Terminally Ill Adults (End of Life) Bill

Lord Gove Excerpts

Friday 20th March 2026 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I hope I will be permitted to say something about Wales. I was going to make a much longer speech but my friend, the noble Baroness, Lady Smith of Llanfaes, made an excellent argument on the merits of the issues relating to Wales.

The short point to which I wish to draw attention is the issue in this case. Is it an issue about criminal law? This often arises in questions within a federal form of government, which in reality we have here: how do you characterise this issue? Does anyone really think this is about the criminal law? The criminal law is part of finding the solution, but it is a debate about a moral issue and how to use the resources of the NHS. The criminal law should not be seen as an impediment.

I would have said a lot more about other things but, being accused of wasting time, I will not make that speech. I just draw attention to the problem that arose in 2016-17. Wales wanted to pursue its own policy in relation to what is old-fashionedly known as the chastisement of children. Of course, the chastisement of children is governed by the criminal law. As Wales wanted to do it at a time when there was a Conservative Government in London and a Labour Government in Wales, there was an intergovernmental discussion on how this issue should sensibly be dealt with. It was decided that an exception ought to be written into the Government of Wales Act and the very complicated schedules, permitting Wales to make its own decision. So it was excised from the reservations of powers to Westminster.

All Amendment 844 seeks to do is to make a minor alteration to look at the issue for the people of Wales. Should they be entitled to deal with this issue comprehensively? I say nothing about what happened in the Senedd—enough has been said about that. I remind noble Lords that there will be a new Senedd after 7 May, before the Bill is dealt with, and a very different attitude may be taken. Having heard what has been said about the desire that the people of Wales should not be entitled to make their own decisions, I very much hope we are able to try to focus. What is the issue? Is it one that Wales ought to be able to make? If it is not, the simple solution is a technical one, which can easily be made through Amendment 844.

[Lord Gove (Con)]

My Lords, the inference from some comments during the course of this debate has been that somehow the issues raised in Wales and by the Senedd are peripheral to the centre of this legislation—not at all. The issues that have been raised by the debate are absolutely central to the legislation, as we have heard throughout the debate.

The Bill seeks to change primarily the criminal law, and it goes into some specificity about that. But as has been pointed out very effectively by the noble Lords, Lord Stevens of Birmingham and Lord Goodman of Wycombe, and others, the Bill carries with it certain consequential and potentially hugely consequential changes to the National Health Service—changes that will be made by regulation and are not in the Bill.

That is precisely the point that was at issue when the legislative consent Motion was debated in the Senedd. As my noble friend Lord Harper pointed out, when the Senedd voted on the broad principle of assisted dying—not this legislation but the broad principle—the Senedd was against it. When invited to vote on the legislative consent Motion, the Health Minister in Wales, Jeremy Miles MS, explained to the Members of the Senedd that a legislative consent Motion would be necessary because in the absence of a legislative consent Motion, as he understood it, it would be criminally possible to assist someone in dying, but he would not be able to provide the appropriate detail about whether the NHS would be responsible for that service. The spectre was raised in the minds of those legislating in the Senedd that, in effect, there would be assisted dying but it would be provided privately.

Jeremy Miles might have been confused in his interpretation, but he is the Health Minister in the Welsh Government and was previously the Minister responsible for constitutional relations between the Welsh Government and the United Kingdom Government. It is hardly the case that he is a naif stumbling into this argument without a background in the two most telling areas that the legislation covers.

It was also the case that the Senedd, in that same debate, voted by a clear margin to say that the whole issue had been constitutionally mishandled and that the way in which criminal legislation was being used as a Trojan horse, as has been pointed out, to potentially dramatically change the constitution and the provision of the NHS, was simply not good enough. The Senedd was very clear in voting in that way.

This brings us again to the heart of the problem with legislating for these measures through the Private Member’s Bill procedure. In a previous incarnation, I was the Minister for Intergovernmental Relations. I may have been a bad Minister or a good Minister, but I was a Minister conscious of the fact that the devolution settlement relied on government-to-government operation. When there were disputes between the legislative or the executive decisions of devolved legislatures or devolved Governments, they were resolved by intergovernmental relations and, in particular, by means of a dispute mechanism. As has been pointed out, a variety of questions have been raised specifically about the nature of regulation to do with the NHS that Ministers at the Dispatch Box cannot answer, not because they are unwilling, truculent or obstinate but because, as they clearly say, they are neutral on the Bill.

The Welsh Senedd granted the legislative consent Motion because it feared that it would not be in the driving seat of a vehicle, the ultimate destination of which they were uncertain of and the design of which they had little part in. It felt that this was the only way of ensuring its continued relevance. It was not, as supporters of the Bill in Wales have made clear, an endorsement of the principle of assisted dying, let alone an endorsement of this legislation. It would be dismissive of the people of Wales and reckless in regard to the devolution settlement to interpret that vote as endorsement of this legislation.

