Terminally Ill Adults (End of Life) Bill (Twenty-ninth sitting)

Stephen Kinnock Excerpts

Committee stage
Tuesday 25th March 2025 Public Bill Committees

[Naz Shah]

When it comes to NHS providers, or any service providers, and contracting or outsourcing, we have legislation in this place for whistleblowing. I raised the subject with the Health Secretary in relation to my local trust only today. With the best will in the world, mistakes happen. We legislated to protect whistleblowers, and that ties in directly to these risks. We must do everything we can to mitigate such risks in the Bill.

[The Minister for Care (Stephen Kinnock)]

It is a great pleasure to serve under your chairship this afternoon, Mrs Harris. The Government remain committed to ensuring the legal robustness and workability of all legislation. For that reason, we have worked with my hon. Friend the Member for Spen Valley on some amendments to the Bill. Where changes have been mutually agreed by my hon. Friend and the Government, I will offer a technical, factual explanation and a rationale for the amendments.

Amendment 525 would remove the Secretary of State’s explicit power to make regulations enabling the provision of assistance as part of the health service in England and Wales. It might therefore prevent such assistance from being provided by the NHS. The Secretary of State would still have the power to make arrangements for the provision of assistance or to delegate the making of arrangements. However, it is doubtful that those arrangements could be made through the NHS; rather, the Secretary of State could, for example, make arrangements for another body to provide assistance.

The effect of amendment 537, as drafted, is potentially ambiguous. However, the Government’s assessment is that it could be interpreted as allowing regulations to enable the provision of assisted dying by a registered charity, while not allowing provision as part of the health service. That could put into doubt whether assisted dying could be provided as part of the NHS in England and Wales.

Amendment 528 would prevent any body other than a public authority from being authorised by regulations to provide assistance as set out in the Bill, regardless of whether that body is contracted to do so by a public authority. That would limit the scope of the Secretary of State’s powers to ensure that assistance is available in the absence of a definition. The meaning of “public authority” might be unclear.

Amendment 529 would remove the power to amend, revoke or repeal legislation via regulations made under clause 32(1) concerning arrangements for assistance, where passed or made before the end of the Session in which the Bill is passed. That could lead to gaps in the Secretary of State’s regulation-making powers and in other legislation. It could also have an impact on the workability of arrangements for assistance and, ultimately, the Bill.

Amendment 530 would add two requirements when making regulations under clause 32, which sets out the Secretary of State’s powers to ensure that assistance is available. The first is that the Secretary of State may not lay regulations before either House under subsection (1) unless an impact assessment of those regulations is also laid before both Houses. The second is that the impact assessment must include an assessment of the impact of the regulations both on the health professional workforce and on the NHS itself. Impact assessments are routinely prepared to accompany secondary legislation. However, the amendment would impose a statutory requirement on the Secretary of State to prepare an impact assessment, which would need to be laid before both Houses. It would therefore create a legal requirement that is not the standard for secondary legislation.

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[Danny Kruger]

First, on the proposed amendment to the NHS Act, will the Minister confirm that the implication is that it is not currently possible to deliver assisted dying services under the Act? Secondly, to help me understand new clause 36, is it proposed that the Government will amend the NHS Act through regulations, a statutory instrument, or will the courts read the new clause as inferring that assisted dying is compatible with the NHS Act? Is there an intention to change the wording of the NHS Act, or is it just that we should now read “healthcare” as including assisted dying? I would be very grateful if the Minister could explain, because it is not clear to me from the phrasing.

[Stephen Kinnock]

New clause 36 creates the basis for the provision of assisted dying services, in compliance with all the legislation that defines how the national health service works. If the new clause is agreed by the Committee, and ultimately by Parliament, further amendments and changes will not be required. It will be the basis for the provision of the assisted dying service, within the framework of all the legislation that defines how the NHS works.

[Danny Kruger]

New clause 36 specifies that the NHS Act will require amendment. Is the Minister saying that that is not in fact the case?

[Stephen Kinnock]

New clause 36 specifies that the Secretary of State will, by regulation, set out the operating framework for the delivery of the assisted dying service. That will be the change to the legislation that is required. I apologise to the hon. Gentleman if I am missing something. I do not know whether we are talking at cross purposes here. What I am saying is that new clause 36 provides the basis for the delivery of the service. I am sorry if I am missing his point, but that is my understanding.

[Kim Leadbeater]

The Minister is absolutely right. The point is that new clause 36 provides that provision for assisted dying services can be made through the NHS. It gives flexibility: if the NHS Act needed to be amended, it could be, but that is certainly not the intention at this stage. The Act has been amended on numerous occasions, not least by the Health and Social Care Act 2012.

[Stephen Kinnock]

I thank my hon. Friend for that clarification. It is very helpful, because I perhaps did not quite understand what the hon. Member for East Wiltshire said. My hon. Friend sets out very clearly the optionality represented in new clause 36.

The new clause further ensures that voluntary assisted dying services provided as part of the health service must be free of charge, unless charging is expressly provided for. Subsection (6) confirms that regulations made under this new clause can make provisions with the same effect as an Act of Parliament, including amending other primary legislation. However, they cannot amend the provisions in this Bill. The amendment also defines voluntary assisted dying services.

Amendment (a) to new clause 36 would prohibit regulations being made that authorise the provision of voluntary assisted dying services by the NHS in England. The Secretary of State would still have a duty to ensure that arrangements are made for the provision of assistance, but not by the NHS. The Secretary of State could, for example, make arrangements for another body to provide assistance, which would mean that the Secretary of State could not ensure that assistance was provided in accordance with the Bill or through the NHS in England. This would apply only to England, not Wales. Welsh Ministers could still make regulations for the provision of voluntary assisted dying services by the NHS in Wales. This could result in a divergence between England and Wales in the provision of assisted dying services.

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

The Committee should be aware that the Isle of Man has today passed an assisted dying Act, and we already have divergence between the different jurisdictions of the United Kingdom.

[Stephen Kinnock]

I think we are all moving in a direction where, if this Bill passes, we would like its delivery in England and Wales to be compatible, based on full respect for the devolution settlement and for the legislative consent motions. Divergence in the context of the devolution settlement is what the right hon. Lady is keen to achieve, and I think she is working with my hon. Friend the Member for Spen Valley to achieve that aim.

Amendment (b) to new clause 36 would provide that the Secretary of State must, by regulations, make arrangements for the provision of assisted dying services in England. The amendment would remove the provision that regulations under new clause 36 may provide that specified references to the health service in the NHS Act include reference to commissioned assisted dying services. Secondly, it removes subsection (5), which states that regulations under new clause 36

“must provide that section 1(4) of”

the NHS Act

“applies in relation to commissioned VAD services”,

which provides that health services must be free of charge unless exceptions apply. Finally, amendment (b) to new clause 36 explicitly provides that regulations made under subsection (1)

“may not amend, modify or repeal section 1 of the National Health Service Act 2006.”

If accepted, the proposed amendment may impact the provision of assisted dying services through the health service in England. The effect would be that section 1 of the NHS Act could not be amended, modified or repealed via regulations under new clause 36(1). The proposed amendment applies only to England, and the restriction does not apply to Welsh Ministers. This could result in a divergence between England and Wales in the provision of assisted dying services, as Welsh Ministers could amend section 1 of the National Health Service (Wales) Act 2006.

Amendment (c) to new clause 36 would limit the scope of the Secretary of State’s power in subsection (1) of new clause 36 to make regulations that secure arrangements for the provision of voluntary assisted dying services in England. Under this amendment, such regulations cannot authorise the provision of assistance by a body other than a public authority, even if that body is contracted by a public authority to do so. That would effectively prevent the NHS from contracting with private providers to provide assistance. The NHS regularly contracts private providers to provide NHS services. It is possible that being unable to do so here may present operational challenges. The amendment applies only to England, and the restriction does not apply to Welsh Ministers. That could result in a divergence between England and Wales in the provision of voluntary assisted dying services.

