel may be concerned about, such as coercion or capacity. While those decisions can be taken by a majority vote, in respect of certification and granting a certificate of eligibility, I refer my hon. Friend to paragraph 5(3), which states:

“The panel is to be treated as having decided to refuse to grant a certificate of eligibility if any member votes against a decision to grant such a certificate.”

That is a slightly mealy-mouthed way of saying that if any member of the panel resists the grant of the certificate, no certificate can be issued.

[Danny Kruger]

I just want to support the hon. Member for Bradford West. She is absolutely right. It is clearly intended that there should be a unanimous decision but, in fact, as the hon. Lady pointed out, if one of the members decides effectively to abstain, the procedure does go ahead. It is not that they all have to actively support the decision; only two of them have to do that. One of them could have their doubts and sit on their hands, and it would still go ahead.

[Sarah Sackman]

That might be something that other hon. Members wish to take away with them, whatever the policy intent may have been. In fairness, I do not think that the question of whether there is a requirement to give a positive indication of a decision either way is on the face of the Bill. However, I think that clearly the intention behind paragraph 5(3) of new schedule 2 is that there is unanimity in relation to the grant of an eligibility certificate.

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[Sarah Sackman]

There is no doubt that, as we will see later, the panel would be subject in all its decisions to public law principles, including procedural propriety. The absence of any suggestion of bias—even of the appearance of bias—is an important public law principle. In any event, given the recruitment process, the interviews that would be undertaken and the professional standards to which all these people would be held, I think that they would apply their independent and impartial skills and judgment to the decision making and the assessment of eligibility in a manner appropriate to the task set out in the Bill.

One would expect professionals on the panel to adhere to their professional standards and act with impartiality in ascertaining whether the eligibility criteria have been met. Speaking as the Minister—indeed, even speaking for myself—I have no reason to doubt the independence, impartiality and professionalism of the panel or see any suggestion of bias.

[Danny Kruger]

I appreciate that an impact assessment is due to come later, after we have debated whether we should have this system or not. Nevertheless, will the Minister tell the Committee whether officials in her Department or in the Department of Health and Social Care have informed the hon. Member for Spen Valley whether the workforce will have sufficient capacity to provide the professionals required? Has any estimate been made of the number of people who will be required to step forward to take part in these panels?

I note the point that the reason why the proposed High Court stage was dropped was not that Ministry of Justice officials had informed the hon. Member for Spen Valley that the family court system would be overwhelmed. Can the Minister confirm that there was no communication to the hon. Member that the courts would not be able to cope with the demand? That was clearly reported in the media at the time, but can she confirm that it was not the case?

[Sarah Sackman]

The hon. Gentleman’s first point is a matter for the impact assessment itself. Clearly both Departments have data on the state of the professions, on how many KCs there are in the country and on how many people will be needed to provide the service. As I say, if Parliament wishes it and legislates for it, the state will work to deliver it, but the detail will come in the impact assessment.

On the hon. Gentleman’s second question, as I made clear earlier, the effective shift away from the High Court model in clause 12 to the model in the new clauses has been driven by the policy intent of my hon. Friend the Member for Spen Valley. I will not get into the precise chronology of when the matter was raised, but it came from my hon. Friend.

Yesterday, I hotfooted it from the Committee to Justice questions, where I was delighted to see the hon. Member for Reigate. We discussed capacity issues in our Crown courts and civil courts. Those issues are well reported in the media, but there is no connection between them and the policy shift here. If this is what Parliament chooses to legislate, the state will work to deliver it.

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[Danny Kruger]

I appreciate the Minister’s point about the Parole Board. Does she acknowledge that in the Parole Board example there is the essence of an adversarial system, because the victim is invited to give a statement? The board therefore hears opinions from, as it were, both sides of the case. Who will fulfil that second role in the proposals before the Committee?

[Sarah Sackman]

I drew the comparison for the purpose of showing where judges and legal experts are deployed in a multidisciplinary forum that is not a court or tribunal. I was not suggesting that there is a straight-line analogy. After all, a Parole Board panel is performing a different function to make a global assessment of risk. That is what it is ultimately doing; it is not strictly speaking an adversarial process in that sense.

The situation that the Bill addresses is that of an individual seeking to establish their eligibility for a right that—if the Act is passed—Parliament will have conferred on those who meet the criteria. It is not an adjudication. It is the panel’s function to assess, through the various conversations and provisions and by interrogating the information that has been provided, whether it is properly satisfied that the eligibility of the person’s election to avail themselves of that right is sound.

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[Sarah Sackman]

It is a pleasure to serve under your chairship, Sir Roger.

New clause 17, tabled by my hon. Friend the Member for Spen Valley, will establish an internal review process. Where a panel refuses to grant a certificate of eligibility, the person seeking assistance would have the option to apply to the commissioner for their case to be reconsidered on the grounds that the first panel’s decision contains an error of law, is irrational or is procedurally unfair—essentially public law grounds. If the commissioner is satisfied that any of those grounds apply, having considered the case without a hearing, they must refer the case to the second panel for a fresh determination. The commissioner will be required to give reasons for their decision in writing. The decision should be shared with the person seeking assistance, the co-ordinating doctor and any other person specified in regulations.

In addition to this internal review process, decisions made by the commissioner or a panel will be amenable to judicial review. It will be for the court to decide whether an individual or group is sufficiently impacted to have standing.

Amendment (a) to new clause 17 proposes a change to who can apply for reconsideration of the initial panel’s decision. This amendment, tabled by the hon. Member for Reigate, seeks to make changes to the process of applying to the commissioner for reconsideration of a panel’s decision, as set out in new clause 17. It would widen the range of persons eligible to apply for a reconsideration, to include not just the person seeking assistance but their next of kin and other relatives, the medical practitioners treating them, and any other person who engaged in the first panel’s proceedings.

Secondly, the commissioner would be able to allow the application for reconsideration on the basis that the first panel’s decision was wrong or unjust because of a procedural or other irregularity in the proceedings. This could include scenarios where a person wishes to challenge the panel’s decision to grant a certificate of eligibility. “Wrong” is an unspecific, subjective and uncertain term that is not typically used in legislation for these reasons: it is a far broader criterion than that set out in new clause 17 and would give the commissioner a significant degree of discretion on whether to exercise the power to have the matter reconsidered.

Lastly, amendment (a) to new clause 17 would make it mandatory for the commissioner to consider each reconsideration with a hearing, unless they consider it to be in the interests of justice to proceed without a hearing. This could increase the time it takes to complete the process, as well as the complexity of the process.

In addition to the internal review process under new clause 17, any decision made by the commissioner or any individual panel would be amenable to judicial review. It would be for the court to decide in each and every case whether an individual or group challenging any such decisions is sufficiently impacted to have standing for the purposes of judicial review.

[Danny Kruger]

I would be grateful for the Minister’s advice on whether she thinks a family member will always have standing. I appreciate her point that it will be for the panel to consider, but is it her view that in law, as in our experience, family members, in the normal understanding of the term—again, we are conscious of the definition of “family members”—will have sufficient standing? Or can she foresee circumstances in which it might be concluded that family members do not have sufficient standing to make a representation?

[Sarah Sackman]

The hon. Gentleman asks about standing and the process of judicial review. It is fair to say that, in our corpus of administrative law, the rules of standing are fairly liberal. On having a sufficient interest to bring a case, the case needs to be meritorious and would need to meet the permission threshold, which again is a relatively low standard: does one have an arguable case? A family member who has identified a procedural irregularity or a public law error that is arguable will have standing, I would have thought, to bring a judicial review.

The hon. Gentleman also asks about the potential for judicial review of individual decisions to issue a certificate of eligibility, but of course any decision by the commission, the commissioner or any of the subordinate panels will be amenable to judicial review. For example, the decision to issue guidance or policy documents relating to the commission’s operations will be amenable to judicial review. One can imagine that, under our broadly liberal rules of standing within the administrative court, a range of bodies not pertaining to the case of an individual and their family, but having an interest in those rules, might be eligible. Ultimately—as the Minister for courts, I would say this—that will be a matter for the independent judiciary, but it is right that, within our public law system, the rules of standing are fairly broad.

