Terminally Ill Adults (End of Life) Bill

Lord Meston Excerpts

Friday 5th December 2025 Lords Chamber

[Baroness Stroud (Con)]

My Lords, I seek clarity on a point raised in precisely this exchange between the noble Lords, Lord Harper and Lord Lansley, particularly on the issue of “ordinarily resident”, following the enthusiasm expressed for aligning the language of the Bill with the usual terms of the NHS.

If we aligned “ordinarily resident” with NHS maternity care, for example, it would act as a definition for who pays but not for who receives the service. All pregnant women are entitled to the service of NHS maternity care; it is only whether it is free that depends on your residency, nationality and immigration status. Those ordinarily resident get free care, while overseas visitors and those not settled may have to pay charges, although care is never refused, and payment plans are available. Can the noble and learned Lord confirm that the enthusiasm for alignment with existing NHS terms would not extend to a widening of service eligibility, and thereby the UK becoming a destination venue?

[Lord Meston (CB)]

I seriously question whether Amendments 11 and 11A are necessary or useful. Following on from what has just been said, my experience in the courts is that the concept of ordinary residence stated in the Bill is well established in our law, workable in practice and well understood by practitioners and judiciary, particularly in family law, where it most often appears. It is a tried and tested expression.

To impose the more stringent precondition of permanent residence, requiring, in effect, unbroken physical presence, could unnecessarily—and, I suggest, unkindly—restrict the mobility of those who are seriously ill, or becoming seriously ill, who might be entitled to the benefits of the Bill if it is enacted. Such people, particularly those who have a clear, stable and lasting residential connection to England and Wales, should not be left to fear that they cannot make even a brief visit away from home, fully intending to return, in case that visit away is said to have changed or interrupted their permanent residence and thereby stopped the clock on their eligibility for assistance under the Bill’s provisions, requiring the qualifying period of 12 months to restart from the beginning. That, I suggest, would be a great disservice to such people and would not be any improvement to the Bill.

As for “domicile”, as others have already said, it is a notoriously difficult concept to define. You can have only one domicile at any one time. It can be a domicile of origin, a domicile of dependency or a domicile of choice. In the explanatory statement to the amendment seeking to introduce the concept of domicile, it is suggested that it would tighten the eligibility requirements. In reality, it would do little more than complicate them—indeed, in some situations, it could loosen them.

You can retain your domicile of origin in this country even if you have not lived here for years. You can also acquire a domicile of choice or revive a domicile of origin immediately on arrival in this country with no minimum period of residence. I therefore suggest that the substitution of “domiciled” for “ordinarily resident” would not be helpful to anyone. I suggest that we should adhere to the concept of ordinary residence.

[Lord Mackinlay of Richborough (Con)]

My Lords, too often we have vague legislation that comes out of our Houses of Parliament, with phrases such as “shall have regard to”. I remember that the Speaker’s Counsel examined this at some length and when I was on the Speaker’s Committee on the Electoral Commission he said, in rather easy speak, “It doesn’t really mean much”. The other term that we hear is “reasonable”.

Now, I am sorry, but in Clause 1 we have “ordinarily resident”, so what does that mean? I am rather disappointed that the Bill has seemingly had a lot of investigation and clarification in the other place, but it comes here with that rather vague phrase within it, which has been examined at some length here and is the reason for this multitude of amendments. Is it a common-law or case-law interpretation? The noble Baroness, Lady Finlay, eloquently opened the debate by saying that it was a vague term and offered some case law. In the Barnet case, it was far from clear.

I have come up with five different types of “ordinarily resident” where there are different rules. There is case law: the one that has been mentioned today, as it should be, is the residence tool that is advanced by the Department of Health. That gives us the closest attempt at explaining what “ordinarily resident” means in healthcare, but it is peculiar because its purpose is to keep people away from healthcare if they are not resident, and hence we charge them, rightly, for those services. One wonders whether that operates as effectively as it might but at least it tries to codify what it means, with guidance.

The noble Lord, Lord Carlile, said that that was easy; I have the guidance here, strangely enough. There are 14 pages, which is blissfully short compared with some guidance, but it has in it the golden phrase: “This list is not exhaustive”. I am afraid that that, in itself, is not that clear, but at least it attempts to be. The legislation before us would restrict the availability of assisted dying to England and Wales, so I support what my noble friend Lord Lansley said about the UK being mentioned in the residency tool, so why not keep that concurrency in considering whether people are validly able to access secondary care?

Then there is the availability of DWP benefits, which are restricted in a wholly different legislative way. If people who are fully domiciled but are away from the country fairly briefly return to it, they would face another mountain of rules to be able to claim universal credit, for instance. That is a whole new raft of interpretation about what “ordinarily resident” is.

Voting is a whole different ball game; that came to light most graphically in the 2014 Scottish referendum on independence. Your Lordships may have noticed that my name is Mackinlay, which one would think had some Scottish connotation, but that is long gone in the mists of time, and I had no part in that vote. However, there could be a family who have had generations of attachment to Scotland, which, merely by dint of living in England for a short period, would have disqualified them from having a say in that rather extensive constitutional referendum; whereas had anybody in England decided to go and live in Scotland for the briefest of periods, within a short time they would have gained the qualification to take part in that referendum.

In election law, we have a whole new raft of interpretation as to what “ordinarily resident” is. We see that in live action quite regularly, whenever there is a parliamentary by-election. Parties seem to aim the finger at other parties and say, “Your candidate has lived here for only five minutes; he is renting his auntie’s flat and is not properly resident”. So even in electoral law, there is complication, but if we are really looking for complication, that would be in tax law.

I support my noble friend Lady Coffey’s attempts to assist us by adding “domicile” into the interpretation, a position that the noble Lord, Lord Pannick, does not seem to agree with, saying that it is infinitely complex. If we look at tax, I am afraid that the whole issue of “ordinarily resident” is the stuff of true complication. There was an attempt to codify it in the Finance Act 2013, where we introduced the statutory residence basis, and even that is not without complication. I should know, because I have exactly such a case on my desk professionally, as a chartered accountant, at the moment: HMRC is trying to claim that somebody who has been out of the country for 10 years has suddenly reacquired UK ordinarily resident status and hence tax status.

We therefore have conflicts across those five different interpretations, and it all depends on whether the state is trying to deny money, such as DWP benefits; deny healthcare, such as by qualification for secondary care only; or trying to get someone into the UK as resident because the state will then be able to claim a lot more tax from them. I am afraid that I have to express to the noble and learned Lord, Lord Falconer, my gross disappointment that we have had an hour and a half of debate on this legislation about one concept of what “ordinarily resident” means. Having listened to a wide-ranging debate by people who have infinitely more experience in the law than I do, we are still all at sea as to what this actually means.

When we come back on Report, we must have a properly defined qualification for assisted dying under this Act, whether that is by a helpful amendment, as proposed by my noble friends Lord Goodman and Lord Frost, which adds a little more to at least determine the qualification, or whether it is properly and very clearly under a case law interpretation, which I think my noble friend Lord Moylan has tried to advance and examine. As it stands at the moment, I am none the wiser, after this expansive debate, as to what that phrase actually means. I would appreciate it if, in his summing up, the noble and learned Lord, Lord Falconer, could say which of those five interpretations is meant by the Bill. I have a sneaking suspicion that it is an attempt to copy the healthcare definition of what “ordinarily resident” means. If that is the case, let us have it explicitly stated in the Bill, so that we at least know what we are talking about.