Terminally Ill Adults (End of Life) Bill

Lord Lansley Excerpts

Friday 5th December 2025 Lords Chamber

[Baroness Coffey (Con)]

My Lords, I had originally tabled Amendment 15, which I withdrew, because it looked like I was trying to be nasty and stop the bucket list for people or stop them going on holiday, but that was not my intention. My intention was to think about residency in a proper way. Bearing in mind previous comments from the Minister, I have ended up replacing one amendment with four in order to be precise throughout the Bill.

In essence, I am not convinced that simply being ordinarily resident is enough. I say that because you can be ordinarily resident in more than one country. You can only be domiciled in one country. The issue here is: who is the Bill trying to cater for? I think, frankly—bearing in mind Amendment 23, proposed by my noble friend Lord Frost—that we should be looking at UK citizens and those whom the Government have decided to give indefinite leave to remain, and keep it at that. The element of “ordinarily resident” is that you can have settlement for a purpose. The single purpose could be that you just state that your settlement—your purpose for being ordinarily resident—is simply to take advantage of this Bill. I do not think that is enough.

As regards the amendments that have been tabled by my noble friend Lord Lansley, I also do not want this extending to someone being able to live anywhere in the United Kingdom. Indeed, my noble friend Lord Moylan has perhaps anticipated some of the situations where people have moved abroad and then want to come back. The essence of the Bill should be that it is focusing on providing provision in this country for people who permanently live in this country, which is why “domiciled” is a better test than simply “ordinarily resident”, because, as I say, you can be ordinarily resident in more than one country.

[Lord Lansley (Con)]

My Lords, I have not previously spoken on this Bill, so I hope that noble Lords will understand that I approach the tabling of amendments and speaking to them simply from the point of view of trying to ensure that the Bill is workable. It is of course a Bill which is intended to be provided essentially by the National Health Service, so with these amendments in this group I am entirely saying that we must make this service workable by the National Health Service. If I had to put what I have to say into one sentence it would be: let us have definitions in relation to eligibility by reference to residence that accord with those definitions that are presently used by the National Health Service and let us not try to ask the NHS to become an immigration inspector. I am afraid that there is also the longer version, but I will try to keep it as short as I can.

I have tabled Amendments 11B, 258B, 305A—with my noble friend Lord Howe—306C and 449B. From my point of view, they are not about trying to bring Scots into England and Wales for this purpose; they are about aligning the definitions in the Bill for a service provided by the NHS with the definitions that are used day by day in the provision of NHS services. This is not a bureaucratic issue; it is a practical issue. If the NHS is providing somebody with a service which, in the current circumstances, may be something of a substantial character relating to what develops into palliative or end-of-life care, it should be in a position to provide an assisted dying service, if the person is eligible for that service.

I leave aside the question of whether they come from overseas or Crown dependencies because those persons would not be ordinarily resident in the United Kingdom, and they are probably not registered with a medical practice in England Wales, so they would not be eligible for those reasons. It comes back to the term “ordinarily resident”, which, as the noble Baroness, Lady Finlay, correctly said, is not defined in statute. It is understood in the National Health Service and wherever it is used by the case she referred to, R v Barnet London Borough Council, ex parte Nilish Shah—the Shah case—in which Lord Scarman said that “ordinarily resident” is where a person normally lives

“voluntarily and for settled purposes”,

forming part of the regular pattern of their lives.

It appears in statute, in the sense that the NHS Wales Act requires that services be provided for those persons who, for the time being, are ordinarily resident in Wales, but there is no further definition of “ordinarily resident”. The charging overseas visitors legislation is secondary legislation, but it uses the ordinarily resident test.

What is interesting in this context is that, although “ordinarily resident” is in theory a test of whether one has free access to NHS services or is subject to charging, in practice, when somebody registers with a general practice—no pun intended—they complete form GMS1, which asks those from abroad to identify whether they would be subject to visitor charging outside the practice. But the form also states that:

“Anybody … can register with a GP practice and receive free medical care from that practice”.


So, as far as the NHS is concerned, primary care—essentially community care and everything other than secondary care—is available free to people who are ordinarily resident, and it does not ask or check. From my point of view, the most important thing we should absolutely have in our minds is: are we asking the NHS to change all the practices of its recent history and do something completely different?

I will turn a longer speech into a short speech. My noble friends Lord Moylan and Lady Coffey have tabled some very interesting amendments. My noble friend Lady Coffey’s is interesting, because the question of domicile is a very challenging one in this context. But we would be asking the NHS to become not only immigration inspectors but tax inspectors, since the question of where one is domiciled is a tax issue as well as an immigration issue. I do not think we need to go there at all. All these amendments would do is simply take out all the other amendments, but they also challenge what is in the Bill.

