Terminally Ill Adults (End of Life) Bill

Baroness Coffey Excerpts

Friday 14th November 2025 Lords Chamber

Moved by

[Baroness Coffey]

1: Clause 1, page 1, line 3, leave out “or Wales”

[Baroness Coffey (Con)]

My Lords, group 1 is perhaps not the ordinary place to start when we are considering the issue of Wales, but I have tabled 40 amendments with specific reference to Wales for a reason. We will get into aspects of this in more detail and I am grateful to the noble Baroness, Lady Smith, and the noble and learned Lord, Lord Thomas, for degrouping some of their amendments, because I think it is important that we have a considered debate about how the Bill could potentially apply in Wales. I am also conscious that the Committee will want to get on to the key principles that we will cover in later groups.

My reason for raising this is that the Bill started as a judge-led process, with quite a focus on, in effect, decriminalising parts of the Suicide Act. I am in no doubt that that is a reserved competence: having the one judicial system. I completely accept that. That is not what I am seeking to get into. However, what has happened in the Commons, and even more now in Committee in your Lordships’ House, with the amendments that have been tabled, has basically flipped the Bill into being a Bill on NHS-provided assisted dying—or “assisted suicide”, or “assisted help”; I have forgotten the varieties that are now being proposed on what it is going to be called—and without doubt, health is devolved to the Welsh Government, and therefore the Welsh Senedd.

There have been a number of debates in the Welsh Senedd, and the Welsh Senedd has consistently said that it does not want assisted suicide to go ahead, particularly in Wales, under its devolved elements. That vote was actually taken fairly recently and, as a consequence, I am concerned that aspects of the Bill will, in effect, potentially be breaking the Sewel convention, although I accept that the Welsh Government are now on to their second legislative consent Motion and will have more.

When I have asked the Government questions, I have tried to do it through freedom of information requests, just trying to understand what concerns the Government have had about the Bill and why it has needed, I think, 11.7 full-time equivalent civil servants working in the Department of Health and more than three in the Ministry of Justice to work through and understand the issues that have made the Government decide, “That’s not workable”, “That’s not practical”, “Let’s think about the legal element”. I have been blocked at pretty much every turn. I have been told, on FoI elements, “It’s going to take too long to answer you”. Indeed, I am still waiting for an answer from the Department of Health, but I got another one just saying, in effect, “Well, the Minister mentioned it basically in Committee in the other place, you can look it up yourself”. I am not sure that that is the attitude that is going to help us get through this detailed understanding of where we are.

Returning to Wales, the Government have been having weekly technical meetings with Welsh Government officials. It has not been possible to get information about what has been discussed. Recognising that both Governments are supposed to be neutral on this, this is not a case of government policy formation, which is protected under the Freedom of Information Act, but nor do I feel it is in the spirit of considering the most important Bill of this entire parliamentary Session, indeed of this entire Parliament.

The other aspect I am concerned about is what is happening in the Welsh Senedd. There is clearly a difference of view between the Welsh Senedd and the Welsh Government, and information is not currently being released. I am not trying to get into a whole debate on Wales, but can the Minister give us an understanding of what is happening? I appreciate that the sponsor of the Bill may have the answers, but let us be candid: it is the civil servants who have been doing all the technical work and the sponsor has been doing the more general policy ideation—at least, that is what Ministers told the Select Committee. I know the Select Committee had limited time and I tried to get a discussion about Wales during it, but it was not possible.

I am not going to delay debate on the first group, but it needs some careful consideration. I could make lots of references to reports, which are online, but there is a huge difference in what the Welsh Senedd believes should be devolved and what needs a legislative consent Motion. I am still awaiting an answer from the Government about whether they have requested the legislative consent Motion.

There are many more clauses the Welsh Senedd believes should be in here, and I am looking for a straightforward response from both Ministers on the clauses that they believe are not devolved and why. Ideally, I would like to hear it on the Floor of the House but if the information is not available today, I would be grateful if it could be responded to in a letter to be laid in the Library so that everyone has a proper understanding of what is the responsibility of this House and what is the responsibility of another Parliament. We need to be transparent about what that means, because we should not assume that we have the opportunity to ride roughshod over what other devolved Administrations and Parliaments believe. I beg to move.