Amendment (d) to new clause 36 seeks to limit the Secretary of State’s power to amend, revoke or repeal other legislation for the purpose of making provision for assisted dying services.

[Rebecca Paul (Reigate) (Con)]

I am sorry to backtrack slightly, but I want to clarify that the Isle of Man is a Crown dependency and not part of the UK.

[Stephen Kinnock]

The hon. Member is absolutely right that it is a different situation from the point of view of devolution. Perhaps my answer was conditioned by the intervention of the right hon. Member for Dwyfor Meirionnydd, so I perhaps jumped to a conclusion.

[Liz Saville Roberts]

On that point, we are also expecting a decision in Holyrood in Scotland, which I think the Committee will agree is part of the United Kingdom. These jurisdictions influence our discussions in this place.

[Stephen Kinnock]

The right hon. Lady makes a valid point, although Scotland has a different legal system from the one that governs England and Wales. That takes us back to the legal jurisdiction question versus the devolution of health service delivery. How to make those two work compatibly is a key challenge that the Committee is seeking to address.

Amendment (d) to new clause 36 could limit the Secretary of State’s ability to make provision for assisted dying services via the health service in England. For example, it could limit who can commission and regulate assisted dying services, as the Secretary of State will not have the power to amend primary legislation. If the amendment were agreed, the Secretary of State would not be able to make, via regulation, the required amendments to relevant legislation for the purpose of enabling the provision of assisted dying services in England. The Committee may wish to note that the amendment would apply only to England, which could lead to a divergence in provision between England and Wales.

Amendment (e) to new clause 36 would add two requirements. First, it would provide that the Secretary of State could not lay regulations concerning the provision of voluntary assisted dying services in England unless an impact assessment of the regulations is also laid before both Houses of Parliament. Secondly, the impact assessment would need to include

“an assessment of the impact of such regulations on the workforce of health professionals and on the National Health Service.”

An impact assessment is routinely prepared to accompany secondary legislation. The amendment would impose a legal requirement on the Secretary of State to prepare an impact assessment that must be laid before both Houses to assess the impact on the workforce of health professionals and on the NHS in England. Practically, this could cause delays in making regulations under the Bill, by requiring a duplicative impact assessment to accompany each set of regulations, including regulations that make minor or consequential amendments. [Interruption.]

[The Chair]

Order. The Division bell is ringing. There will be multiple votes, so I suggest that we suspend for 45 minutes.

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On resuming—

[Stephen Kinnock]

I was cut off in my prime, but I am ready to start again.

New clause 37 will give the Welsh Ministers a power to make regulations about voluntary assisted dying services in Wales, including regulations to secure that arrangements are made for voluntary assisted dying services to be provided in Wales. Such regulations can make any provision that could be made by an Act of Senedd Cymru and that would be within the legislative competence of the Senedd if it were contained in such an Act. The Secretary of State will be able to make regulations about such services where this would be outside the legislative competence of Senedd Cymru.

Subsection (6) confirms that regulations made under the new clause can make provisions with the same effect as an Act of Parliament, including amending other primary legislation. However, they could not amend the provisions in the Bill. I hope that those observations have been helpful to the Committee.

[Kim Leadbeater]

We have had some excellent and extremely thorough debates covering all aspects of the Bill since the Committee first met. There has been an unprecedented level of scrutiny, and rightly so, given the gravity of the issue. The clause before us is one of the most important that we will consider. Without it, the Bill’s objective of offering a compassionate and dignified choice to terminally ill adults could not be met. The injustices of the status quo would remain, with too many people travelling abroad to seek an assisted death or taking matters into their own hands here at home, alone and often before they need to, in order to protect their loved ones from the threat of prosecution. Those people would be left, as they are now, with no protections against coercion or pressure to end their life and, crucially, with no ability to choose the manner and timing of their death so that they can say goodbye and be remembered by their loved ones as they would wish.

Clearly, some hon. Members do not want those people to have that choice. They are fully entitled to that view. However, if Parliament decides otherwise and gives that choice, it is our responsibility to ensure that it can be exercised without adding constraints and impediments that would serve only to make people’s last days and weeks more traumatic, not less. That is one reason, although not the only reason, why I am clear that the process must be available as part of the range of services available to patients under the NHS and free at the point of need. It must be for the Secretary of State to make provision for the service in England, and for Ministers in Wales to do the same in Wales if the Senedd agrees. The House of Commons must have the opportunity to scrutinise the regulations under the affirmative procedure.

Despite the challenges that it faces, the NHS is a trusted institution staffed by some of the best qualified and skilled health professionals anywhere in the world. Not all of them will want to participate, and it is their absolute right not to, but patients and the wider public should be reassured that assisted dying services would be commissioned and regulated in the same way as other services through the NHS, a system with which they are familiar.

There is another very important reason why I do not believe that voluntary assisted dying should be a service that is separate from the core responsibilities of the NHS. The hon. Member for East Wiltshire and others have described the decision to request an assisted death as a fork in the road. I fundamentally disagree. “Fork in the road” implies that once someone decides which route they will take, that is it: they have chosen their direction of travel. That goes completely against the principles behind the Bill.

The option of an assisted death is just that: it is an option throughout. Right up until the final moment, the person can decide not to exercise that choice. Experience from around the world suggests that consistently 30% to 40% of people do not, but knowing that they have the option has given them the comfort and reassurance that they need to make their final days less stressful and less fearful. It is crucial that the option of a voluntary assisted death remain part of an holistic approach to end-of-life care. If other options—including palliative care or the comfort provided by a hospice or other institution—are working for the individual, they have no need to take it up, but if it remains their clear, settled and informed wish to do so, that is their decision.

My belief that a person requesting an assisted death should be guided through the process, in a health and care environment that they trust and are familiar with, extends to private provision. Other commissioned and regulated services are supplied by a range of providers; the same should apply in this context, as my hon. Friend the Member for Sunderland Central said.

NHS trusts and ICBs may use private providers in some circumstances, as they already do. This provides flexibility, which is important, but what matters is that the safeguards and protections in this Bill will apply no matter where the service is supplied. The same requirements on doctors will apply, including the need to prepare reports and send them to the commissioner, and the stipulation that a medical practitioner cannot benefit financially or in any material way from the death of a person and can only receive reasonable remuneration for providing the service. My new clauses 36 and 37 make provision for this. The amendments to the new clauses seek to frustrate or delay that intention, and I cannot support them.

Perhaps it is the Committee that is at a fork in the road. One route leads towards the correction of an injustice that has already lasted too long, and it offers a safe and compassionate choice at the end of life. The other route is to say that we are okay leaving things as they are, that the status quo is defensible and that people do not deserve to be given that choice.

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[Naz Shah]

I will come on to that point.

As I have said previously, this Bill will not just create a VAD commissioner, but give them the power to assess their own work. That means it is much less likely they will critically assess the data for any signs of a major problem. We all suffer from unconscious bias, even the very senior legal officials who will be eligible to become VAD commissioners. If the data were sent to the chief medical officers as well as the commissioner, that would mean two sets of officials with different perspectives and fields of expertise looking for problems. We would have a much better chance of locating problems earlier that way.

Amendment 172 would change the clause so that the Health Secretary must bring forward such regulations. As things stand, regulations brought forward under the clause would be subject to the negative procedure, which, as all hon. Members know, considerably reduces the amount of parliamentary scrutiny they receive.