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[Kim Leadbeater]

It is a pleasure to serve under your chairmanship, Sir Roger. It was a delight to see the mum of the hon. Member for East Wiltshire. Sadly, I think she is no longer in the Public Gallery, but I hope they had a really good chat.

[Danny Kruger]

I am sorry to report that my mother could not hear a word of the proceedings. I am exaggerating, but she grumbled about the mumbling, which is a lesson for us all.

[Kim Leadbeater]

We have all been told off, and quite rightly.

I thank colleagues for another powerful, robust and thorough debate on this important subject. I thank the Minister for providing such an excellent and clear description of the changes to clause 12 that I have proposed this afternoon—I will not repeat that description. The Bill is already the strongest of its kind anywhere in the world. My amendments will make it even more robust. As we have heard, the Bill is much safer than the existing ban on assisted dying, which leaves terminally ill people and their families without any such protections at all.

The proposal to have a multidisciplinary panel, appointed by a judge, to examine each request, following earlier assessments by two independent doctors and, where necessary, a psychiatrist, reflects the expert testimony we have heard during our proceedings. It strengthens the Bill by adding more varied expertise to the decision-making process, with judicial oversight, and it includes an important monitoring and reporting function in the commissioner.

My amendments show the Committee process working exactly as it should, reflecting on evidence from the UK and around the world, and making a strong Bill even stronger. I appreciate that, for procedural reasons, we will not vote on the replacement of clause 12 until the new clauses are put, but I am encouraged that colleagues have offered positive responses and comments to the proposal for a commissioner and a multidisciplinary panel, regardless of how they voted on Second Reading. That tells me that, whatever our views on the Bill, there is a shared commitment to getting protections for terminally ill adults right, which means that we are doing our job.

Amendment (c) to new schedule 2 was tabled by my hon. Friend the Member for Lowestoft (Jess Asato). I was pleased to support my hon. Friend’s amendment on additional training on domestic abuse, coercive control and financial abuse for doctors who take part in the assisted dying process. As members appointed to the panel will already be very well qualified in the fields of law, psychiatry and social work, I am confident that they will have the necessary expertise to determine referrals, but I appreciate the challenges in detecting the subtleties of coercion, as the Committee has discussed at length. As such, I support amendment (c).

Amendment (a) to new schedule 2 was tabled by the right hon. Member for Dwyfor Meirionnydd. I am fully supportive of her position on ensuring accessibility and equality for Welsh speakers, but in this instance I have some concerns about the barrier her amendment may create for patients in accessing the assisted dying process in a timely manner, and therefore about the workability of the amendment.

Under the Welsh Language Act 1993, as the Minister said, all public bodies operating in Wales must create a Welsh language scheme with the aim of ensuring that Welsh and English are treated equally in all aspects of public service delivery. The Ministry of Justice’s Welsh language scheme, for example, sets out where services can be provided in Welsh, typically through translation services.

I take on board the right hon. Lady’s comments about the limitations of using translators. Given the sensitivity of the conversations and deliberations we are discussing, we need to be sensitive to that. It is, of course, the patient’s prerogative to request a fully Welsh-speaking panel, if that is what they want at such a difficult time—as long as they are made aware of the potential delays this may or may not create. That is my concern.

My reading of amendment (a) is that it is not the right hon. Lady’s intention that this will be required in every case. However, it will ensure a very patient-centred approach, in which I believe passionately. I take on board the Minister’s concerns, which I appreciate may need to be considered further down the line, but I am minded to support amendment (a) to new schedule 2.

Finally, amendment (e) to new clause 21, tabled by my hon. Friend the Member for Filton and Bradley Stoke (Claire Hazelgrove), in on audio and video material. I think this comes from a really personal, sensitive and important place, and demonstrates a very patient-centred approach, so I am also minded to support it this afternoon.

I would welcome the clarity from the Minister regarding some of the legal language and terminology around other amendments, and as such, I will not be supporting them this afternoon. We have had another thorough debate, and I welcome the contributions from colleagues across the Committee.

Terminally Ill Adults (End of Life) Bill (Twenty-second sitting)

Danny Kruger Excerpts

Committee stage
Wednesday 12th March 2025 Public Bill Committees

[Rebecca Paul]

I thank the hon. Member for that confirmation. Now that I have that clarity, I will skip on.

One aspect of the panel that gives me cause for concern is that the panel would not hear from the patient themselves where there are “exceptional circumstances”. What are exceptional circumstances? The Bill does not say or provide any guidance. Many people with a terminal diagnosis who are seeking assisted dying could consider their circumstances exceptional; many undoubtedly will be too unwell to attend. That means that such panels could be making these decisions based on testimony from only one doctor. I am not for one second suggesting that people on their deathbeds should have to attend a panel—that is the point of exceptional circumstances—but I urge the promoter and Ministers to ensure that the much-need clarity around the meaning of the term is set out in order to reduce ambiguity in this area.

[Danny Kruger (East Wiltshire) (Con)]

It was helpful to hear the Bill’s promoter suggest that the system will be inquisitorial—that is not sufficiently apparent in the new clause, as my hon. Friend the Member for Reigate says. Does she agree that the panel must therefore have proper inquisitorial powers and authority? At the moment, there is a lack of genuine power to investigate the circumstances. If it not going to be adversarial but inquisitorial, it should have proper powers to make an investigation.

[Rebecca Paul]

My hon. Friend makes a good point; I completely agree with him on that front. This goes back to being clear on the face of the Bill about what the panel does and the powers it has in order to avoid ambiguity. It is important that we set that out now, during this process, rather than finding ourselves in a position in two years where it is all starting to happen, if the Bill is approved, and the questions starting at that point. Let us try to answer them now and be really clear about it.

Where a panel does not hear directly from a patient, it may be forced to rely on second-hand accounts. In law, second-hand evidence is known as hearsay and is always handled with a lot of provisions and warnings across our criminal and civil legal systems, because it can be inaccurate or of lower quality than evidence directly from a source. However, the panel is open to depending on such evidence. We must be clear-eyed about the risks that come with that.

In summary, I do not believe that new clause 21 gives sufficient clarity on how the panel will perform its role and what evidential standard it would apply. We do not know if it is an administrative task or a judicial one. We do now know that the panel is inquisitorial—I thank the Bill’s promoter for that—but we do not know how much it will rely on hearsay evidence in practice. I will say this again, because it is really important: the panel is required to hear from only one doctor and does not need to question them. Under the Bill, would it be legally acceptable for the doctor to turn up, say, “No concerns”—and that’s the end of that? I am here to tell Committee members who think that that will not happen if the Bill allows it: somewhere, with some panel, it absolutely will—particularly as our society gets desensitised and more comfortable with the concept of assisted dying.

I urge the Committee to be precise with the legislation it is passing for the sake of the statute book and, more importantly, for the sake of all the people who may find themselves being assessed by such a panel.

--- Later in debate ---

[Rebecca Paul]

I thank the hon. Gentleman for that important point. My point is that the family should be listened to and should have a route to legally provide information to the panel. Right now, they have no right to do that. In reality, I think most panels would take that information. I would like to think that, 99 times out of 100, if a family member contacted the panel saying, “I have really important information,” it would listen to that. But I am legislating for the one case in 100 or 1,000 in which, for whatever reason, the panel refuses to engage with a family member who has a relevant bit of information, and not having the right information leads to someone’s death.

The amendment is about protecting panel members too. If I were a panel member, I would want this process in place, because it would protect me when I make a decision. I would take great comfort from knowing that a family member with relevant information has a legal right at least to communicate it to the panel.