[Lord Weir of Ballyholme (DUP)]

My Lords, I rise to support the amendment standing in the name of the noble Baroness, Lady Coffey. Some people may detect from my accent that, although I hail from the great city of Bangor, it is not the great city of Bangor in north Wales but the great city of Bangor in Northern Ireland. I have particular empathy with the amendments that have been put forward by the noble Baroness due to my experience as a Minister in a devolved Administration. The clarity the noble Baroness seeks goes to the heart of the relationship between the devolved Administrations and Westminster, and it is of particular relevance to this Bill.

Generally speaking, a Minister in a devolved institution will face three categories of legislation. First, there will be reserved matters, which are entirely within the purview of Westminster—national issues, which I think everyone would accept. Secondly, there will be a range of issues which, although not strictly reserved, are of such obvious applicability across the United Kingdom that a legislative consent Motion should be applied. I do not see the noble Lord, Lord Foulkes, in his place, but on occasions even the SNP Government in Scotland have been prepared to sign up to legislative consent Motions. The third category—the bulk of legislation—is situations that should be decided locally, where a devolved Government and a devolved Parliament can choose whether to follow what is happening at Westminster and in England, to take a different path in seeking either to virtually replicate or to amend, or to go in a tangentially very different direction. That is at the heart of democratic accountability in devolution.

I believe that this is an issue that should be decided in Wales. It is an issue that should clearly fall into category three. We all know that we have a very unusual constitutional set-up in the United Kingdom, where devolution to Wales, Scotland and Northern Ireland is on a slightly different basis in each case. That can produce some unusual aspects. What we have today is a certain level of anomaly, because this legislation falls into what may be described as a fourth, hybrid category. As the noble Baroness, Lady Coffey, highlighted, the distinction is between the aspects that deal with criminal justice and criminal responsibility, and those that deal with health and social policy, with the former being reserved and the latter being devolved.

It is very clear that the heart of the Bill makes major decisions that impact on health and social policy. However, we are left with a situation for Wales that means, if this goes through unaltered, that the criminal responsibility will be lifted but there will be no regulations coming from this House as to how that will actually be brought about. It is the equivalent of this House saying that we are going to bring in new road safety measures, which will not apply to Wales, but if you are caught speeding on the motorway there could be no criminal sanction against you. What we have potentially arrived at for Wales is the worst of all worlds.

We need to take a step back. We need to ensure that the wishes of the Welsh people, as exercised by the Senedd—they may change over time—are respected. Rather than, in effect, imposing something that then has to be more or less corrected in Wales by way of changes to their health and social policy, we should be allowing the issue of assisted dying to be decided by the Welsh Senedd. If they decide to make those changes, this Parliament should then reflect them by way of changes to the criminal justice system, which I think would be relatively easy to do.

In the absence of that, the importance of these amendments, as outlined by the noble Baroness, Lady Coffey, is that if we cannot get things definitively the right way round, we can at least get a level of clarity over what aspects apply to Wales, rather than a potential wall of obfuscation. This is an ideal opportunity for the Government and the sponsors to highlight where exactly the demarcation is, which will be very helpful as we move through the rest of this Bill.

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I thank the noble and learned Lord, Lord Falconer, for inviting me to a meeting on 3 September; I found it invaluable to meet doctors from Australia. In that meeting, the noble and learned Lord said that there had been significant support. I am interested in whether it is possible to expand on that. We need to understand how many civil servants are currently working on this. Who is running the Bill team? Is it the Ministry of Justice? That would lead us into different discussions. Is it the Department of Health? Last week I met someone who works in a government department. He told me that he is working full-time on the implementation of this Bill; I am not sure he meant to tell me that. Once this Bill passes, the question of how it works absolutely will be life and death.

[Baroness Coffey (Con)]

I am very interested in that, because the response that I have had from the Minister is that nobody should be working on this beyond the Bill team, so nobody should be working on implementation. What the noble Baroness says is very interesting.

[Baroness Grey-Thompson (CB)]

I thank the noble Baroness. At the Lady Mayor’s parade, a member of the public introduced himself and told me that this is what he was doing. We agreed to disagree on the outcome of the Bill. Slightly patronisingly, he followed this up by saying how wonderful he thought I was and to keep going.