Amendment 173 would make regulations under the clause subject to the affirmative procedure. I honestly try to see the arguments for and against each amendment, but I have real difficulty in seeing what the arguments against these two might be. Clearly, notifiable events are important information that must be collected nationally for a transparent assisted dying system. Equally, they need to be governed by regulations so that all doctors participating in the scheme have a clear picture of their responsibilities.

Finally, on such an important matter, Parliament should be required to vote to accept such regulations, as that will increase the scrutiny from both this House and the other place. I appreciate that my hon. Friend the Member for Spen Valley drew my attention to her amendment, which says the commissioner must consult the chief medical officer. However, it does not specify whether the consultation should include data or if it is the beginning of the process; those things are not stated on the face of the Bill. That leaves it open to interpretation, which is why I support the amendments tabled by the hon. Member for Reigate. I thank her for tabling those two very sensible amendments and I urge hon. Members to vote for them. From my perspective, amendment 539 weakens the Bill and we should vote against it.

[Stephen Kinnock]

These amendments seek to ensure that the voluntary assisted dying commissioner receives the necessary information to fulfil their functions in monitoring the operation of the Bill. Amendment 539 empowers the Secretary of State to make regulations requiring registered medical practitioners to notify the commissioner, instead of the relevant chief medical officer, of any event specified in such regulations. That could include the events currently listed under clause 33(2), such as where a practitioner carries out a first or second assessment and provides or refuses to provide a supporting statement. Setting out these events in regulations would allow for greater flexibility.

Amendment 540 empowers the Secretary of State to make regulations enabling the commissioner to require persons or specified descriptions of persons to provide information. For example, this could be access to medical records to inform panel deliberation. The regulations made by the Secretary of State under amendments 539 and 540 may also provide for how such regulations are to be enforced. The enforcement mechanism would help ensure compliance regarding the notification of provision of information to the commissioner under the regulations. Amendments 541 to 544 are consequential amendments.

I turn to amendment 172. As introduced, clause 33(1) provides that

“The Secretary of State may, by regulations, require any registered medical practitioner to notify the relevant Chief Medical Officer of any notifiable event.”

A list of such events is provided in clause 33(2). The effect of amendment 172 would be that the Secretary of State would instead be required to make regulations under clause 33(1), requiring any registered medical practitioner to notify the CMO of any notifiable event. Amendment 173 would require any regulations under clause 33 to be made under the affirmative procedure, rather than the negative procedure, meaning that they would be laid before and approved by both Houses of Parliament.

The purpose of new clause 38 is to allow the sharing of information between the voluntary assisted dying commissioner and certain persons. It would create an information-sharing gateway between the voluntary assisted dying commissioner and the Care Quality Commission, the General Medical Council, the General Pharmaceutical Council and the Nursing and Midwifery Council. The new clause includes a regulation-making power for the Secretary of State to specify any other person that the commissioner may share information with and vice versa. It also creates an information-sharing gateway between the commissioner and the Secretary of State, to enable the sharing of information for the purpose of any function of the commissioner, or any function of the Secretary of State, relating to the operation of the Bill.

New clause 39 provides that where there is a disclosure of information that is required or authorised under the Bill, it will not amount to a breach of confidence or any other restrictions placed on the disclosure of information. The new clause makes clear that data protection legislation still applies and will need to be complied with. It is essential that any provisions under the Bill that require data to be shared do not undermine the public’s trust, security and privacy in terms of their personal data. I hope that those observations will be helpful to the Committee.

Question put, That the amendment be made.

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[Lewis Atkinson]

That is exactly right. For those reasons, I think we need to retain the full five-year review period. As my hon. Friend the Member for Rother Valley outlined, the review of the Act by the Secretary of State will be in addition to the annual reporting from the commissioner and, if we accept new clause 35, in addition to annual reports from the disability advisory board. Clearly, over the course of multiple amendments, we will have strengthened the reporting requirements both in advance of and post implementation.

[Stephen Kinnock]

It is a pleasure to serve under your chairship, Sir Roger. Amendments 452 and 453 would amend the review provisions in clause 35. As the Bill stands, clause 35(1) provides that the Secretary of State must undertake a review of the operation of the Bill and lay a report before Parliament. This is a one-off obligation that must take place after a period of five years, beginning from the date the Bill is passed. Amendment 452 would amend that requirement, and instead require the Secretary of State to undertake a review, and prepare and publish a report every 12 months after the passing of the Bill. Amendment 453 would remove the definition of the initial five-year period and is consequential on amendment 452.

That increased frequency of reporting would naturally increase the administrative burden and cost of the Bill. It is also noted that there will be an implementation period following Royal Assent. It is unclear if the intention is to require the Secretary of State to undertake a review of the operation of the Bill and prepare a report during this implementation period.

[Naz Shah]

I am surprised by what the Minister says on the cost of the Bill. My understanding from our debates on cost is that, if the Bill is passed, its cost will be footed. Why is there a cost implication to this amendment and not to other provisions?

[Stephen Kinnock]

I make these comments without a value judgment; it is simply a statement of fact that an increase in the amount of reporting, and the time and resource that that would take, would inevitably lead to a cost. I make no value judgment on that; I am merely here to point out to the Committee the Government’s view on all aspects of the Bill’s technical implementation, and the consequences of any changes that the Committee may wish to make to it.

Amendments 493 to 495 would change the period after which a review of the Bill is required from five years to three years. As I mentioned, clause 35 provides that the Secretary of State must undertake a review of the operation of the Act and lay a report before Parliament within 12 months of the end of the five-year period after the Bill is passed. The amendments would instead require the review of the operation of the Act and the preparation and laying of the report to take place within 12 months of the end of the three-year period that immediately follows the day on which the Bill is passed. [Interruption.]

[The Chair]

Order. The sitting is suspended until 7.20 pm.

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On resuming—

[Stephen Kinnock]

Amendment 526 would impose a duty on a Minister to arrange for the report on the review of the operation of the Act to be debated by both the House of Commons and the House of Lords within 14 sitting days, beginning with the day after the laying of the report. That goes further than laying the report before Parliament as currently required under clause 35. I hope those observations were helpful.

[Kim Leadbeater]

I will speak briefly to this clause, because some of what I say will be covered in our debate on other clauses. The title of the clause is “Review of this Act”, so it is important to be clear about what we are reviewing. I am sure members of the Committee agree that it is the operation of the Act that needs to be considered. As such, it is important to join the dots between the relevant clauses of the Bill and differentiate between the passing of this legislation and the commencement of its provisions.

I have tabled amendment 548 to clause 42, “Commencement”, which provides that the commencement of the provisions of the Act could be up to four years beginning with the day on which the Bill is passed. I sincerely hope it is sooner than that, but I have tabled the amendment none the less. New clause 40 provides that, until the Act is implemented, the Secretary of State must lay a report before Parliament as soon as reasonably practicable after the first anniversary of the Act being passed, with subsequent reports being laid every six months up to full implementation. It is a comprehensive reporting system, and it is really important to look at what we are reporting on. The reality is that the commencement of the Act could be between two and four years, so a five-year review makes sense.

Amendment 452 negatived.

Amendment proposed: 493, in clause 35, page 21, line 31, leave out “5-year” and insert “3-year”.—(Daniel Francis.)

Question put, That the amendment be made.

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[Stephen Kinnock]

This group of amendments relates to clause 35, which sets out requirements for review of the Act. Amendments 491 and 492 aim to broaden the scope of the assessment criteria for the review.

Amendment 491 would expand the scope of the report that the Secretary of State must prepare at the end of the initial five-year period to include an assessment of the availability, quality and distribution of appropriate care services, as well as health services, to persons with palliative care needs. Care services play an important role in supporting terminally ill individuals with care needs in settings such as care homes and in the community. However, it is not clear what the term “care services” would cover. It could include, for example, unpaid care, private or local authority-funded care, or non-statutory care services such as befriending.

