Health and Care Bill

Debate between Lord Forsyth of Drumlean and Lord Carlile of Berriew

Lords Hansard - Part 3 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, it is a real pleasure to follow the right reverend Prelate and, given the similarity between his see and my name, I hope I may be able to slipstream some of his authority.

I entirely agree with the noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Moylan, that this is not a debate in which we should be having Second Reading discussions about the principle of assisted dying, and I shall absolutely not do so.

I start by saying a few words about Amendment 203. I was greatly relieved when my noble friend Lady Meacher immediately revealed it to be only a probing amendment, because I had taken the trouble of reading proposed new paragraph (b). This is not the occasion for me to indulge or deploy my inner Rumpole or Henry Cecil by telling your Lordships stories of frauds committed on families by greedy relatives and the like—although there are many to be found in the annals of the criminal courts, even from the time when I practised in north Wales. However, the words “another relevant person” are an absolute recipe for undue influence and ostensible but completely fraudulent carers. I am very surprised that my noble friend, for whom I have enormous respect, thought it right to present such a vague piece of drafting to the House on this occasion.

I am very concerned in relation to both Amendment 203 and Amendment 297 about parliamentary procedure and statutory integrity. I have huge regard for the noble Lord, Lord Forsyth, who is one of our very greatest debaters in this House, and so I listened to him with great care. It has been an unusual occasion to hear him relying on a Liberal Democrat Peer in Scotland and the Scottish Parliament. I am not sure that I have heard him deploy that juxtaposition before—and I am pleased to see that he sees the funny side of that himself. However, I beg him, before Report, to consider whether he has got his concept right or wrong, for I would say that, conceptually, what he proposes is wrong.

I do not want to repeat what was said so clearly by the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Moylan—it does not need to be repeated, and I would diminish it if I tried to—but there are a couple of points to add. One was alluded to very graphically by the noble Lord, Lord Moylan. If, as a rule, one could table an amendment simply saying that the Government—or anyone else, for that matter, as the noble Lord suggested—should present a draft Bill to Parliament, it would be impossible to control. Reference was made to the 200 amendments tabled to the absolutely extant Bill of the noble Baroness, Lady Meacher—it is a living Bill and it can still be debated. It is extremely unfair to suggest, as one noble Baroness did, that those were wrecking amendments. Some of them may be, but the great majority of them are substantive amendments seeking to safeguard vulnerable people. That is one of the things that the private Members’ procedure is for. When a private Member presents a Bill to Parliament—and many have passed; it is not a futile gesture—it has to withstand the same parliamentary scrutiny that we give to the Government when they present Bills before Parliament, such as the police Bill, debates on which a number of us here have been taking part in recently.

Furthermore, let us suppose that the clause from the noble Lord, Lord Forsyth, was passed and that within the 12 months that followed the Government decided not to present a draft Bill to Parliament. I do not believe—though I may be disabused of this by greater judicial minds than mine—that the court would have the power, other than possibly to advise, to order the Government to present such a Bill to Parliament, because that would be a breach of the separation of powers. I do not believe that any judge, other than in a nightmare, would see themselves doing that.

[Lord Forsyth of Drumlean (Con)]

My Lords—

--- Later in debate ---

[Lord Carlile of Berriew (CB)]

I will give way at the end of this sentence. It seems to me that what the noble Lord, Lord Forsyth, is proposing is simply not going to be effective, so what on earth is the point of presenting it?

[Lord Forsyth of Drumlean (Con)]

I rise with some trepidation to take on the noble Lord, Lord Carlile, but could he just reference the point that I made that my amendment does not seek for the Government to produce a Bill? It is a draft Bill. There is no compulsion on the Government to give it time or anything else, and therefore no notion that one would go to the courts. What I am trying to do here is break the logjam. It is completely disingenuous to suggest that we have a Bill before us; we all know that that Bill is going absolutely nowhere, like all its predecessors.

[Lord Carlile of Berriew (CB)]

The noble Lord is trespassing on the old Social Democratic Party by using words like disingenuous. I will give him an example: some years ago, I chaired a Joint Select Committee of both Houses of Parliament dealing with the draft Mental Health Bill. That particular Bill was never enacted after our year of meetings and the report that we produced, but there was not a single person or NGO—including some that have been mentioned today—that did not believe that it was a parliamentary Bill. A Bill is a Bill is a Bill. In this Parliament we have draft Bills but not half Bills. That is my answer to the noble Lord.

I do not want to take up more time. I finish by saying that I think this is a completely misconceived proposal, both procedurally and, were we to come to it, on the merits.