[Danny Kruger]

This is a very helpful exchange, for which I am grateful to my hon. Friend. In response to the hon. Member for Rother Valley, does my hon. Friend agree that although there should be an obligation to help the decision maker to conclude as to whether the eligibility criteria have been properly met, there is no best-interest consideration, as there might be if some of us were designing the Bill? Nevertheless, the role of the family is to enable the decision maker to conclude as to whether there have been issues of coercion or lack of capacity, to ensure the decision is properly informed. We are concerned that the Bill as drafted does not do that.

--- Later in debate ---

[Rebecca Paul]

I thank my right hon. Friend for that alternative perspective. The appeal process is valid only if there is new and relevant information that the panel did not have. For someone who is absolutely eligible, nothing has been excluded from the process that would change their eligibility. There is nothing to worry about here, so I am not sure that I concur that my amendment would prevent sharing information. However, it would provide important protection when a bit of relevant information has not been shared with the panel, which I think is the greater harm. We are trying to weigh up the harms to make sure that they do not outweigh the benefits; I honestly believe that the amendment would help to balance the scales a little better.

[Danny Kruger]

The scenario that my right hon. Friend the Member for North West Hampshire suggests implies that the patient has no faith in the panel. The patient would be concluding that they did not want to go through the formal process for an assisted death and explain it to their relatives, because they fear that the panel’s decision might be overturned on application by their relative. That objection is predicated on a lack of faith in the process that is being decided. If we are to have confidence in the process, we should trust that people will expect it to work properly. There is nothing wrong with giving a family member the right to make an application to the panel or the commissioner, because they would have every right to reject that family member’s application if they concluded that the original decision was valid.

[Rebecca Paul]

I completely agree. While I was preparing my speech, as is often the way, I found myself wishing that I had tabled an amendment to add a legal requirement that the family be able to feed into the panel and share information. Perhaps that is something that can be picked up at a later stage. The nature of the process is that as we debate these things and think about them in detail, other ideas come through.

--- Later in debate ---

I now turn to some queries and concerns about what is before us.

[Danny Kruger]

Before the hon. Gentleman moves on, I want to reiterate the value of his point. This is an enormous change to the Bill and totally transforms it, but we did not have the opportunity to hear evidence on it. Is he also aware that many of the distinguished people who gave evidence against the traditional stage, which has now been scrapped, have not endorsed the proposal to change it? In fact, some of them are equally opposed to the new proposal. We have not had confirmation that this is the right system, and we did not get the opportunity to hear proper evidence on it.

[Daniel Francis]

Yes, I am aware of some of those submissions from those individuals. I will come to this, but clearly even some people who were in support of making changes did not recommend the ones that we have now incorporated.

First, I would argue that people giving evidence to the panels should be doing so under oath. In my 20 long years as a local councillor, I gave evidence under oath to an investigation by a health and safety executive into the demolition of a building. I would say that the demolition of a building and this matter are very different, and therefore I query why this evidence is not being given under oath.

--- Later in debate ---

[Daniel Francis]

I think that is the case. As the hon. Member said yesterday, people from those professional fields—in their written evidence, particularly—asked to be included in the process, but I do not think they were asking to be included at the end of the process; I think they were asking to be included earlier.

[Danny Kruger]

The hon. Gentleman has explained clearly in personal terms why it is important to involve the family, and I concur with the hon. Member for Richmond Park. I want to take the hon. Gentleman back to the rather abstract question of whether there are two sides to these cases. In contradiction to the hon. Member for Spen Valley, I think there are two sides to these cases, as she herself recognises whenever she says that this is a finely balanced judgment. The fact is that a decision can go either way, and it is very important that the decision makers are considering two sides. It is not just the immediate stated wish of the applicant that is the only consideration, as the Bill acknowledges. Does the hon. Gentleman agree that it is important to have the widest possible input into the decision, so that both options—to proceed or not—can be properly considered?

[Daniel Francis]

I hear what the hon. Member says. My concern has always been the scenario that I described. If this legislation is passed and we push it forward, one death that occurs where somebody has concerns about the process would be one too many. I said that clearly when we debated clause 3, and that remains my principal concern. It is not necessarily about two sides, but in cases where there are concerns, we need to do everything we can to ensure that that does not happen.

I have a query about the resourcing of the panel. Part of the reason why we ended up here was the queries about the resourcing of the judicial role in the process. We would need to find skilled professionals, especially consultant psychiatrists and social workers, to sit on the panel. If we look at the per capita rates in the Australian and American states that have assisted dying, we can estimate that the number of cases of assisted dying each year in England and Wales would be in the low thousands. Any consultant psychiatrist or senior social worker who sits on these panels will have to spend hours on each case. We do not yet know how many hours it would be on average, but for complicated cases, it could be many hours. What analysis has been undertaken of the capacity of consultant psychiatrists and senior social workers? Their professional bodies are beginning to look at that, but again, we were not able to ask them that during oral evidence, and because the written evidence was submitted so heavily in advance of these amendments and new clauses being tabled, we do not have that information in front of us.

We hear about the resourcing of our NHS mental health services and the fact that we do not have enough psychiatrists, so I query whether we have enough senior social workers. A senior social worker visits my house every year, but I have never seen the same social worker twice, because of the turnover issues, capacity issues and the lack of staff.

What will the Government do to ensure that the panels fulfil their responsibilities? We would be dealing with applicants who have very little time left, and being able to properly staff the panels must be a priority. We must not take psychiatrists and social workers away from their other work, while ensuring that people seeking an assisted death do not wait a long time. That is another matter on which we would have benefited from oral evidence from expert witnesses. We would also have benefited from the normal consultation that there would have been on a Government Bill, because we would have been looking at that matter for several months.

In summary, I accept that this set of new clauses and amendments is an effort to fix problems with the Bill, but problems remain, and there are probably some new ones as well. I will therefore not support a number of the provisions.

[Jack Abbott (Ipswich) (Lab/Co-op)]

It is a pleasure to serve under your chairship, Sir Roger. I rise to speak to several new clauses and to amendment (e) to new clause 21.

There were many comments yesterday about the fact that a number of Members across the House had cited the judicial stage as an important reason why they supported the Bill. I challenge the notion that they voted for it exclusively for that reason, but I recognise the strength of feeling. To be frank, I was not one of them. I was not persuaded, not least because of a number of points made yesterday by my hon. Friend the Member for Rother Valley, that the judicial stage would be anything other than a rubber-stamping exercise. I am certainly not going to go into “good judge, bad judge”. I hugely respect the legal profession, of which there are many representatives present.

The legal profession has a huge range of expertise and experience, but it could not be expected to cover in depth the psychiatric and social care aspects of the process, about which we have being raising concerns for weeks. For that reason, and especially given that we are retaining legal experience on the panel alongside social workers and psychiatrists—a triple-threat approach, as it were—I fail to see how anyone could reasonably argue that this approach is weaker. In my eyes, it is much stronger.

Of course, some people will always say that it does not go far enough; we have heard that several times. As has been acknowledged, we will never convince everybody that an amendment is safe or good enough. An uncomfortable truth that is rarely recognised but is worth mentioning—I am sure that I will shortly be misrepresented on social media for saying it—is that no safeguard that we could put in any Bill, on any subject, will 100% ensure that there will never be any mistakes.

We have to do our level best to ensure that the probability is reduced to an absolute minimum. However, when someone goes into surgery, there may always be complications that cannot be foreseen, and we know that there have been awful miscarriages of justice; as a new Government, we have spoken about them, from the Post Office scandal to infected blood. We also have to rely on the fact that we are entrusting experienced, trained professionals with carrying out this work. Not only more often than not, but in nearly every situation, bar the awful cases of which we are all aware, they do their work to the best of their ability, and we have to be absolutely honest about that.

We should not look at the new clauses in isolation. They are part of a package. A number of amendments have been agreed to, about coercion and about ensuring that medical professionals are trained to the right standard. Like my hon. Friend, I hope we will see further amendments on special educational needs and learning disabilities. Those things are really important, so it is worth recognising that in addition to the new clauses, which in my view ensure a much stronger approach to the final judgment, we have agreed to a number of other amendments.