Amendment 492 would extend the people the assessment will cover to include those receiving end-of-life care as well as those with palliative care needs. The Committee may find it helpful to note that, while palliative care focuses on improving quality of life for individuals with life-limiting illnesses at any stage, end-of-life care specifically addresses the needs of an individual in their final year. The Committee may also find it helpful to note that, under clause 2(1) as amended by the Committee, a person is considered terminally ill if their death, in consequence of an inevitably progressive illness or disease that cannot be reversed by treatment, can reasonably be expected within six months.

Clause 35(1) requires the Secretary of State to undertake a review of the operation of the Act, prepare a report on that review, and publish and lay the report before Parliament. The Secretary of State is required to do that during a period of 12 months beginning after the period of five years from the day on which the Bill is passed. Clause 35(3) provides a non-exhaustive list of what the report must set out. Amendment 397 would require that the report includes an assessment of the impact of the legislation on people with learning disabilities, including any concerns about the operation of the Act in relation to them. The amendment does not include a definition of “learning disabilities” and so may introduce legal uncertainty as to what must be included in the report. However, I note that there is an existing definition of “learning disability” in section 1(4) of the Mental Health Act 1983, which could be considered to mitigate this uncertainty if the amendment were agreed to.

[Kim Leadbeater]

Amendments 491 and 492 would expand the scope of the report that the Secretary of State must prepare at the end of the initial five-year period to include an assessment of the availability, quality and distribution of appropriate services by including care services and end-of-life care. It is not clear what “care services” would cover, and I am concerned about the broadness of that term and the lack of a clear definition, so I am not minded to support amendment 491.

Amendment 492 would expand the population that the assessment will cover to include persons with end-of-life care needs alongside those with palliative care needs. That makes sense and, given the purpose of the Bill, the amendment seems sensible, so I am happy to support it.

On amendment 397, which would require consideration of the impact on people with learning disabilities, we have had this conversation several times with my hon. Friend the Member for Bexleyheath and Crayford. As I have said previously, he makes a very valid point with reference to this cohort of people, and as such I am minded to support the amendment.

Question put, That the amendment be made.

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[Lewis Atkinson]

I rise to speak in support of new clause 40. Given the implementation period that we are talking about, the repeated and routine reporting to Parliament on progress is essential, especially for those who want to see this Bill implemented safely and properly. Nevertheless, there are people—some of whom have joined us in the Public Gallery in recent weeks—for whom that needs to be done with deliberate speed, but without any compromise on the safety and thoroughness of implementation. New clause 40 achieves that, and I commend it.

In a different world there would have been a way of us compositing new clause 28 with new clause 40, and I regret that the two are not compatible. My hon. Friend the Member for Bexleyheath and Crayford makes good points around the earlier assessment of palliative care; I do not think that is something that divides the Committee. There have been amendments tabled by many Members over the course of the Committee that have sought to improve and strengthen palliative care as part of a holistic package at the end of life. I wonder if that is something that I could work on with my hon. Friend on Report, even if it is not possible to agree to new clause 28 tonight.

[Stephen Kinnock]

The Government have worked with my hon. Friend the Member for Spen Valley on amendment 546 and new clause 40, which are consequential and linked to other amendments to clause 42, relating to the commencement of the legislation.

New clause 40 would require the Secretary of State to prepare, publish and lay before Parliament a report about progress made towards implementing the Bill, and the Secretary of State’s plans for implementation in subsequent reporting periods. The reporting periods are one year after Royal Assent, and every six months thereafter, until the sixth and final reporting period. Amendment 546 provides that new clause 40 will come into force on the day the Bill is passed.

[Kit Malthouse (North West Hampshire) (Con)]

I wonder whether the Minister would entertain a suggestion. I think the extension to four years is going to cause some concern and questions in the House on Report and Third Reading. Given that the Minister is committing to reporting on a six-monthly basis, it would be helpful if the House had a broad plan against which the Government were reporting on implementation. Does the Minister think it is a good idea, on Report or Third Reading, to come forward with an outline timetable, worked up as part of the general assessment of the project?

[Stephen Kinnock]

That sounds like a sensible approach. New clause 40 sets out the report about progress made towards implementing the Bill. If I have correctly understood what he is saying, the right hon. Gentleman is looking for more flesh on the bones of what that plan should be and look like.

[Kit Malthouse]

Essentially, I was trying to point out that four years is obviously a backstop. It may well be that the Government are able to deliver the service in advance of the four-year deadline. It might be helpful at later stages of the Bill’s progress—certainly in the Lords—if the Government are able to give an indication of what they think the likely timeline might be. Admittedly, there will be flexibility in there, but that might assuage some of the concern raised by the hon. Member for Stroud that four years is quite a long time. The commissioner is going to be appointed at the 12-month mark, and that might accelerate some of the work, but I think having an indication may be helpful for Members.

[Stephen Kinnock]

I get what the right hon. Gentleman is saying now: in essence, there will be different parts of the implementation period that will be done at different times. Data may take so long, training may take so long, and so on. I think what the right hon. Gentleman is asking for is a breakdown of which parts of the Bill could be implemented—

[Kit Malthouse]

An indicative timeline.

[Stephen Kinnock]

Yes. I am very happy to take that up with officials and I will come back to the right hon. Gentleman in short order.

New clause 20 would introduce a requirement on the Secretary of State to lay an annual report in both Houses of Parliament on the impact of the Bill. The report would include the effect of an assisted dying service on access to healthcare, palliative care and assisted dying, and an analysis in relation to people’s socioeconomic status and protected characteristics. That report would sit alongside the existing requirement in clause 35 for a report five years after the Bill is passed. The new clause would require that the first annual report be laid before each House on its first sitting day after one calendar year from the passing of the Bill. The Committee may wish to note that, given the 12-month timeframe, the reporting requirement may start before implementation is complete.

Protected characteristics are defined in section 4 of the Equality Act 2010; however, socioeconomic status is undefined in the new clause, and is not defined elsewhere in the Bill. It is therefore not clear what the assessment of those factors is intended to involve, and it may be difficult in practice for the Secretary of State to determine whether they have fulfilled this duty.

New clause 28 would introduce a legal requirement on the Secretary of State to undertake an assessment of the Bill within 12 months of it being passed, and to publish and lay a report of that assessment in both Houses of Parliament. The Committee may wish to note that, given the 12-month timeframe, the reporting requirement may start before implementation is complete.

Under the new clause, the assessment must cover the extent to which the Bill is on course to meet its aims; the state of health and care services for persons receiving palliative and end-of-life care; the implications of the Bill on those services; any emerging concerns relating to the operation of the Bill; and any steps the Secretary of State proposes to take in response to those concerns. That requirement is in addition to clause 35, which requires a review by the Secretary of State at the end of the initial five-year period after the Bill is passed. That new requirement is wider in scope, and would be required after one year.

Palliative and end-of-life care services are broad, holistic services, provided by a range of professionals and providers—generalist and specialist—across the NHS, social care and voluntary sector organisations. Therefore, measuring the provision is difficult, as relevant consultations and tasks are not always coded as palliative or end-of-life care. Commissioning and contracting processes do not consistently support data collection, with block contracts and grants commonplace. It is also practically difficult to identify the Bill as the catalyst of the implications on those services over the specific period, as they are affected by multiple factors.

Question put and agreed to.

Clause 35, as amended, accordingly ordered to stand part of the Bill.

Clause 36

Disqualification from being witness or proxy

[Daniel Francis]

I beg to move amendment 454, in clause 36, page 22, line 26, at end insert—

“(e) any person who would not have capacity to request assistance to end their own life under this Act.”