Clause 1 refers to a person who

“is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration”.

In the NHS, I am not aware that anybody tests whether somebody is ordinarily resident in England and Wales. They simply ask whether you are ordinarily resident in the United Kingdom; it is a matter of whether one is charged for NHS services or not. If somebody from Scotland—a later group will examine this in more detail—registers with an English practice, they do not say, “Are you ordinarily resident in England?” They do not ask at all. If they did, they would ask, “Are you ordinarily resident in the United Kingdom”, because that is the only operative test. Further, they do not ask, “Have you been ordinarily resident for 12 months?”, less still, with apologies to the noble Baroness, Lady Grey-Thompson, 60 months, as one of the amendments proposes. They do not ask at all, because it is a matter of fact under common law that one is ordinarily resident “for the time being”.

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[Baroness Andrews (Lab)]

The noble Lord is right, and there are specific instances. The noble Baroness raised one in relation to the Crown dependencies, where these definitions will have to be tested in some way. But the purpose of the Bill is to ensure that people living in this country have a right to the security that they will be treated within the NHS and that the normal rules and behaviours of the NHS will apply to the conduct of this Bill as they do to everything.

[Lord Lansley (Con)]

My Lords, my amendments would remove the 12 months, because that would enable greater alignment with practice in the NHS. I make a plea to noble Lords that we might hear from those who have tabled amendments so that we complete the group more quickly. I think it is a discourtesy to those who have tabled amendments not to hear their explanation for them.

[Captain of the King’s Bodyguard of the Yeomen of the Guard and Deputy Chief Whip (Baroness Wheeler) (Lab)]

My Lords, while we are on the subject of interventions, I remind the Committee that a Member who is speaking may be interrupted with a brief question of clarification. A Member may justifiably refuse to give way. Let us try to stick to the people who have their names on the amendments and make progress.

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[Lord Frost (Non-Afl)]

My Lords, I rise to introduce Amendment 23 in my name. This amendment obviously goes with the thrust of some of the other amendments that have already been proposed and deals with some of the issues that have come up in this debate. It takes a slightly different route from the others by simply adding a new criterion, paragraph (e), to Clause 1, and would therefore restrict access to assisted dying support to two well-defined and well-understood categories of people: British citizens and those with indefinite leave to remain.

The purpose of couching it in this way is twofold: it is designed to do two things. First, it is designed to provide a way of cutting through the eligibility problem that we have been discussing and the ambiguity of some of the definitions by providing two very clear definitions that avoid the border issues and potential uncertainties of meaning in some of the other definitions. It could be read, as I have drafted it, together with the criteria of ordinary residence—in other words, you must satisfy both these criteria to be eligible for assisted dying support—or we could simply remove the ordinary residence criteria and rest entirely on the fact that you have to be a British citizen or have indefinite leave to remain. Both of those are well-understood categories: they are not susceptible to debate and they are both easily proven. That is the advantage of looking at it in this way.

The other purpose is to provide a very clear barrier, for similar reasons, to death tourism for people who obtain short-term visas, or no visa at all, for the purpose of obtaining an assisted death. It would stop England and Wales becoming destinations for this. I want to briefly summarise why we want to avoid that: the reasons have been taken slightly as read in this discussion, but I want to recall them, although not in great depth.

First, without such a provision as my amendment would provide, it becomes more difficult to enforce the safeguards, whatever they are, that end up in this Bill, for example on past medical history and mental health capacity. It can be difficult to obtain international medical records, they are not always written in exactly the same way and they can, from some countries, be relatively easily forged or faked. It is also difficult to confirm that somebody who has a short-term relationship or no relationship with the UK is not being coerced by people abroad or has consistent capacity. So there is that angle to it.

Secondly, there is also the risk of diplomatic complication, taking in non-permanently resident foreign citizens to commit what may be an offence in their home jurisdiction. Some countries will probably feel more strongly about that than others, but the risk exists and this would exclude it.

Thirdly, there are pull factors, an obvious problem that we are very familiar with in the UK: the global appeal of the English language, the ease of registration with a GP, and, as I have said, the laxity of some of the definitions.

Fourthly, there are resource constraints: our healthcare system has finite capacity for end-of-life care, whoever ends up providing it. This amendment ensures that those who end up being eligible are those with a very clear connection to the UK, either with citizenship or the clear right to remain here for as long as they wish.