I want to pick up the issue of whether the process should be adversarial or inquisitive. I am sure that hon. Friends who have served at the Bar will tell me if I am wrong, but in my view an adversarial process is one of competition: it pits someone trying to prosecute an argument against someone trying to defend it. In contrast, an inquisitive approach is about asserting the truth. In my view, people who are not only going through agonising pain but making agonising decisions about what to do with the remaining days of their life should not be on trial. We should approach them from a position not of suspicion, but of support. Of course, that is caveated by all the things we have talked about, particularly on things like coercion. If there is any idea that a person has been coerced into the decision, of course we should investigate that, but the process should not be adversarial.

The connecting element is that we should ensure that we get the balance right between safeguards and safety. We should not add so many barriers and layers that a person can never access the process because it is too cumbersome. I do not want people to spend the remaining days of their life sitting in endless meetings, consultations and an adversarial court process, or whatever it might be. But we absolutely have to have all the right safeguards: as we have said, if there is any suspicion that someone may have been coerced or does not have mental capacity, of course we should go down the relevant routes to ensure that that is not the case.

Part of the reason why people will make the decision is that they want the autonomy to go out on their own terms, plan their remaining months and enjoy experiences with their family. We must ensure that those precious days are spent with their family, not in endless meeting rooms, so we absolutely have to get the balance right. As has been acknowledged, the diagnosis is a really important part of it. We regularly talk about the six-month point in the diagnosis, but we know when many people receive their diagnosis, their final days will be much shorter, so in the main people do not have time to go through a lengthy, difficult process.

[Danny Kruger]

Is the hon. Gentleman not making a case against a third stage altogether?

[Jack Abbott]

No.

[Danny Kruger]

I would be grateful if the hon. Gentleman could explain that. If his concern is about asking patients to go through a third stage, after the doctor’s assessment—

[Jack Abbott]

indicated dissent.

--- Later in debate ---

[Danny Kruger]

In that case, what is the difference? It is not necessarily the case that the judicial stage has to be incredibly time-consuming, onerous or distressing for the patient. It is about the legitimacy of the process and the rigour that is applied to it. If the hon. Gentleman wants people to be sped through the process without going through the distress of further explanations, surely he should be objecting to the panel too.

[Jack Abbott]

I thank the hon. Gentleman for that question, but he is entirely misrepresenting my position. I have said that there should be a balance between safeguarding and ensuring that the process works for people. I have just spoken in support of the panel stage, and I think it is important that it is robust. We are including social care workers and psychiatrists alongside legal professionals. I have not for a moment used any language that suggests that I am not in favour of that. I am talking about the idea that it does not go far enough. We have spoken a number of times about adding additional layers beyond the processes that are already in the Bill, which we are debating today.

[Danny Kruger]

I was not suggesting that the hon. Gentleman opposed the panel. I recognise that he is speaking in support of it. My concern was that he was suggesting that there was a problem with the High Court stage. I now appreciate that he is objecting to some sort of fourth stage that some people might be suggesting on top of the panel. I personally am not proposing that; I think that there should be a multidisciplinary team as part of the assessment process and then a judicial stage, as originally planned.

Terminally Ill Adults (End of Life) Bill (Fourteenth sitting)

Danny Kruger Excerpts

Committee stage
Wednesday 26th February 2025 Public Bill Committees

[Dr Opher]

Well, that was disputed by other psychiatrists. We are asking questions about whether the Mental Capacity Act is safe and correct for the Bill. This whole Committee is about making the Bill safe. None of us would dispute that. However, I think that if we accept the amendment, the Bill will become less safe because the amendment would change a massive piece of legislation and therefore have a number of repercussions that we do not understand.

[Danny Kruger (East Wiltshire) (Con)]

Chris Whitty made the same point that the hon. Gentleman has just made: that there would be knock-on effects and that the Mental Capacity Act works very well currently. Does the hon. Gentleman acknowledge that Chris Whitty himself misrepresented the Mental Capacity Act in the evidence he gave to the Committee? He had to write to us subsequently to clarify his comment, and his clarification contradicted the hon. Gentleman’s implication that the Mental Capacity Act has different thresholds for different levels of decision. Does the hon. Gentleman acknowledge that it does not? The Act has one threshold: capacity as it defines it. Some doctors may have longer conversations than others depending on the severity of the case, but the threshold is the same—Chris Whitty misrepresented it.

[Dr Opher]

I agree that the threshold is the same: does the patient have capacity or not? That is the single threshold. We often do mental capacity assessments for inheritance, control of bank accounts and that sort of thing; sometimes we do a very quick mental capacity assessment about the refusal of treatment. How long we take depends on how important the decision is. I suggest that a doctor assessing someone’s capacity to make a decision to end their life would have a serious, long discussion—up to 90 minutes, or possibly even two hours—to make sure that the doctor is convinced that the patient has capacity. The threshold is the same—it is about whether they have capacity—but that does not mean that the conversation is the same. In clinical terms, it is very clear that a conversation on those grounds would be much more involved than, for example, whether a person sees a dentist or not, or other conversations like that.

I totally understand the concerns that the amendment has been tabled to cover; however, my main point is that if we accept the amendment, it will make the Bill less safe. The reason for that is that, as I have said before, if we change something that is well used, and repeatedly used, it will make the interpretation much more complicated. We will have to re-train all the doctors and, I think, it will not protect patients.

--- Later in debate ---

[Rebecca Paul (Reigate) (Con)]

I rise to speak to my amendment 398. I recognise that much debate about capacity has already taken place, so I will do my best not to be too repetitive, but it is an important topic and I want to cover a few things.

Fundamentally, I consider the bar for the capacity to make a decision to seek an assisted death to be far too low if, as we have already discussed, the approach currently proposed in the Bill is adopted. The Committee has received powerful written evidence that the Mental Capacity Act, as it stands, is not suitable for assisted dying. The Royal College of Psychiatrists says in its written evidence:

“It is the RCPsych’s view that the MCA is not sufficient for the purposes of this Bill.”

The former president of the Royal College of Psychiatrists, Baroness Hollins, says:

“The Mental Capacity Act has proved very difficult to implement and doctors have not been found to be good judges of capacity.”

The eating disorders expert Chelsea Roff says:

“The MCA is not fit for purpose for determinations of capacity in life-ending decisions.”

I do not think it is contentious to say that there should be a higher standard for ending one’s own life than for other courses of action. Baroness Hale has called the Mental Capacity Act threshold “not a demanding one.” The Royal College of Psychiatrists says in its written evidence:

“While we are of the view that a person’s capacity to decide treatment can be reliably assessed, an assessment of a person’s mental capacity to decide to end their own life is an entirely different and more complex determination requiring a higher level of understanding.”

Even if the Mental Capacity Act is working well in some other contexts, it does not necessarily translate well to assisted dying. Professor Gareth Owen told the Committee in oral evidence that although the Mental Capacity Act is quite reliable in current practice,

“in areas of decision making where the decision itself is unsettled or conceptually much more profound or novel—I would suggest that the decision to end one’s own life has those characteristics—you cannot expect there to be such levels of reliability.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 239, Q303.]

The Mental Capacity Act definition of capacity was not created with such a monumental decision with respect to assisted dying in mind. Although I note Chris Whitty’s recommendation that it is the starting point, I do not think it can be the end point. Further provisions are needed to ensure that it is fit for purpose, given the significance of the decision being made. Professor Owen said:

“I have looked at mental capacity a lot in research, and there is no experience of the decision to end one’s own life. It is outside the experience of the Mental Capacity Act, the Court of Protection, the associated research and practitioners on the ground. The reference to the Mental Capacity Act in clause 3 puts you into an area where there is no experience of the central capacity question under consideration. It is very important that Parliament be clear-eyed about that.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 226, Q287.]

Dr Sarah Hooper, a retired oncologist, says that

“the patient in question may undoubtedly have ‘capacity’ for most important decisions. However, in the early days after a cancer diagnosis their ability to make clear judgements is nevertheless likely to be impacted. This kind of decision (for assisted suicide), once acted upon, is plainly irreversible. It is a very bad time to make that kind of decision.”