[Daniel Francis]

Amendment 454 stands in my name, in relation to the clause on disqualification from being witness or proxy. Clause 36(2) outlines the reasons why an individual cannot be a witness or proxy: if they are a relative of the person; if it is believed they are a beneficiary of the will; if they may otherwise benefit financially; if they are a health professional who has provided treatment or care for the person; or if they have not yet attained the age of 18.

Clearly—particularly on clause 3—we have had long debates about mental capacity, and it does not state in clause 36 as is currently stands that the person who is over 18 has to have mental capacity. Therefore, as the Bill stands, someone could bring their grandmother with Alzheimer’s or dementia along and get her to sign their paperwork. My amendment simply seeks to ensure that the person who is the proxy has mental capacity. I commend the amendment to the Committee.

[Stephen Kinnock]

As drafted, clause 36 sets out individuals who are disqualified from acting as a witness or proxy. Amendment 454 would add to that list and exclude anyone from acting as a witness or proxy who would not themselves have capacity to request to end to their own life under the Bill. This would require there to be an assessment of the capacity of potential witnesses and proxies. There is no corresponding obligation placed on medical practitioners in the Bill to assess the capacity of potential witnesses and proxies, so it is not clear how a person would request, and be provided with, the required capacity assessment.

[Kim Leadbeater]

It is right that there are some exclusions for witnesses and proxies, as set out in the Bill, but although I have no doubt that amendment 454 comes from a good place, it seems both excessive and impractical to conduct a capacity assessment on witnesses and proxies. They are not the patient who is seeking assistance under the Bill, and the role they have is functional and will be overseen by the co-ordinating doctor. The panel can also ask to hear from them if they wish. As such, I cannot support the amendment.

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[Stephen Kinnock]

I thank the hon. Gentleman for that invitation. Clause 38 is a form of insurance policy that enables the Secretary of State to respond to the evolving landscape and changes that may take place, including in the implementation period—for example, to respond to issues relating to data, substances, training or the setting up of the system. It ensures that there is a safety net or fall-back position to enable the Government to make changes that might be required.

[Kim Leadbeater]

Am I correct in thinking that this is a standard procedure, and it relates to very minor amendments, such as consequential and transitional provisions? It would be used not for any big changes to the Bill but for small amendments, and it would be burdensome to put such small changes before Parliament every time they needed to be made.

[Stephen Kinnock]

That is indeed my understanding. These would be minor changes, rather than major, fundamental changes to the Bill.

[Kit Malthouse]

I have seen these clauses in standard legislation before. As I understand it, they are often put in place where new organisations are being established and there may be knock-on effects—for example, where an organisation decides to give itself a particular name or changes its name from the one that is in the Act. It tends to be those small things where powers are vested in the Minister effectively to tinker and sandpaper at the end, to get the organisational structure correct.

[Stephen Kinnock]

That is a good description of it. The wording used in the clause is “consequential and transitional provision”, which is another way of saying exactly what the right hon. Gentleman has described.

Question put and agreed to.

Clause 38, as amended, accordingly ordered to stand part of the Bill.

Clause 39

Regulations

[Kim Leadbeater]

I beg to move amendment 223, in clause 39, page 23, line 4, after “purposes” insert “, and

(b) incidental, consequential, transitional or saving provision.”

This is a standard power for regulations to include the power to make incidental, consequential, transitional or saving provision.

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[Sarah Olney]

The clause, when amended by amendment 545, which we will vote on shortly, brings into stark relief how much of the Bill is to be left to regulations and how little say MPs will eventually get over it. When it comes to voting on Third Reading, MPs will have little certainty on how the Bill will actually operate—so much is to be taken on trust. If, through the gaps and grey areas, people come to harm, that will be on Parliament for failing to address these issues while we had the chance.

Let us consider all the powers that the Bill creates. Clause 5 creates a power to determine what goes into the first declaration, subject to the requirements of amendment 418. Clauses 5, 8 and 19 create powers to determine the training, qualifications and experience of the medical practitioners, with no minimum floor, and we do not even know who will ultimately decide the training—that, too, is to be left to regulations under amendment 186. Clause 6 creates powers to determine the forms of proof of identity, with no requirement for those to be photographic or to prove residency.

Clauses 7, 13 and 21 create powers to determine the statements, declarations and reports required from the doctors and the applicant. Clause 11 creates powers to make regulations for the replacement of the co-ordinating doctor if they have died, are ill or are otherwise unable or unwilling. Clause 15 creates a new power to determine who can be a proxy. Clause 20 creates a power for the approval of drugs and substances to end people’s lives. Clause 28 creates a power to determine the prescribing, dispensing and transporting of approved lethal substances —the right hon. Member for North West Hampshire has called this purely administrative. Clause 29 creates a power to make regulations relating to the registration, certification and recording of deaths. Clause 30 creates a power to issue codes of practice that practitioners must simply “have regard to”.

Clause 32 will create an extraordinarily broad Henry VIII power, as we are completely in the dark as to how the assistance will actually be provided. Clause 33 creates a power to determine which events should be notified to the commissioner and how to enable the exchange of information. That is all to be decided by the Secretary of State, with the detail removed from the Bill.

All those things are to be subject to the negative procedure, except the training and qualification requirement for the first and second doctor, the codes of conduct, and the power for the Secretary of State to arrange for delivery of assisted dying. When a statutory instrument is made through the negative procedure, there is no need for a vote. The only exception, by convention, is when the Leader of the Opposition asks for one, but they understandably would not do so on a conscience issue. In practice, Parliament will never get a say on these matters. Is the Committee content with that?

Even on affirmative statutory instruments, Parliament’s say is limited to a 90-minute debate on a motion that cannot be amended. Suppose that the Secretary of State published a code of practice on the assessment of capacity that MPs felt did not take sufficient account of mental health conditions. They would be faced with the option to vote for it despite its inadequacy, or to vote against it and risk creating a position where there are no codes of practice at all. That is an impossible position to place parliamentarians in, yet that is what the Bill does. It is a massive blank cheque to the Executive.

I say to Government Members, who I know have great faith in the Health Secretary, that according to the Interpretation Act 1978, “Secretary of State” means any Secretary of State. The powers will not necessarily be exercised by the Health Secretary; they could be exercised by another Secretary of State. Indeed, under the doctrine of ministerial delegation, they could be delegated to another Minister who is not a Secretary of State.

I make these points to illustrate that there is an issue of principle that cannot be waved away on the basis that we think someone sensible will exercise the powers. Parliamentary scrutiny matters, and I very much regret that the Bill avoids it through these wide regulation-making powers.

[Stephen Kinnock]

The Government have worked with my hon. Friend the Member for Spen Valley on amendment 223, which would broaden the regulation-making power using standard legal wording so that any regulations made under the Bill can ensure that it works effectively with other legislation.

Amendment 223 agreed to.

Amendment proposed: 545, in clause 39, page 23, line 6, leave out subsections (3) to (5) and insert—

“(3) The Secretary of State may not make a statutory instrument containing (whether alone or with other provision) regulations under section 5(3A), 8(6A),30(3), (Voluntary assisted dying services: England) or (Voluntary assisted dying services: Wales) unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(4) Any other statutory instrument made by the Secretary of State containing regulations under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.

(5) The Welsh Ministers may not make a statutory instrument containing regulations under section (Voluntary assisted dying services: Wales) unless a draft of the instrument has been laid before, and approved by a resolution of, Senedd Cymru.”—(Kim Leadbeater.)

This amendment brings together the various provisions about the procedure for regulations. It also makes regulations under clauses 5 and 8 about training, qualifications and experience, and regulations under NC36 and NC37, subject to the draft affirmative procedure.