Finally—

[Lord Lansley (Con)]

My Lords, my noble friend is making interesting points, but I am somewhat worried. He is particularly well-equipped to recognise that there are possibly as many as 1.5 million people from the European Union in this country with pre-settled status who are neither British citizens nor have indefinite leave to remain. There are also probably somewhere between 300,000 and 400,000 Irish citizens living in this country who have neither of these qualifications.

[Lord Frost (Non-Afl)]

That is certainly true. The noble Lord makes a good point. The principle that is in my amendment could be expanded to take in other well-defined categories. I will be more convinced about the Irish category than the EU pre-settled status, given this issue was not anything like an issue when we negotiated the EU treaties that created that status, but that is for discussion if the principle is agreed.

Finally, I will just note that the amendment I have put forward reflects norms elsewhere, notably in Australia and New Zealand. It is quite closely based on Section 9 of the Victoria Voluntary Assisted Dying Act 2017, which, whatever its manifold other weaknesses, is at least clear on this point. I will stop there and look forward to the discussion and the views of the sponsor. I offer this amendment as a potential way of providing more clarity and reducing the level of ambiguity in what is obviously going to be a very important provision in the Bill.

[Lord Harper (Con)]

My Lords, before I speak to my Amendments 300A and 306A, let me just pick up, briefly, a couple of issues that have been raised in the debate.

First, I was very pleased that the noble and learned Lord, Lord Falconer, said it was very important, in response to the noble Lord, Lord Beith, that we dealt with these border issues. He will remember that I spoke on that on the first day of debate, using my experience as a former Member of Parliament for a border constituency and I raised some of the very practical issues that there will be if we do not get that right. The noble and learned Lord will remember that when I was raising these issues, there were people on the other side of the argument who tried to shout me down before I had even finished. I am pleased, therefore, that he recognises that the issues I was raising are important and valid ones. To make sure these issues work properly, we have to worry about both the England-Scotland border and the England-Wales border.

Secondly, I am very grateful to the noble Lord, Lord Pannick, for the free legal advice he provided to me in answering the question about what the courts could do about a human rights challenge. I did not get an answer from the Minister, so I am grateful to have had it from him.

Thirdly, on the point that came up in the debate about Crown servants, if you are a Crown servant, you can retain your ordinary residence status when you are posted overseas—that applies to diplomats, members of the Armed Forces and civil servants. It does not usually apply, though, to people who work for the NHS, local government and so forth, but we do not have to worry about people who work in embassies.

Let me deal with the issues raised by the amendments from the noble Lord, Lord Lansley, because they are relevant to the nature of this service. He is absolutely right that, for primary care, we do not have the same test on residence that we do for secondary care. There is a reason for that. When we were putting in place the changes for secondary care in the Immigration Act, we considered whether we should implement similar changes for primary care—that was after he was Secretary of State for Health. We did not change that position because there is a very significant community benefit for allowing people, who are physically in the United Kingdom, to have access to primary care, so that they can access all sorts of services, particularly if they have a communicable disease or illness. We absolutely want them to seek early treatment, not just for their own benefit but for the benefit of everyone else. That is why we have wider access for primary care than we do for secondary care, which we limit to people who are ordinarily resident. We allow others to access it, but only if they pay for it.

I argue that, if this is to be provided on the NHS, this service should be treated more like how we provide secondary care, rather than how we provide primary care. It is more akin to that sort of treatment than primary care. That is where I respectfully disagree with the noble Lord.

[Lord Lansley (Con)]

I do not think that we are disagreeing, because my amendments would have the effect of applying an ordinary residence test. That ordinary residence test for the assisted dying service would be exactly the same as the one for planned secondary care.

[Lord Harper (Con)]

In that case, I now understand the noble Lord. When he was talking about primary care, I thought he was suggesting that we had a wider remit, so I am very pleased to hear that.

I will now address my amendments and their purpose. They are intended to deal with the fact that under the Bill, as I understand it, it would be the job of the co-ordinating doctor—a clinician—to make the determination about somebody’s ordinary residence. The Medical Defence Union has expressed concern that requiring medical professionals to do that could put them at legal risk. Indeed, as my noble friend suggested, it sort of turns them into immigration officers. That concern was pointed out when we were making the changes to the then Immigration Bill, which is why the people who make those decisions are not clinicians; they are overseas visitor managers and administrators in the health service.