It is true that the Mental Capacity Act is used for decisions to stop life-sustaining treatment, but, as Professor Owen said, we should not simply equate that with assisted dying. As he pointed out:

“One is a refusal; one is a request. One is traditionally considered to be about bodily integrity—it is the so-called shield of the person, or the patient, against the intervention on the body that is being made by the medical profession. You are giving the patient an important right, which is a shield-like right. That contrasts with a request for assisted dying, which is a request. You are involving other people in an act that is an act of ending one’s life. That is not something that the medical profession has been comfortable with, going back thousands of years.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 236, Q288.]

I also draw attention to a great deal of written evidence making the point that the current Mental Capacity Act is not as well understood by medical practitioners as we hope or expect. Alexander Elphinston, a retired solicitor, says,

“from my experience doctors and other medical practitioners often applied the test of mental (in)capacity incorrectly.”

Victoria Wheatley, a palliative medicine consultant, says,

“I have observed a tendency to overestimate a person’s mental capacity in the absence of obvious features to the contrary.”

Alan Thomas, a professor of old age psychiatry at Newcastle University, says:

“The preferences of the assessor bias the capacity decision towards the assessor’s preference.”

I will move on to the specific issues with the current definition of people who lack capacity under the Mental Capacity Act when applied to assisted dying, all of which my amendment 398 attempts to address. Part of my amendment does exactly the same as amendment 322, tabled and already eloquently spoken to by the hon. Member for Bexleyheath and Crayford, so I will be brief on those overlapping bits.

Under the Mental Capacity Act, there is a starting presumption of capacity. That is too lax a standard, as the Royal College of Psychiatrists says in written evidence. I quote:

“The presumption of capacity may be problematic in the context”

of assisted dying, given that the consequence would be the person’s death. This is literally a matter of life and death, and the presumption of capacity must not apply; the work must be done to assess capacity properly and thoroughly. Professor Preston said during the evidence session:

“I think the aim is to have that bit of extra concern, so that we do not presume capacity, but instead almost presume that there is not capacity.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 241, Q307.]

I think those are wise words, and my amendment and amendment 322 seek to give that protection.

Both amendments also disapply section 1(3) of the Mental Capacity Act on helping a person to make a decision. The hon. Member for Bexleyheath and Crayford has already made his point powerfully about that, so I will not add anything further.

There are some differences where my amendment 398 goes further than amendment 322. First, given the uniqueness and irreversibility of the decision, there should also be a higher threshold of probability. As it stands, a person should be treated as having capacity if that is more likely than not, which is sometimes referred to as the “51% sure” approach. It would be much safer if doctors and judges had to establish beyond reasonable doubt that an applicant has capacity, given the significance of the decision. In my view, 51% sure is just not good enough for such a monumental decision, and amending this part of the Bill would ensure a more rigorous and comprehensive assessment.

Secondly—for me, this is one of the biggest issues with the current approach—the Mental Capacity Act requires an impairment of, or a disturbance to, the mind or brain for someone to be considered not to have capacity, irrespective of whether they can make a decision. Under the Bill currently, even if someone cannot understand, retain or use the information to make a decision—they cannot communicate that decision—they will still be deemed capacitous in the absence of an impairment, or a disturbance, of the mind or brain. In the real world, a doctor could assess a patient who gives the impression of being confused, illogical, erratic or inconsistent—everything about them could scream that they are not in a good place to make the decision—but they will still be considered to have capacity if there is no identifiable impairment of, or disturbance in, the function of the mind or brain at that point in time. That potentially puts those with depression, anxiety, learning disabilities or eating disorders, or even those in physical pain, in danger of being considered capacitous.

In oral evidence, Professor Alex Ruck Keene said,

“If I doubt that you have capacity to make the decision to take your own life, or end your life, but I cannot prove it, is it logical or are we required to proceed on the basis that you do?...In other words, I think you cannot understand the information, but I cannot prove the reason that you cannot understand it is that you have an impairment or disturbance.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 90, Q120.]

According to his written evidence to the Committee, this means that someone could be approved for assisted dying even if they did not understand the relevant information, as long as they do not have an identifiable impairment of, or disturbance in, the mind or brain. He wrote,

“the Committee may well feel that it would be problematic that such a person should be considered to be eligible for the receipt of assistance in dying.”

In a letter to the hon. Member for Richmond Park, Professor Alex Ruck Keene KC said,

“no matter how intensive the scrutiny of the person’s capacity, this would not address the issue of the situation where the person appears not to be able to understand, retain, use and weigh the relevant information but that is not caused by an impairment of, or disturbance in, the functioning of their mind or brain.”

That is why my amendment seeks to remove this diagnostic element, so that section 2(1) of the Mental Capacity Act for the purposes of this Bill only would read as,

“a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter.”

That would provide better protections for this life and death decision, and I hope it addresses the issue raised so powerfully by Professor Alex Ruck Keene KC.

As I close, I would like to make reference to amendment 49, tabled by my hon. Friend the Member for Runnymede and Weybridge, which sets out starkly the deficiencies of the current capacity test if it remains unamended for the purposes of this Bill. If autonomy is what counts, and we are using the Mental Capacity Act as gatekeeper for assisted death, then the Bill in its current form means that: a person is assumed to have a capacity as a starting point; a clinician only needs to be just over 50% sure that a person has capacity; unwise decision making is not taken into account in determining capacity; and supported decision making is acceptable—for example, for those with learning disabilities.

I ask the Committee members whether they are comfortable with that. If not, then as a minimum, amendment 322 should be accepted, but ideally my amendment 398 should also be, as it goes even further to increase the threshold for capacity and it addresses the significant issue with the diagnostic leg of the test. I am pleased to say that Baroness Finlay, who established and chaired the National Mental Capacity Forum, supports my amendment. Unlike the current drafting of the Bill, my amendment requires that a person is not assumed to have capacity in the first instance. It requires capacity to be proven beyond reasonable doubt, that unwise decision making is considered in assessing, and that a person is not helped to make a decision. I hope the Committee will support it.

[Danny Kruger]

I am pleased to follow my hon. Friend the Member for Reigate, who set out with incredible clarity the challenges here and the opportunity we have to build on the Mental Capacity Act, and to fulfil its purposes and the purposes of the Bill to ensure that capacity is properly assessed. I will speak to all the amendments in the group very briefly; I certainly will not repeat material points that have been made already. To clarify, I do not propose to push amendment 49 in the name of my hon. Friend the Member for Runnymede and Weybridge to a vote, although I will speak to it briefly. I hope we will vote on the other amendments.

--- Later in debate ---

[Dr Opher]

On tightening capacity assessments, which is what the amendment is trying to do, I would point out that there are a number of amendments coming up that would mandate training for doctors who are registered to assess capacity—for example, amendment 186. In addition, amendment 6 would mandate psychiatric referral if there was any doubt of capacity. Does that not satisfy the hon. Member?

[Danny Kruger]

It pleases me but it does not satisfy me. I am encouraged by it, but I am not fully satisfied. Obviously, it is insufficient. The hon. Gentleman and the hon. Member for Spen Valley put great faith in the training that we are going to introduce. Well, I hope they are right. Let us certainly do as much training as we can— likewise, let us get as much data as we can—but the provision set out is not sufficient, not least because the training will be in the application of the Mental Capacity Act, which we are saying, even if properly applied, has all sorts of problems with it, as my hon. Friend the Member for Reigate explained.

Yes to training and yes to the option of the referral—that should be mandatory, and I think there is a proposal to effect that. Every additional safeguard is welcome. It goes back to my point about whether we are being thorough or simplistic. I am not sure. If I think there are four assessments, but the hon. Member for Stroud thinks there are eight, does that not fail Chris Whitty’s test of being simple? If eight is in fact thorough, would nine not be even more thorough? The suggestion that we have hit it at the perfect sweet spot and that to veer one side is to introduce all sorts of bureaucratic hurdles seems unrealistic. Surely we can apply a little more rigour to this exercise.