Question put, That the amendment be made.

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[Kim Leadbeater]

These amendments are drafting changes, but they are important drafting changes, in that they are about the definitions of first assessment, first declaration, second assessment, second declaration and preliminary discussion. They are small but important changes and I hope that the Committee will support them.

[Stephen Kinnock]

The Government have been working with my hon. Friend the Member for Spen Valley, and some amendments—including all three in this group—have been mutually agreed by her and the Government with the aim of ensuring the workability of the Bill. I shall provide a brief technical, factual explanation and rationale for the amendments.

Amendment 392 would add the meaning of “first assessment” and “first declaration” to the list of definitions in the interpretation provision in clause 40. The effect of the amendment is to ensure that all references to “first assessment” and “first declaration” throughout the Bill are interpreted consistently.

Amendment 393 would insert the meaning of “second assessment” and “second declaration” to the list of definitions in the interpretation provision in clause 40. The effect of the amendment is to ensure that all references to “second assessment” and “second declaration” throughout the Bill are interpreted consistently.

I turn to amendment 424. Clause 4(3) states:

“Where a person indicates to a registered medical practitioner their wish to seek assistance to end their own life in accordance with this Act, the registered medical practitioner may…conduct a preliminary discussion about the requirements that need to be met for such assistance to be provided.”

Clause 4(4), as amended, sets out that where a practitioner conducts a preliminary discussion, they must explain and discuss certain matters with the person concerned. These are:

“(a) the person’s diagnosis and prognosis;

(b) any treatment available and the likely effect of it;

(c) all appropriate palliative, hospice or other care, including symptom management and psychological support”.

The preliminary discussion may not be conducted in isolation from an explanation of and discussion about these matters. Amendment 424 would add a definition of “preliminary discussion” to the list of definitions in clause 40 to ensure that all references to a “preliminary discussion” in the Bill are interpreted in line with the description of the discussion in clause 4(3).

Amendment 392 agreed to.

Amendments made: 226, in clause 40, page 23, leave out line 37.

The amendment is consequential on Amendment 545.

Amendment 424, in clause 40, page 23, line 37, at end insert—

“‘preliminary discussion’ means a discussion of a kind mentioned in section 4(3);”

This is a drafting change.

Amendment 393, in clause 40, page 24, line 5, at end insert—

“‘second assessment’ has the same meaning as in section 8;

“‘second declaration’ has the same meaning as in section 13;”.—(Kim Leadbeater.)

This is a drafting change.

[Danny Kruger]

I beg to move amendment 527, in clause 40, page 24, line 14, at end insert

“provided that such remuneration is not structured in a manner where it would be greater as a result of the registered medical practitioner approving the request.”

This is the point at which the season of consensus is over; I am back to opposing. Amendment 527 would insist that any remuneration for taking part in assisted dying on behalf of the medical profession would not enable a system whereby a medic, practice or private provider would be remunerated according to approving the different stages of the process. I am trying to prevent the provision of any incentive in the system for moving people through it.

We know that there can be a paid private service delivered under the Bill. The concern is that we will create perverse incentives in the system that will prejudice objective decision making. I take the points about the disinterested good faith of all medics; nevertheless, I do not want to put them in danger of feeling the pressure of perverse incentives. We must recognise the importance of keeping absolute financial neutrality in the operation of the Bill. There would be significant ethical red flags about a system that essentially enabled performance-related pay tied to approving requests for assisted dying, let alone paying doctors to provide referrals to a co-ordinating doctor. At the moment, I do not see that the Bill prevents that.

Even if there were no such danger, I am not sure that patients would buy it. From the point of view of trust in the medical profession, we must bear in mind that any doctor could be involved. Any doctor could either raise the suggestion or be required to signpost a patient who raised it themselves—the whole of the NHS is essentially implicated in the proposed system. As the hon. Member for Spen Valley has reiterated today, she wants assisted dying to be an integral part of the NHS. Let us protect the NHS from the distrust of patients by ensuring that financial incentives are not in the mix for these life and death decisions.

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[Lewis Atkinson]

I understand somewhat where the hon. Member for East Wiltshire is coming from, but as a fundamental matter, people have to be paid for time worked. I feel that an interpretation of his amendment is that people would not be able to be paid for time worked. This is not about performance-related pay, as he suggests in that continuation of his—I suggest—scaremongering theme from before, but about remuneration for time worked. For example, if someone is referred for an additional capacity assessment, it is right that the person doing the assessment is paid for their time worked, not as an incentive, but as a normal payment for time worked. I think that the amendment is poorly drafted and not workable. I will therefore vote no.

[Stephen Kinnock]

The amendment is linked to clauses 5 and 8, which define who can and cannot be a co-ordinating or independent doctor. According to the clauses, a person who benefits financially from the death of the person cannot be a co-ordinating or independent doctor. As the Bill stands, clause 40(4) provides that a registered medical practitioner is not to be regarded as benefiting financially, or in any other material way, from the death of a person by reason only of the practitioner receiving reasonable remuneration for the provision of services in accordance with the Bill.

The amendment may broaden what is meant by “benefiting financially”, so that its effect may be to prohibit a person from being a co-ordinating or independent doctor if their remuneration is greater for applications that are accepted than for ones that are rejected. However, as drafted, it is not possible to determine the effect of the amendment with certainty, so further amending is likely to be required at a later stage should the Committee accept the amendment.

[Kim Leadbeater]

I will not test the patience of the Committee by repeating the comments of my hon. Friends the Members for Sunderland Central and for Stroud and, indeed, of the Minister. I am comfortable that subsection (4) as it stands is perfectly acceptable on the remuneration that a doctor can receive. I will not support the amendment.

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Hon. Members may also say that this approach is too cautious. However, every day of our life we expect different levels of caution in different services and operations. We expect anyone who drives on our roads to be trained to a sufficient level to have a driving licence or to be supervised by an instructor, and we expect drivers to carry out basic checks in the mirrors and on the road before they start the car and drive off. We expect a far higher level of training for someone who flies a passenger plane, and we expect aeroplane pilots to carry out a far larger number of checks and to answer questions from air traffic control before they are cleared to take off. That is not excessive; it is a common-sense approach that reflects that there are far higher risks involved in flying a plane full of people above a crowded city than in driving a car. That is the approach that my hon. Friend’s amendment 488 would take. I urge hon. Members to support it.

[Stephen Kinnock]

This group of amendments relates to clause 42, which contains the commencement provisions.

Amendment 547, in the name of my hon. Friend the Member for Spen Valley, provides that clauses relating to the office of the voluntary assisted dying commissioner, which will be introduced under her new clause 14 and new schedule 1, would come into force one year after the Act is passed. Subsection (4) of new clause 14, which relates to the functions of the commissioner, including arranging the work of panels and monitoring the operation of the Bill, would not come into force at this point. The amendment would require the process of recruiting the commissioner and their deputy to begin shortly after Royal Assent. Powers to second staff under schedule 1 may be a necessary tool in resourcing the commissioner in the interim period before the wider Bill comes into force.

Amendment 531 would require the Secretary of State to lay before Parliament a report before assisted dying can be provided and is decriminalised. That report must contain an analysis of the readiness of services to provide assistance and of the training that has been provided under the Bill. The effect of the amendment might be to delay the commencement of the Bill until the specified reports have been laid before Parliament.

Amendment 488 would remove clause 42(3), which provides that any provisions that are not already in force two years after the Act is passed will come into force at that point. That would mean that the Secretary of State will need to make regulations to bring into force all provisions of the Bill except clauses 37 to 41 and clauses 43, which come into force when the Act is passed. In addition, the amendment provides that clause 18 may not be brought into force until a Minister of the Crown has made a statement to both Houses of Parliament that all regulations necessary for the effective provision of assistance have been made. The Minister’s statement must list those regulations. The amendment does not specify which regulations are necessary for the effective provision of assistance, which could create uncertainty. Amendment 489, which is linked to amendment 488, would likewise remove clause 42(3).