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[Lord Gove (Con)]

I had concluded my remarks but I am grateful to the noble Lord for raising this point. Precision medicine, and the advances that it potentially holds for all of us, is a wonderful potential breakthrough, but changes not just to the legislation but to the regulations governing it will be brought forward by the Government. Any concerns that the devolved legislatures have about the operation of them will be addressed by government means—by the Cabinet Office or any other Minister who is responsible for intergovernmental relations.

We had a situation in Wales where the Minister responsible was operating on the basis of assurances that he had been given by the sponsors of this Bill relating to Clause 42. It may well be that the sponsors can clarify what was meant; why it was that Jeremy Miles believed that if a legislative consent Motion had been denied, we would have legal assisted suicide—assisted dying—in Wales without the capacity of a Welsh Minister to determine the future of the NHS as they wished. Perhaps that can be cleared up.

We cannot have a recurrence of that situation, where we are having to clear it up here, having already had the legislative consent Motion, and the relevant Minister having told other Members of the Senedd that the only reason they should back that Motion was because of the fear he had of the effective privatisation of killing in Wales. That is why we must have government legislation, rather than proceeding with a Private Member’s Bill, which is clearly inadequate when we are dealing with the future of the NHS, for the people not just of Wales but the entire United Kingdom.

[Lord Wolfson of Tredegar (Con)]

My Lords, I first take a moment to say from the Front Bench how wonderful it is to see my noble and learned friend Lady Prentis of Banbury—who was here a moment ago.

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[Lord Falconer of Thoroton (Lab)]

I have two points. First, we have made it clear in the Bill that there is no obligation on Welsh Ministers to lay the regulations. In England, they must lay the regulations. In Wales, they may do so; they have a discretion because we thought it appropriate that they should have that choice. If they do not exercise that power, my understanding is that it would be open to the Senedd to pass an Act saying that this has to be done. If no such Act were passed, or the Ministers did not decide to exercise their power under the regulation-making power in this Bill, the consequence would be that the National Health Service would not offer assisted dying in Wales.

[Lord Gove (Con)]

I want to clarify absolutely what the noble and learned Lord the promoter of the Bill is saying. I believe he is saying that, if the Bill passes, we could have a situation where assisted dying is legal in Wales but the NHS does not provide any service—that is theoretically possible—it would be a private service that would be available to citizens in Wales but an NHS service that would be provided in England; there would be that distinct difference. I would just like clarity on that.

[Lord Falconer of Thoroton (Lab)]

That is exactly right. That is why we have given the Welsh Ministers the power to do it. It is for them to decide, because it is not for either the UK Parliament or the Secretary of State here to determine it.

[Lord Gove (Con)]

Again, for clarity, if it were the case that Welsh Ministers thought that NHS resources were better devoted to improving palliative care, for example, or to doing something else, if they said that they would not be providing any resources to support assisted dying, then it would be legal but unfunded. It would be a private service in Wales while it was an NHS service in England.

[Lord Falconer of Thoroton (Lab)]

That is right.

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[Lord Gove (Con)]

My Lords, I am introducing six amendments in the name of my noble friend Lord Frost. My noble friend sends his apologies to your Lordships’ House. He is unavoidably detained but hopes to join us during the debate before 6 pm. In his absence, given that these specific amendments relate to the role of neutral advisers and are bracketed along with the debate on independent advocates, I am taking his place.

The role of neutral advisers is different from the role of independent advocates, and it is important to draw that distinction. So far, we have been discussing the provision that independent advocates can make to ensure that those living with a series of conditions that may impair their ability to be full participants in the process of deciding on their fate are assisted along the way. It is to the credit of the noble and learned Lord, Lord Falconer, that he has listened to the concerns that have been expressed and has put forward his own amendments, which are there to ensure that people living with disabilities or other conditions can have the support that is believed necessary at that stage in the process. A number of concerns have been expressed by noble Lords about whether the amendment from the noble and learned Lord meets the requirements that have been expressed, but nobody can be in any doubt that he is sincere in his desire to meet those concerns.

Neutral advisers relate to a separate part of the process. They relate to Clause 5(6), which states:

“A registered medical practitioner who is unwilling or unable to conduct the preliminary discussion mentioned under subsection (3)”—


that is the preliminary discussion with someone who may seek an assisted death—

“is not required to refer the person to another medical practitioner but must ensure that the person is directed to where they can obtain information and have the preliminary discussion”.

This raises a profound concern. The expectation generally would be that the point of contact and the point of authority for anyone seeking this immensely significant procedure would be a qualified medical practitioner with academic expertise and who is bound by the ethical codes of medical practitioners. Quite understandably, there will be many medical practitioners who will not wish in conscience to fulfil that function. We know that, as it happens, not a single royal college endorses the Bill—some are studiedly neutral—but it is undoubtedly the case that there is, at the very least, a substantial minority of medical professionals who do not wish to discharge that function.