[Lewis Atkinson]

I know that we have interacted before about our fundamental difference on the ventilator test: someone saying, “I want to die, please turn off my ventilator” as opposed to, “I want to die, please let me take this substance.” Although we may have a fundamental disagreement on whether those things are the same or different, if he still thinks it is appropriate for the Mental Capacity Act to be used as a one-off test, with no other safeguards, for turning off a ventilator, then why is it appropriate in that situation but not when tested multiple times in this instance?

[Danny Kruger]

I recognise that this is a vital point; I am not surprised that we keep returning to this important distinction. I do think that there is a vital distinction between accepting treatment and declining a treatment. In fact, the treatment proposed here is not a treatment at all—the British Medical Association specifies that it is not a medical treatment. The termination of life deliberately does not apply to a particular condition, whereas a ventilator, or any treatment that one might decline or withdraw, is specific to a particular condition or illness. There is a difference in purpose, even if the effect—which is death—is the same.

To the hon. Member’s point on whether the MCA is appropriate in cases of withdrawal of treatment; well, there we do seem to have a substantial body of clinical practice over many years, to which I am not aware of many objections. My non-expert view is that it is probably appropriate to continue with the MCA in those cases. I do not have an objection there and I am certainly not making that argument. It may well be that it is appropriate, and I am sure we will constantly review the applicability of that particular test in those circumstances. It might well be that some of the problems that I am identifying with the proposed law may also apply in cases of withdrawal of treatment—but I am not aware of that, because I do think they are substantially different. Even if it were perfectly acceptable to apply the MCA in cases of withdrawal of treatment, that does not mean it is appropriate in this case, because they are fundamentally different scenarios. I do not detect that I have satisfied the hon. Member, but it is always good to have the exchange.

I will conclude my challenge to the suggestion that the MCA is universally understood and properly applied. The Court of Protection case of Patricia, a patient with anorexia nervosa, has been referred to a number of times in the course of our debate. We heard evidence from a group of anorexia sufferers who wrote to the Committee to say:

“The judge in the Court of Protection case of Patricia…stated that he had changed his mind several times while considering the evidence. He then came to a different view on capacity from the treatment team. This single case exemplifies how complex the processes described under Clauses 7, 8 and 12 of the Bill in relation to assessment of capacity are likely to be”.

We are not talking about a straightforward process. It is clear from all the evidence we have had that there is a real problem with the way that the MCA would apply.

I want to make a rather obvious point, which is that when the MCA was debated and passed 20 years ago, assisted dying, or assisted suicide, was not on the table; it was not part of those considerations, as far as I am aware. It turns out that Dignity in Dying was on the case back in those days, although I think it was still called the Voluntary Euthanasia Society then. That group was conscious of what would come—I do not think that others were—and I detect that it is quite pleased now with the influence applied then to ensure that the presumption of capacity would be very useful one day when it came to passing an assisted dying law. It was not the intention of the House of Commons or of the Committee that considered that Bill that in fact they were establishing a test that would be applied in the case of assisting suicide and changing the terms of the Suicide Act. I am sure that if that had been the case, it would have been commented on, and I daresay the Mental Capacity Act would not be in its current form, or there would have been some addendum to that effect.

My hon. Friend the Member for Reigate referred to the very powerful evidence from lawyers, Baroness Hale and the Royal College of Psychiatrists about the challenge here. I want to quickly say, in support of amendment 322 in the name of the hon. Member for Bexleyheath and Crayford, that my hon. Friend the Member for Reigate made a powerful argument about impairment; it is striking that the MCA only applies when there are cases of impairment of, or disturbance in, the functioning of the mind or brain—I will not repeat the point she made, but I urge Members to reflect on it.

I will quote Ruth Hughes, a barrister specialising in mental capacity law and inheritance. This refers back to the point that my hon. Friend the Member for Reigate and I discussed in an earlier sitting about the clear opportunity that the Bill affords people to seek an assisted death for the sole purpose of saving their family money. Ruth Hughes says:

“If the…Bill is passed, then this will lead to some of the most vulnerable people dying for others’ financial gain. That is certain…Although in general I would, of course, accept the importance of the presumption of capacity, in relation to assisted dying, I consider that, the burden of proof for capacity should be reversed so that it is necessary to establish capacity to decide to die positively.”

Amendment 322 is tabled for that very obvious reason: there is a clear financial advantage for family members, and, I am afraid to say, there are many other distressing motivations that people might have that are not intended by the Bill’s promoter, the hon. Member for Spen Valley. It feels absolutely appropriate that we reverse the burden and have a much higher test of eligibility than that afforded by the Mental Capacity Act.

I want to make another point, although I do not know how hon. Members will feel about it because a lot of people do not accept that we are talking about suicide, even though it is in the terms in the Bill that we are amending the Suicide Act. The assumption of capacity in somebody taking their own life is what is proposed if we adopt clause 3: we are proposing that somebody has capacity if they end their own life. That implies directly that somebody who is standing on a window ledge or a bridge, about to commit suicide, is assumed to have capacity and to be making a rational decision, which other people should support. I say that directly, because there is a direct read-across with the whole topic of suicide prevention, which obviously we all strongly believe in. How can we say that somebody who is about to take their own life, unassisted, does not have capacity and is not making a settled and informed wish? In which case, why should we stop them or try to wrestle them back from the edge?

[Tom Gordon (Harrogate and Knaresborough) (LD)]

When people are in what is often termed a “crisis”, that would indicate that they are not in a situation where they have capacity. I do not see how the hon. Gentleman can think that it is reasonable to make a comparison between these two things; they are entirely different, and I am sure everyone here would broadly agree with that—I think, on this one, he is sort of on his own. Would the hon. Gentleman be able to offer any further insight into why he thinks that two wildly different situations are analogous—one is in a medical context where people have all the safeguards, and that layer of security and checking, and the other is someone who might be doing something in a moment of desperation?

[Danny Kruger]

The connection is explicitly in terms of the Bill. The Bill disapplies section 2 of the Suicide Act, which makes it illegal to assist somebody to commit suicide. It says that that section no longer applies. This Bill assists people to take their own life—I will not use the word “suicide” if people do not like it. There are other eligibility criteria: I totally acknowledge the hon. Member for Harrogate and Knaresborough pointing out that someone has to have a diagnosis of terminal illness, but that is not the point I am making. I am making the point that, under clause 3, we are saying that somebody who wants to take their own life has capacity, according to the very low bar of having a settled and informed wish. We are assuming capacity in the person who wants to end their own life. I suggest that that presents a real challenge to our national suicide prevention strategy—I will leave that point there, but I welcome any challenges to it.

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

I question whether the hon. Gentleman is making a false equivalence here in the very title of this Bill relating to terminally ill adults.

[Danny Kruger]

There are huge challenges around the definition of terminal illness, as we have already acknowledged—but if the right hon. Lady thinks that somebody who is terminally ill should be allowed to jump off a bridge or out of a window without anybody saying, “Wrestle them back,” she should say so. We think that, whether someone has capacity or is in their right mind or not, they should not end their own life. That is the settled view of this country. That is what the law determines. Currently, it is illegal to help someone to do that. We are proposing to change that, to enable people to help somebody to do that in a medical setting.

The implication of clause 3 is very clear: if one has a settled wish, ending one’s own life is something that we regard as acceptable. It will be very difficult to apply the principles of national suicide prevention when we have acknowledged that suicidal people have capacity. I will leave that point—it is not receiving a great echo of affirmation—but I have not heard any objection to it, other than a lot of head shaking.

--- Later in debate ---

[Jack Abbott (Ipswich) (Lab/Co-op)]

Upcoming amendment 339 to clause 4 addresses that specific point. The hon. Gentleman has been asked this a number of times today, but would he be satisfied if that amendment was passed?

[Danny Kruger]

Sorry—remind me of the detail of the amendment.