As the Bill stands, provisions that have not already been brought into force will automatically come into force two years after the date on which the Act passes. Amendment 548, tabled by my hon. Friend the Member for Spen Valley and drafted with the technical support of Government officials and lawyers, would change that provision from two years to four years.

We have already discussed the proposition to have regular reports on progress towards implementation, as per amendment 546 and new clause 40. The time required to prepare for the implementation of the Bill is clearly a critical point to be weighed when considering the question of workability. Were Parliament to approve the provision of assisted dying services, it would be the role of Government to ensure that a fully functioning, safe and high-quality service is in place for those who wish to access the assistance provided for under the Bill. The delivery of an entirely new service with robust safeguards will need to be carefully and thoroughly developed and tested.

As the Bill has rightly been amended by Members in Committee and several new requirements have been added, the Government now have to assess the critical path to implementation. We will therefore provide clarity to Members, ahead of Report, as to whether any further amendments related to commencement are needed. We will continue to develop our thinking on the matter and will work with my hon. Friend the Member for Spen Valley to explore the potential options for Report, to capture the need both for timely implementation and for ensuring the provision of a high-quality service for people seeking assistance under the Bill.

Amendment 536 would increase the length of time specified under clause 42(3) from two years to five years. That would mean that any provisions that had not been commenced five years after the date on which the Act is passed will automatically come into force at that time.

I turn to amendment 535. As the Bill stands, the Secretary of State may make regulations to commence the provisions of the Bill for England and Wales. The amendment would, in relation to Wales, require Welsh Ministers instead of the Secretary of State to commence the Bill via regulations. Apart from clauses 37 to 41 and 43, which would come into force on Royal Assent, the provisions of the Bill would come into force in Wales on a date or dates appointed by Welsh Ministers in regulations. There would be no automatic two-year backstop for those provisions to come into force in Wales.

The amendment would also require that regulations made by Welsh Ministers be subject to the affirmative resolution procedure in the Senedd. That may have devolution settlement consequences, as the impact could be that the Bill is differentially commenced in England and Wales, potentially creating a disparity, particularly in relation to the introduction of the criminal offences, and a lack of certainty.

I turn to amendment 490. As the Bill stands, regulations made under clause 42(2) will be subject to the negative resolution procedure. The amendment would change the regulation-making procedure so that the Secretary of State could not make commencement regulations unless a draft is laid before and approved by each House of Parliament. It would also add a new requirement that the Secretary of State may not lay the draft regulations until they have laid a report before each House that provides an analysis of the expected efficacy of services and functions performed under the Bill. The amendment provides a non-exhaustive list of the information that the report must contain. The amendment could cause delays to the making of commencement regulations under the Bill.

Amendment 547 agreed to.

Amendment proposed: 531, in clause 42, page 24, line 21, at end insert—

“(2A) The Secretary of State may not make a statutory instrument containing (whether alone or with other provision) regulations under subsection (2) bringing sections 1 or 24 into force unless they have previously laid before Parliament a report containing an analysis of—

(a) the readiness of services to provide assistance and related functions of this Act, and

(b) training that has been provided under the provisions of this Act.”—(Sarah Olney.)

Question put, That the amendment be made.

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[Lewis Atkinson]

I have great sympathy with the intent behind the amendment, and I would like us to get it into a workable form. The hon. Member for Reigate may wish to confirm this, but there is a similar offence in the Surrogacy Arrangements Act 1985—the advertising of surrogacy arrangements is an offence. The important difference in the Surrogacy Act is that there are some further caveats beyond those in the draft amendment— for example, to ensure that there is not inadvertent creation of offences of the type that the hon. Member for Solihull West and Shirley mentioned. The Surrogacy Act sets out that resulting prosecutions would be carried out only with the approval of the Director of Public Prosecutions, to ensure that such safeguards were in place. Although I await the Minister’s comments, I do not think it is possible to support new clause 9 in its current form, for the reasons that the hon. Gentleman lays out.

We have set out that there will potentially be a small number of doctors providing these services. A GP—not a member of the public—would need to know where to direct their patient. I cannot see how, other than by having some form of electronic directory or email correspondence, it would be possible for such people to become available.

I am not able to vote for the new clause at this stage, but I will put it on my notepad of things on which I am keen to work with colleagues on Report, perhaps by learning the lessons from the surrogacy advice and taking advice from Minister. I think we all agree that we should not be advertising to the general public and encouraging these services.

[Stephen Kinnock]

Thank you, Sir Roger, for giving me permission to remove my jacket. It is greatly appreciated. I assume that other hon. Gentlemen in the room are also able to do the same, should they wish to do so.

New clause 9 would make it a criminal offence for a person to advertise their services as a co-ordinating doctor or an independent doctor under the Bill. The offence would apply to a person who, in the course of a business, publishes or causes publication of an advertisement for the services of acting as a co-ordinating doctor or an independent doctor under the Bill, or who prints, devises or distributes an advertisement or causes that for the promotion of such services. The offence is wide-ranging and could include, for example, a person who unknowingly transmitted such advertising via electronic communications or social media.

Should the new clause be passed, further work may be needed to determine how the offence would be enforced. I also note that there is no provision for any defence in relation to the offences—for example, where a person responds to inquiries.

Restrictions on advertising always need careful consideration and drafting, given the potential unintended consequences and European convention on human rights impacts—particularly in relation to article 10, on freedom of speech. That is particularly so when breaches of the restrictions are made a criminal offence, as is the case here. However, article 10 is a qualified right, which means that interference can be justified provided that it is in accordance with the law, pursuant of a legitimate aim and necessary in a democratic society, so although the new clause could engage article 10, it may not violate it.

[Kim Leadbeater]

New clause 9 specifically relates to the advertising of assisted dying services. I fully understand the intent behind it—to prevent the unethical advertising of assisted dying services. I thank the hon. Member for West Worcestershire (Dame Harriett Baldwin) for bringing the issue to the Committee’s attention. However, there are important nuances with the new clause as drafted that need to be addressed, to avoid criminalising individuals or organisations simply for providing information that is essential for those seeking access to those services. I have looked into this issue because it is an important point for the Committee to consider.

Section 4 of the Cancer Act 1939, a useful reference point, bans advertising for cancer treatment. It prevents the advertising of any treatments, regardless of whether they are evidence-based. Similarly, as my hon. Friend the Member for Sunderland Central mentioned, the Surrogacy Arrangements Act 1985 prohibits the advertising of surrogacy services. Both Acts are aimed at protecting individuals from misleading or unethical commercial activity.

The situation with assisted dying is more complex. The new clause is not about advertising unregulated or unproven services; it is actually about doctors who are offering a legal, regulated service to those who meet the criteria. I therefore have the same concerns as the hon. Member for Solihull West and Shirley.

Subsection (3) states:

“Distributing an advertisement includes transmitting it in electronic form, participating in doing so, and providing the means of transmission.”

That is particularly concerning because it could criminalise doctors involved in the process of simply communicating with their patients, such as by sending an email, if they were seen as participating in the distribution of an advert.

The intent is clear: we must prevent the unethical advertising of assisted dying services. However, we must ensure that the new clause does not inadvertently hinder access to legal services by criminalising the actions of doctors who are simply making themselves available in accordance with the law. We must not create barriers for those who need the service, nor should we penalise doctors for providing legitimate, legal services. I recognise the need to prevent the unethical advertising of assisted dying services, especially to avoid commercial exploitation or coercion, but it is essential that we carefully calibrate the clause to ensure that it targets unethical advertising practices without sweeping in legitimate and necessary actions that help people find the care they need in a manner that is lawful and respectful of their autonomy. As such, I am very happy to work with colleagues, including the hon. Member for Reigate, to look at how we can produce something to that effect ahead of Report.