Who will someone be directed to at that stage? The Bill does not specify that whoever is in receipt of that direction should be appropriately qualified. Indeed, in the original legislation as introduced, it was not intended to be the case that the person was “directed” to where they could obtain information but referred. “Refer” was taken out, not because it was a minor quibble on the part of those who objected to the word but because representative medical organisations, including the GMC and others, said that it is quite wrong to talk about referring. A GP refers you to a consultant when it is in the GP’s view that your medical and health interests are best served by another medical professional. Direction is something else; it is a less authoritative and less safe process. That is why the word is there. In his amendments, the noble Lord, Lord Frost, seeks simply to ensure that those to whom the patients or petitioners are directed are individuals who have the authority, neutrality and detachment to offer unbiased and authoritative advice.

It is important that they have not only that expertise but that independence, because a number of the amendments that my noble friend Lord Frost has laid down are there specifically to chart the operation of those providing that advice and to ensure that there is a proper log or register of their operation and the advice given because, as he has pointed out at other times, if we look at other jurisdictions, we can see that sometimes there are some doctors and some figures who become, as it were, the most energetic, determined, implacable advocates of assisted dying and the most generous providers of that service. One of the concerns of my noble friend, which I share, is that some of those to whom individuals are directed will be ideologically committed to a particular end, rather than those governed first and foremost by patient care.

There may be appropriate ways in which those who are in receipt of direction can be held to a high ethical code, be required to be independent and be mandated to have certain expertise, but the Bill is silent on what the qualifications or the monitoring mechanism would be. On a previous occasion, I asked the noble and learned Lord whether the provision in the Bill for regulations would allow the future creation of a national assisted death planning or advisory service. The noble and learned Lord said that they might, but that he did not envisage that. We might consider the provision of such a service a terrible step forward, or we might consider it to be a necessary adjunct to the freedoms that the Bill seeks to create, but at the moment we have a gap. We have the promoter of the Bill saying, “I don’t see the need for such a national service. I don’t see the need for any means by which we can govern, control or support the provision of advice”, yet, at the same time, the Bill explicitly states that people will be directed to those who will provide that advice, who are guided by no code of ethics, who are not held to any particular professional standards and who could be advocates for an ideological outcome that is not in the patient’s interest. I would be fascinated to know the noble and learned Lord’s view of the amendments tabled by my noble friend Lord Frost. I know that he will respond with appropriate consideration.

[Baroness Lawlor (Con)]

My Lords, I would like to follow my noble friend Lord Gove’s able introduction of the series of amendments in the name of the noble Lord, Lord Frost, and add a few words about why they are particularly important, giving a little more detail on some of the individual amendments to supplement that given by my noble friend. The amendments from the noble Lord, Lord Frost, hang on there being a neutral adviser to whom a person is directed if the general practitioner, the medical practitioner in the Bill, does not feel willing or able to discuss assisted dying with them.

The amendments would ensure that the information was provided by someone neutral. Under Amendment 195, they must keep and report a record of the advice or information given, and the date, to the commissioner within five days; and under Amendment 196, they must be an organisation designated as such by the Secretary of State, by regulation, in consultation with the commissioner. They must also be required to make a declaration, as we have heard, that they have no potential conflict of interest as an organisation by virtue of either employing people or having volunteers on the books who have in some way or another been associated with promoting assisted dying—I am glad to see the noble Lord, Lord Frost, here; I stand ready to be corrected by the teacher—for instance, if the organisation supports assisted dying in principle, if it does so politically or ideologically, or if it does so by means of advocacy or employment, or in any way makes money from it. We can think of lobbyists and PR firms who are acting for such organisations.

Neutrality matters and it must be established, particularly since we are dealing with a publicly funded service in the name of, and provided by, the state. As it is, the Bill stands open to an ever-expanding bureaucracy. Bureaucracy itself is likely to be self-perpetuating. There is a danger that those involved may be fervent advocates of assisted suicide. They may be, or may have been, associated with those organisations advocating it, or they may be lobbyists. The Bill as it stands allows the GP to initiate the prospect of an assisted death with a patient suffering from a terminal illness, and perhaps to plant the idea. However, if the GP does not want to enter into discussion of an assisted suicide, the Bill opens the prospect of the patient being referred to someone who will.

The amendments of the noble Lord, Lord Frost, would ensure that, if the Bill becomes law, assisted suicide in the UK does not become a state dying service, as has happened, as some feared, in Canada, including many physicians over there. In some cases, medically assisted dying becomes the default option, with nearly one in 20 deaths now resulting from assisted dying, and 5% opting for this step because of direct pressure from medical professionals—as is well documented, and we have spoken about some of these cases in Committee—or because of indirect pressure such as a lack of housing, of the support needed at home, of financial support or of palliative care. These amendments would ensure that in this country, the person to whom a patient was directed, when a doctor does not want to discuss the issue with them, was neutral and did not have an interest in promoting assisted dying.