[Jack Abbott]

Essentially, the amendment would require that if a person is autistic or has a learning disability, they must be given accessible information and sufficient time to consider it. Additionally, there must be at least either a supporter or an independent advocate there. That amendment was tabled by my hon. Friend the Member for Bexleyheath and Crayford and will be discussed later.

[Danny Kruger]

I would indeed support that amendment; it would go a long way to addressing the concerns that we have here. When we discuss clause 4, I will come on to some suggestions for how we can make sure that people with learning disabilities are properly supported, particularly people with Down’s syndrome.

To finish, I will speak to amendment 50, also tabled by my hon. Friend the Member for Runnymede and Weybridge. If we are going to proceed with the MCA, we need to have it on the face of the Bill, to ensure standardisation —hon. Members have confidently asserted that it happens anyway, although the evidence we have been presented with demonstrates that it does not in all cases. Let us be much more explicit about the requirements that are needed. We should specify the minimum of what needs to be understood for capacity, including understanding the likely process of all treatment options, including non-treatment, and prognostic uncertainty. It is not acceptable, in my view, to have all of that worked out later by clinicians. Parliament must clearly say at this stage what is important.

While Members are looking at the quite extensive terms of amendment 50, it would be good to know what in that list they would object to and why any of it should not be included. It does not change the Mental Capacity Act; it preserves the integrity of the Act. It simply specifies more precisely and gives clear guidance to doctors to ensure that they do the best job they can. Lastly, it states that the patient must have full understanding of the consequences of

“requesting assistance in ending their own life”.

That includes the potential for medical complications at the end. That is a point that has been touched on a little in debate, but I will quickly say a word on that.

It is very important, in my view, that we are clear about what the patient should do, what the doctor should do, what the patient is entitled to do and what the doctor will do, in the event of complications at the end. This is not an abstract question. The Association for Palliative Medicine of Great Britain and Ireland gave evidence to us, stating:

“It is important to highlight the lack of scientific evidence for the effectiveness, failure rates or complications of any ‘approved substance’”,

and pointing out that the proposals in the Bill fall quite short of

“the usual practice of approving treatments in the UK, which mandates careful assessment of drugs and their combinations.”

We do not know how that will be applied in this case. It is a point for later in the Bill how we consider which drugs should be used, but it is relevant at this stage to insist that patients are made fully aware of the drugs that will be used and their potential complications. We often refer to Oregon as an inspiration for the Bill, and the law in Oregon requires the applicant to be fully informed by the attending physician of the

“potential risks associated with taking the medication to be prescribed”.

It might be worth considering that.

Professor House, in evidence to us, pointed out that informed consent—which is obviously a principle of the Bill—

“is not really specified properly. The doctor is required to ask the person what they want to happen in the event of complications without having previously explained to them what all the complications might be.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 169, Q216.]

So I think it is important that we specify that those complications are explained to them clearly at the outset.

This is not an abstract point. Sarah Wootton, chief executive of Dignity in Dying—my least favourite organisation—wrote in her book “Last Rights”:

“We have to move away from idealised, sanitised, nursery-rhyme accounts of what death can be…towards truthful, no bullshit, plain-spoken explanations of what could happen.”

I do not think Dignity in Dying applied that test when putting those disgraceful adverts in the tube, showing people dancing round their kitchens anticipating their lovely death, but she is right that we need to be very clear about what actual death can be like with these drugs.

I want to end with a reference to the work of Dr Joel Zivot, an American academic. The only proper study that can be done into people who have been given lethal drugs to die, using any of the drugs that will be used in this case, is of people who have been executed in the United States. Of course it is not possible to do many studies into the after-effects on people who have had an assisted death, but there have been some studies of people on death row. Dr Zivot’s point is that there is real evidence of what looked like trauma, distress and pain suffered by people as they died. Even if they themselves look peaceful—because often the first drug that is administered is a paralytic, so they are rendered immobile, and they may look very peaceful—it is evident that in some cases there is real distress going on beneath that peaceful exterior. We need to do a lot more work on understanding which drugs would be used and what their effects would be, and that needs to be properly explained to patients. All of that would be captured in amendment 50.

[Dr Opher]

We are talking about a whole different area now, but I would say that, as a medical professional, if someone is gaining consent to a treatment it is in their code of practice under the General Medical Council that they explain all these things. We do not need to write it into the Act; that is already in existence. A more general point is that there is a lot of stuff already in the public domain on doctors’ behaviour that does not need to be restated in the Bill. The more we write, the more likely it is that it will be less safe for patients. I would keep it very simple.

[Danny Kruger]

I really want someone to explain this point to me: how can it make it more unsafe for patients to state the safeguards explicitly? How can it possibly make it harder, or more dangerous, if we specify what—as the hon. Gentleman said—is good practice currently, which the best doctors already do? I greatly respect him and his medical practice, but is he really saying that every doctor conforms perfectly to the GMC guidance? There are obviously clear problems with the way in which some doctors operate, and this is uncharted territory. Surely for the sake of doctors, as well as patients, it would be appropriate to specify explicitly how they should conduct these assessments, what communications they should make and what patients should be properly informed of. I cannot see how that makes it more dangerous.

[Kim Leadbeater]

I want to concur briefly with my hon. Friend the Member for Stroud; I have done a lot of research into this, believe me. We have the GMC, the British Medical Association and organisations that represent medical practitioners. They have very lengthy codes of conduct and behaviour codes. What we cannot do—and I have tried—is to include all that in the Bill, and we have to be cognisant of that in some of the amendments that we make.

[Danny Kruger]

I challenge the hon. Lady, and I would welcome her response to this: we clearly can specify some things that can be done, which is what my hon. Friend the Member for Runnymede and Weybridge has done in half a page with amendment 50, which clarifies explicitly what information the patient should receive and what they should properly understand. How does including this list of pieces of information make the Bill more dangerous for patients?

[Kim Leadbeater]

I am not saying that this amendment would make it more dangerous, but it would overcomplicate things. That is the point that my hon. Friend the Member for Stroud was making. We need to have a very clear piece of good law, and I think the Bill already covers the points in amendment 50 and others, which I fully appreciate have been put forward in good faith. It is the clarity of the law that sometimes has to be the focus. I absolutely concur with the hon. Member for East Wiltshire on safeguards, but unfortunately I feel that we will probably never get to a point with the Bill where he is happy with the level of safeguards, and maybe he is prepared to acknowledge that.

[Danny Kruger]

It is unlikely that I would ever vote for an assisted dying law but, if we are going to have one, I want to make it as safe as possible, which we all want. On those terms, in the spirit of a Bill that is going to pass, why not include these specific pieces of information? The hon. Lady says that, while it would not make the Bill more dangerous, it would overcomplicate it. Again, how does it overcomplicate it to add a few clauses specifying information that must be clearly communicated?

[Kit Malthouse (North West Hampshire) (Con)]

Amendment 50 requires that whoever is medically assessing capacity is also able to understand the legal implications. The final point of the amendment says that they have to understand what the insurance implications are likely to be, which would mean that they would have to inquire into the individual’s financial circumstances. They possibly might need to understand what provision they have made for their family.

It also references what the designation of death is likely to be, which again requires them to decide there and then what they will write on the death certificate, when it happens. As the hon. Member for Stroud said, much of what is in amendment 50 is already either in the Bill or implied by it. As Ministers have said before, we have a duty to the statute book not to embroider it to the extent that it becomes overcomplicated and unworkable. I do not think that any of us would necessarily argue with the points in amendment 50, other than perhaps the last one about legal expertise, but clarity leads to certainty, which leads to safety.

[Danny Kruger]

By that logic, the safest, clearest Bill would be one that simply authorised an assisted death without any of these checks whatsoever. My right hon. Friend made the point that this amendment requires the doctor to discuss with a patient all the implications of their death. That is perfectly appropriate—in fact, if that is not being done at some stage in the process, and if that is not clear in the Bill, it absolutely should be. Otherwise, how can we be sure that the person is making a settled, informed decision, with all considerations taken on board?