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[Liz Saville Roberts]

I beg to move, That the clause be read a Second time.

We have received additional evidence from the Welsh Language Commissioner that bears on this new clause quite considerably. The comments result from our discussions of amendments 413, 427 and 428, and amendment (a) to new schedule 2, and it is worth having an interpretation of them on record.

The safeguarding process is a matter of Welsh language legal rights and a clear communicative necessity. The Welsh Language Commissioner says that

“it is essential that Welsh speakers can discuss the decision to end their own life through the medium of Welsh if they so wish.”

The key word here is “discuss”. We are very used in Wales to the convention of documentation and information being available in bilingual forms., However, in previous amendments on the Welsh language, I have endeavoured to make sure that those involved in the process are—to the degree that all reasonable steps have been taken—able to converse with fluent proficiency in the preferred language of the person who comes before them seeking their support and their judgment in relation to capacity and coercion.

Therefore, all reasonable steps should be taken to ensure that the key human aspect of this discussion—the conversations between the person and the co-ordinating doctor, the independent doctor and the panel—should be conducted in Welsh, where that is the preferred language. Welsh speakers should not have to request to be able to use Welsh every time the process moves from one person to another; that should be recognised at the beginning of the process. Again, all reasonable steps should be taken to ensure that people are able to communicate in the language with which they are most naturally comfortable—the language that comes to them when they express perhaps their deepest fears and greatest emotions. On occasion, it will be difficult to find people in a reasonable timespan, and we will need to train people in certain roles, but that is where the “all reasonable steps” requirement comes in.

Forgive me, it is late, but it is important for me to take a little time, because the commissioner notes that there has already been some discussion in Committee about whether provisions are necessary in the Bill. The commissioner goes on to say:

“The Welsh Language Standards (No.7) Regulations 2018 are the relevant standards which apply to health boards and NHS trusts in Wales. Although the standards place duties to provide a range of services through the medium of Welsh (such as correspondence, case conferences, documents and forms), they do not go as far as to place duties on health boards to ensure that Welsh speakers can receive clinical services through the medium of Welsh.”

That is why we need my new clause in the Bill. Legislation as it stands in relation to Wales is not sufficient even to give us the “reasonable steps” provision.

The commissioner says that although in Wales

“Welsh Language standards apply to NHS primary care services that are contracted by the health boards, Welsh language standards currently don’t apply to independent providers. However, a limited number of Welsh language duties have been placed on independent primary care providers”—

that is GPs, of course. The commissioner continues:

“As is the case with respect to the Welsh language standards, these duties do not go as far as ensuring that Welsh speakers can receive clinical primary care services through the medium of Welsh.”

That again is why “all reasonable steps” is about doing the best we can to ensure that people are able to communicate in the language that comes most naturally to them.

The commissioner also says:

“It is important to note that the standards set out duties relating to health services in general, while the Bill in question relates to a much more specific and specialised service. It also relates to a highly sensitive issue where being able to provide in an individual’s first language is essential. The key point here is that stronger provisions could be made in an area such as assisted dying compared to that which would be practically possible in standards relating to health services more generally. As such, if there is an opportunity to make specific provisions in legislation regarding ensuring clinical services through the medium of Welsh then it should be done.”

I know that there are two concerns, and I have already mentioned the phrase “all reasonable steps”. I want us to have a decision in this place, here and now, and to hear back from the promoter and Ministers that there is an appreciation that we need something in the Bill. The Welsh Language Act 1993, as it applies to the judiciary, gives the individual only the right to speak Welsh; it does not give them the right to discuss or to be understood. Through the written evidence I have quoted, I hope I have been able to show that the Welsh language standards in Wales do not go as far as we need them to in this legislation.

The other point—again, this is part of our finding our way with amendments—is that my understanding is that the new clause would apply to the geographic area of Wales only; it would not apply in England, as is normal with other legislation in this respect.

I want to hear the response from the promoter and Ministers before I decide whether to press my new clause to a vote. However, I do feel, on this final day, that we need to have something on record that says we respect the use of the Welsh language and we will do our best to ensure that the provisions act effectively in that respect.

[Stephen Kinnock]

The new clause would ensure that anyone seeking assistance under the Bill in England or Wales receives any services, reports, declarations or certificates of eligibility in Welsh if that is their first or preferred language. It is linked to the amendments tabled by the promoter to ensure that the form and content of any statement or declaration be set out in regulations, rather in the schedules to the Bill.

The new clause would require any regulations made specifying the form and content of declarations or statements required in relation to the first declaration, the co-ordinating and independent doctors’ assessments, the second declaration and the final statement to make provision for those to be provided in both English and Welsh.

A legal requirement that all services, as well as reports, declarations or certificates of eligibility, must be provided in Welsh, where an individual’s first or preferred language is Welsh, would go beyond usual practice in England. Such a requirement may lead to operational issues, such as there being a reduced pool of registered medical practitioners or assisted dying panel members who are able to carry out the functions under the Bill.

I want to put on record again the Government’s continued commitment to devolution and to working with the devolved Governments. The Government have taken a neutral position on the Bill and on the matter of assisted dying, but we are committed to working together with the Welsh Government to resolve any legal and technical issues, and to discussing constitutional matters that might arise.

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[Stephen Kinnock]

New clause 30 would introduce a duty on medical or other healthcare professionals involved in a person’s care, including assessing doctors, should they receive an indication that the person is seeking assistance to end their own life contemporaneously with one of their family members.

The duty has two parts. First, the medical or other healthcare professional who receives the indication must notify the person’s co-ordinating doctor and a registered medical practitioner from the person’s GP practice. Secondly, if an assessing doctor receives notification of that fact, they must refer that person for assessment by a registered medical practitioner specialising in psychiatry and a registered social worker, and must take account of their opinion. The assessing doctor must share that opinion with the other assessing doctor.

In the absence of definitions, issues could arise as to who is covered by the term “family member” and as to the meaning of “contemporaneously”. The additional referrals would add to the length of the application process.

[Kim Leadbeater]

I thank my hon. Friend the Member for Ipswich for tabling the new clause. I have some concerns around the broad definition of “family member”. I also feel that it would be potentially excessive if there were a coincidental situation in which, tragically, two members of the same family were terminally ill. I worry about the extra burden it would place on them of going through an even more rigorous process when they had both been assessed under the thorough regime of the Bill, including the multidisciplinary panel. However, the point is worth discussing and I welcome the fact that my hon. Friend has raised it.

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[Stephen Kinnock]

I associate myself with the comments of the hon. Member for East Wiltshire about the amazing work of the staff and the Clerks. May I say thank you very much to everybody?

New clause 34 seeks to prevent assisted dying under the Bill from being considered a medical treatment. As drafted, the Bill is silent on the question whether the provision of assistance under the Bill can be considered a treatment. If accepted, the amendment may be interpreted to mean that the term “medical treatment” in any other legislation may not be interpreted to include assisted dying. The term “medical treatment” is used in many different contexts across the statute book and has different meanings according to context. The clause is therefore likely to produce unpredictable and potentially unintended effects.

[Kim Leadbeater]

We are entering deeply philosophical territory, which is welcome and has happened several times before during the Committee’s proceedings. As ever, the hon. Member for East Wiltshire has raised some interesting points, but my view is that his new clause should not be in the Bill. We all have our views on how we frame assisted dying and choice at the end of life, but I do not think that assisted dying should be defined—or rather not defined—in this way in the Bill.