Terminally Ill Adults (End of Life) Bill

Lord Markham Excerpts

Friday 14th November 2025 Lords Chamber

[Lord Harper (Con)]

I am going to finish very quickly if you do not interrupt me. The time limit is very clear, and I am going to stick to it, but I am finishing my point. I was coming to the end of my point, and that was not necessary. The Government Chief Whip made it clear that these are incredibly important issues, and we will debate them with courtesy and respect. I will treat people whom I do not agree with on this issue with courtesy and respect. As I have not exceeded the time limit, I do not expect to be yelled at. Let me just finish my point and then I will sit down.

My experience—I am going to go over the time limit only because I was interrupted—as a former constituency MP is that it is better to get these things right in advance, when you draft the legislation, and not spend years trying to fix them afterwards.

[Lord Markham (Con)]

My Lords, I am not an expert on delegated powers, so I must admit to a bit of confusion. I hope that either the Minister or the Bill’s sponsor, the noble and learned Lord, Lord Falconer—or maybe both—can help clear this up.

My understanding of what the Bill is trying to do is to enable the Welsh Senedd to make a choice. If the amendments were to go through as drafted, they would deny that choice, because they would rule out people living in Wales from being able to choose whether they have assisted dying, whereas what I think the Bill is trying to do—I hope that can be clarified in the response—is state that the legislation will enable the Welsh Senedd to decide whether and how it wants to implement the Bill. When the Senedd does that, it can take into account the points that the noble Lord, Lord Harper, made about how the two services could sit alongside each other.

If we were to pass this amendment, we would deny the people of Wales that choice. That cuts right across the principles that the noble Lord, Lord Weir, set out when he said that the decision should be taken in Wales. The amendment would mean that the decision was taken here, which would deny the people of Wales that choice.

[Baroness Smith of Llanfaes (PC)]

My Lords, I thank the noble Baroness, Lady Coffey, for introducing this debate and raising very important questions about devolution, and I look forward to the Minister’s response. I will first address the amendments specifically and then respond to some of the comments raised in the debate.

These amendments, along with a number of others in future groups, would remove Wales from the Bill. Ultimately, I am concerned that this steals the ability of the people of Wales to exercise their choice over how they spend the end of their lives. As was mentioned by the previous speaker, that could create a two-tier system, where people in England can decide while people in Wales are not granted that choice. By removing Wales from the Bill, we leave people in Wales in limbo. That is not the case for Scotland, because Scotland would be able to decide for itself.

It would be irresponsible of us neither to include Wales as part of this legislation nor to allow the Senedd to have the powers to legislate on this important matter. While criminal law remains reserved, health is not. If this Bill shall pass, it will have serious consequences for a completely devolved matter in Wales. This is the situation in which we find ourselves. To address this matter, I have tabled amendments that will be debated in a future group that could resolve this very issue.

As I urged at Second Reading, we must reflect carefully not only on the moral weight of the question before us but on the constitutional responsibility we bear. We must respect and protect the role of devolved Parliaments in matters that are clearly within their responsibility. As noble Lords have mentioned, in a future debate we will discuss giving the Senedd the complete right to legislate in this area. We must not deny people an important choice just because of their postcode.

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[Baroness Smith of Newnham (LD)]

My Lords, I was a member of the committee. The committee noted that we did not take evidence from terminally ill people. That was not a decision that we took as a committee. Suggestions were made and the clerks did not, in the end, manage to provide us with witnesses who were terminally ill, but it was not a decision that was formally taken. I agree that, had we taken evidence from—

[Lord Markham (Con)]

With due respect, I must say, as one of the committee members, that that point was put forward on a number of occasions. Unfortunately, there was a majority of people in the committee of seven to five against, by the way the nomination process worked, so it was the feeling of those members not to invite terminally ill people to speak. The minority of us who were in favour of the Bill tried on a number of occasions to hear them, but that was not allowed.

[Baroness Berridge (Con)]

My Lords, I do not think it is helpful to your Lordships’ House to be going into discussions that included private discussions. The Motion that the House passed did not suggest that. Noble Lords will also know that there are ethical concerns about calling people who are so vulnerable.

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[Baroness Grey-Thompson (CB)]

My Lords, may I clarify that? I have just checked the information. My noble friend is correct in what she says, in that the support was 50:50, but the majority of respondents—64%—opposed expanding eligibility and 65% of them were not confident that consent could act as an adequate safeguard against unfree choices, such as those resulting from coercion or psychopathology.

[Lord Markham (Con)]

My Lords, it is clear, I think, that we all want the same thing here. Whatever one’s feelings about it generally, if this Bill is passed, we want to make sure that the person is in the right position—I do not use either “capability” or “ability”—to make a decision on whether to take part in assisted dying.

We all want the same thing, so what we have to decide is whether we believe that the existing framework, the Mental Capacity Act, can work here. I have heard a body of evidence that says it can. I respect in particular the evidence from Sir Chris Whitty, who, as Chief Medical Officer, is probably our highest adviser in the land in the medical space. He believes that it can do it. I also respect the opinions of the psychiatrists who have written in and said that, in their professional opinion, they are able to use the Mental Capacity Act to assess whether a person is in the right position to take part in assisted dying. So, as the noble Baroness, Lady Andrews, and others have made out, we have a body of evidence and 20 years of experience showing that the Mental Capacity Act can work and is already acting in very similar situations.

One can argue whether these two things are exactly the same, but they are pretty similar: both involve life-and-death situations, such as “do not resuscitate” orders, people deciding not to eat or drink any more, and people with motor neurone disease asking to come off ventilators. These are all very similar situations that, today, are decided under the Mental Capacity Act. So we have a system that is being used and which our best adviser says works, and we are setting an unknown definition against that. If we set about asking, “What do we mean by ‘ability’?”, we would probably all come up with very different answers. This would be untried and tested; it may take years, if not decades, to find something, against something that exists today. It would be very confusing: when do you use the Mental Capacity Act and when do you use this new definition?

Again, we all want the same thing: for the person to be in the right position. Our highest expert in the land says that the Mental Capacity Act can do it, and a number of psychiatrists are also saying that they can make the assessment under it. To my mind, that is what we should be considering.

[Baroness Blackstone (Lab)]

My Lords, I agree entirely with what the noble Lord, Lord Markham, just said. We have a tried and tested way of measuring people’s capacity, but we do not have a single tried and tested way of measuring people’s ability. That is a very broad concept, and anybody who has worked in education at any level will say with absolute certainty that it would be unwise to replace what is currently in this Bill with “ability”. There is no definition of it—it can cover a vast variety of different kinds of ability—and finding an adequate test could take years.