I am sorry if that imposes a little extra burden on the doctor. One of the great challenges of the Bill is that, if we are to do it properly and genuinely make it a Bill that is strong in its safeguards, a whole lot of people will have to do a whole lot of work. There will be a huge demand on all parts of the public sector. This is required, I am afraid. I do not accept that the content of the amendment is either already in the Bill or implied in it. There might be some remote piece of GMC guidance that touches on this, which we would hope is properly applied, and I appreciate the point about embroidery. Nevertheless, this is not embroidery; this is upholstery—it is necessary for the Bill to be strong.

[Sarah Olney]

I want to pick up on a point that the hon. Member made before the previous intervention about the rights of the doctors themselves. This is an important point that we do not consider enough. We talk a lot about the rights of the patient, quite rightly, but this Bill will provide the means by which another person can get involved in someone’s death. It is really important that the legislation protects the rights of that person—the doctor involved—as well. Does he agree that providing greater clarity about the standard required to assess capacity will help the doctor to protect their own rights, perhaps in response to legal challenge from families, and that it is important that we consider the rights of the doctor as well as the patient?

[Danny Kruger]

The hon. Lady is absolutely right. It is an interesting irony of the Bill that it is presented as the free choice of individuals, but actually it imposes all sorts of obligations and repercussions on other people—the very term “assisted” conveys that. Many other people will be affected by the decision to take an assisted death. She is right that it would be very helpful for the doctors to be confident that they have done their job properly because they have a clear list of communications they are expected to make.

My understanding is that doctors are indemnified against legal challenge in consequence of decisions they make around this; that is an interesting point and one that I am uncomfortable with, but we will come to that later in the Bill. Leaving lawsuits out of it, from the point of view of the doctor’s professional conduct and their peace of mind, it would be very helpful for them to have it clearly specified what information they are required to convey.

I am grateful for Members’ interventions, and I appreciate the good faith and good sense that has been spoken, but I have not yet heard any reason for objecting to this amendment, other than the possible question of its being otiose and not necessary. That is not a sufficient reason to object to an amendment. We should not be objecting simply on drafting grounds. There can be tidying-up exercises later if there is repetition. I have not heard objections to the content of the amendment, and I would very much welcome Members’ support.

[Naz Shah]

Does the hon. Member agree that the amendment ultimately aims to provide clarity, and that clarity ultimately leads to safety?

[Danny Kruger]

Exactly. A few more words of clarification should not be regarded as burdening the Bill or creating bureaucratic obstacles for doctors and patients; the amendment actually specifies more explicitly what is going on. It is almost akin to the debate we had on amendment 181 and those dangerous words “for the avoidance of doubt”; that is essentially what this amendment does, but it goes further, because it imposes clearer obligations on doctors to do their job properly.

[Jake Richards (Rother Valley) (Lab)]

Much has been covered today, and the issue of capacity was debated at length when the Committee considered clause 1, but I do have some observations.

I am sympathetic to the assertion that there should be changes to presumption and burden. Those are things that I have considered and spoken about with the promoter of the Bill and, outside the Committee, with experts who gave evidence to the Committee. I have spoken about them publicly as well; I am very sympathetic.

At the heart of this, we have two options. We could change the burden and presumption in the Mental Capacity Act 2005 for the purposes of assisted dying, rewriting 20 years of case law and medical practice. There is certainly some value to that, but that would be a radical departure from current medical practice, and there are other concerns. The alternative is to put in place rigorous processes and training around the Mental Capacity Act to ensure that it is implemented properly. After some reflection, I err on the side of the latter option, for a number of reasons.

First, I accept that there is debate among psychiatrists about this issue. We heard evidence from some who deem the Act not to be suitable for this new realm—I accept that we are entering new grounds, and I will come back to that point—but many psychiatrists and lawyers working in this area would deem it uncomfortable and unnecessary to depart from the Act.

Secondly, there is an oddity in changing presumption. There is an oddity in someone having to prove that they have capacity to fulfil their own desire. That oddity is one of the reasons that the Act is drafted as it is. It is partly—there are two sides to this coin—to ensure that there is no discrimination, partly to comply with the Human Rights Act 1998 and human rights more generally, and partly to ensure that we do not end up in a medical situation that is patrician, whereby medical doctors take an intrusive view of capacity rather than meeting the individual as they are.

Thirdly, the Bill, when amended—I will come on to the amendments that give me some comfort—will offer more safeguards than the Mental Capacity Act. Amendment 5 to clause 9(3) would ensure a further level of assessment. My hon. Friend the Member for Spen Valley has indicated that she will support that important amendment, as have all members of the Committee. If there is any doubt, there will be a further assessment by a psychiatrist. That goes some way to reassuring me that it is not necessary to rip up the burden or change the presumption in this area.

I want to make an observation about burden of proof, presumption and the nature of the assessment. Professor Whitty clarified his evidence. It is right that the burden and the presumption do not change, but of course the nature of the assessment rightly changes according to the circumstances. Every assessment of capacity is somewhat different, which is why amendment 50 is too prescriptive, in my view.

Of course, we can consider incredibly serious cases involving deprivation of liberty or the ability to conduct litigation. I have worked with parents whose children are being removed and looked at whether they have the capacity to make decisions about how they present their case. It is very dangerous to compare the severity and the profound nature of different circumstances, but let us not pretend that the Mental Capacity Act is not used to assess the most complex issues of capacity every day.

I am very sympathetic to amendment 50. I have met the hon. Member for Runnymede and Weybridge, who tabled it, and the hon. Member for Solihull West and Shirley to discuss it, but I stress that such a prescriptive provision is not appropriate for primary legislation when we are entering new ground. I accept, as hon. Members with different views have said, that we are entering new territory and that this is difficult. I accept that psychiatrists and medical practitioners will have to think long and hard about the nature of the capacity assessments, especially under clause 9(3), when that is activated. That work will have to be done. It has been set out in primary legislation through some of the training clauses, which have already been referred to.

There is no doubt that there will be a lot of work and consideration, but I do not deem it appropriate to have a clause drafted by one psychiatrist, albeit an undoubtedly esteemed and experienced one: the hon. Member for Runnymede and Weybridge, who tabled the amendment. Rather, the work needs to be done as the Bill is implemented over a two-year period. It needs to be done as part of a full consultation with psychiatrists, once the Bill has been passed, and that should be set out in guidance. That is what would usually happen with deprivation of liberty. I do not think it appropriate for primary legislation to set out the factors for a capacity assessment.

--- Later in debate ---

[Jake Richards]

We are debating lots of different things now, rather than just clause 3. There is an issue as to whether in those cases the individuals were found to have capacity, but we are talking about the process by which someone is found to have capacity, rather than what happens thereafter. We have had that debate, and I am happy to have it, but we are talking now about the process by which people are found to have capacity.

This is the problem with interventions: I have lost my train of thought. This is why people do not take them.

[Danny Kruger]

rose—

[Jake Richards]

But I am happy to take another, although I may come to regret it.

[Danny Kruger]

I have a simple point to make; the hon. Gentleman can work out what he is going to say next while I make my brief intervention.

The point is that the referral to a psychiatrist will happen if the doctor has doubts in their mind. There is not an obligation on the doctor to refer; there is only an opportunity for them to do so, if they conclude that there is a reason. May I put a scenario to the hon. Gentleman? It is not clear whether this could happen under the Bill; well, it could happen, because it is not prohibited. A private practice might establish itself to provide assisted death, with the medical assessments and the support right through to the end—to the final act.

In those circumstances, if a patient goes to one of those clinics, does the hon. Gentleman not see that there might be a risk that the whole incentive of the business, even if it is a charity, will be to expedite the process, tick the boxes and pass people through? Does he not consider it dangerous that there is not an absolute obligation to refer to a psychiatrist and in fact, an obligation to pass a higher capacity test than the one that is currently in the MCA?

[The Chair]

A handy household hint: Members do not have to take interventions if they do not wish to do so. If a Member wants to keep their train of thought, they should feel free not to take an intervention.