Therefore, my amendments would shift the responsibility for assessing residency from clinicians back to administrators. If NHS trusts were providing this service, they would use their overseas visitor managers to do it. That is an existing structure: they are people who know how these rules work. As I think the noble Lord, Lord Carlile, mentioned, a tool already exists, which is well understood, to enable people to check people’s eligibility. I think this has already come up in the debate, so I will not dwell on it at length, but I note that ordinary residence is not that straightforward; it is designed in case law, not in statute. When we were bringing forward the Immigration Act, the overseas visitors charging review took place in 2012, which concluded that the vagueness of the definition means that ordinary residence is difficult to interpret and apply on an individual case basis.

I have already been quoted by the noble Baroness, Lady Finlay, and now I am in danger of quoting myself. When I was taking through that legislation, I said that the existing rules were complex. One of the things that came through from the audit was that front-line health professionals find them complex. The evidence we got was not just that this was the opinion of front-line professionals—they were actually complex. We tried to make them more straightforward. It was one of the reasons why we introduced the health surcharge. Rather than try to make it more complex for the health service not to treat people, or to test whether they were treating people, we charged people coming into the country and then let them have access to the health service. That seemed to be a more sensible way of doing it.

That is the essence of my amendment, and I suggest to the noble and learned Lord, Lord Falconer, that he looks at it. On Report, it would be helpful if the Bill was amended to take the test for ordinary residence away from the doctor in charge of this and give it to the organisation that is providing it, so that it can be done as part of an administrative function. From the conversations we had at the time, I know that clinicians and medical professionals feel that it is not for them to gatekeep access to these services, both for legal reasons—as set out by the Medical Defence Union—and, as my noble friend Lord Lansley said, because that is not their job. We already have professionals in the health service whose job is to do that, and it would be better if they were given that task rather than clinicians. That is the purpose of my amendment.

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it should refer instead to being ordinarily resident in the United Kingdom. As I understand it, the amendments do not change the policy intention of the Bill but seek to align the language with long-established practice. That seems, if I may say respectfully, to be a sensible amendment, and I look forward to the thoughts of the noble—

[Lord Lansley (Con)]

For the avoidance of doubt, my amendments do intend to change the policy, in that they would remove the 12-month residence requirement.

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I also point out that the noble Lord, Lord Lansley, said, “Get rid of the 12 months, just take it as at the moment you make the declaration”. The problem with that is that you invite the possibility of—

[Lord Lansley (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Can I just finish this sentence?

On the tourism point, it invites the possibility that you can come and genuinely live here until you die in order to get an assisted death, and we do not want that.

[Lord Lansley (Con)]

I think the noble and learned Lord knows that the definition of “ordinarily resident” that is used in the National Health Service is defined in common law. It is about living here as part of your normal pattern of life for a settled and continuing purpose. It is not “at a moment in time”. That is why the 12 months is particularly inappropriate, because it is a matter of judgment at the point at which a test of ordinary residence happens, and one has to demonstrate that one is here for a settled purpose.

[Lord Falconer of Thoroton (Lab)]

I accept that completely. The reason the 12 months is here is to give some degree of assurance that the reason you are living here is not because of an assisted death but because it is your genuine home.

I come to the proposal from the noble Lord, Lord Frost. The way it is drafted, although I cannot believe he meant this in the way that he put it, you have to be ordinarily resident in England or Wales, you have to be a British citizen and you need indefinite leave to remain. I was surprised he was saying it would be an easier test to apply. It would not be an easier test to apply, because you would have to apply both ordinary residence and whether you are a citizen or have indefinite leave to remain. Even assuming the proposal is the more limited one, namely, that you only have to be a British citizen or have indefinite leave to remain and you do not have to be ordinarily resident here, that would not be appropriate, for two reasons.

First, the policy choice that the sponsors of the Bill, myself and Kim Leadbeater, have made is that, if you live here—if you are ordinarily resident here—whatever your citizenship or status, you should be entitled to it. Secondly, and separately, I do not think it is appropriate to make it available for people who, for example, have not lived in this country for 50 or 60 years and have no intention of returning. That would invite death tourism, to use the phrase.

The noble Lord, Lord Harper, said that doctors should not be required to make the assessment. If the position is that there has to be some residence requirement, it is perfectly okay for the two doctors who are concerned with this to make inquiries about where someone lives and how long they have lived here. That is not difficult, and in 99.99% of cases it will not give rise to any problems. Let us assume that most people are honest, and say to the doctor, “I actually live in France but I’m coming here because I want this”. The doctor will say that it is not available. I hear what the noble Lord says, but I do not think it gives rise to particular problems. If there are particular problematic cases, these can ultimately be resolved by the panel.