I did not mean to make a point that was amusing to the Chamber, as this is far from amusing, but these are the details that we need to understand. Is there far more going on behind the scenes? Is the presumption that very few amendments will be accepted, as happened in another place, or are the supporters of this Bill really open to making it better? I have tabled the second-highest number of amendments; my competitive edge fails in this example, as my noble friend Lady Finlay is about 30 amendments ahead of me. My amendments are to improve the Bill. Many are slight drafting changes, changes of words, which are to improve this Bill. That is our role. That is what we must remember. We have to improve this Bill. We have to make it workable.

Coming back to the point of this grouping, we have to make it work for England and Wales and we have to remember, as people who work in Westminster, that we have a responsibility to the people of Wales and should not step into areas that are not for us to step into.

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[Lord Falconer of Thoroton (Lab)]

I am not sure the noble Lord has quite understood what I have said. It is for the regulations in so far as they deal with the Welsh health service to be delivered by Welsh Ministers, so it is quite inappropriate for us to put them in this Bill.

[Baroness Coffey (Con)]

My Lords, I was brief at the start because I wanted to give the Minister the chance to be transparent for the benefit of this House. I am sorry to say that I hope that the letter will give that, but I am concerned that it will not. The reason I say that has been well explained in the discussions in the Welsh Senedd. In the supplementary to the latest legislative consent memorandum, it says:

“The UKG has not confirmed their position as to whether they believe the consent of the Senedd is required for this Bill as amended at the House of Commons Report stage but have acknowledged that some clauses do”.


When will the Government share with this House what they think is devolved and what is reserved? Why are they reluctant to do so? This is what I am struggling to understand. I have been asked outside this Chamber why am I bothered about Wales. I care about Wales anyway. It may not be widely known, but I went to school in Wales, I have family in Wales and both my parents are buried in Wales. But I would say that I am also here as a legislator.

Having been an MP, a Minister and a Cabinet Minister, I am used to being taken to court on details of legislation, and to the back and forth with devolved Administrations. I am not doing this simply to try to be awkward; we are trying to define the legislation. The Legislation, Justice and Constitution Committee in the Welsh Senedd believes that Clause 1 should be devolved. To give another example, people might be aware of the issue of smacking. Basically, Wales was able to use its child welfare powers and then made a request. We will come on to this later in the debate about amending the Government of Wales Act, I think. If we recognise that the only context under this Bill in which there can be help with assisted death—assisted suicide—has to be healthcare settings then surely there is something there about the Welsh Senedd having the opportunity, through later amendments, to make that determination in the first place.

I mention that now because my noble friend Lord Markham and the noble and learned Lord, Lord Thomas, said we should be deciding the principle of whether this Bill should be seen in that regard. Actually, recognising the whole, I am strongly of the view that this should be taken out of this Bill through an amendment to the Government of Wales Act. That is to some extent why I put tabled this. Will the Minister confirm the Government’s position on Clause 1? I would be very happy to have an answer from the noble and learned Lord, Lord Falconer of Thoroton, on whether he believes that. The Welsh Parliament certainly does.

Further, will the Minister put in the Library the minutes of the meetings so we can understand what is happening between the two Governments about the practicality and legality of this aspect of the Bill? I know that Ministers will, understandably, often say that it is all legally privileged. Those of us who have been in government know that you tend to get small aspects of legal privilege and lots of policy content in regarding and summarising, which is not legally privileged. That is where I hope that we can get this transparency from the Minister and, if necessary, the sponsor—I do not quite understand this; it is one of the most complicated Private Members’ Bills I have ever seen—and, actually, just an answer to whether Clause 1 is reserved or not.

[The Deputy Chairman of Committees (Lord Beith) (LD)]

Does the noble Baroness intend to withdraw the amendment?

[Baroness Coffey (Con)]

I was hoping to get an answer; we can speak more than once in Committee, because we are trying to understand. Otherwise, later days in Committee and Report could become quite painful. I hope to get an answer from the Minister today.

[Lord Falconer of Thoroton (Lab)]

I have been absolutely clear that, in so far as Clause 1 affects a change to the criminal law, it is reserved. In so far as implementation of it by the health service is concerned, that is a matter for the Welsh Government, not the Bill. If there is any lack of clarity in that answer, let me know.

[Baroness Coffey (Con)]

I would be grateful if any advice that has been given to the noble and learned Lord by officials is shared with the Committee. It is helpful, when determining legislation, to understand that, and it would be especially helpful if the Government, who have said they are getting involved only on legality and practicality, were to express their view. They will not even tell the Welsh Government what their view is, and that is very concerning.

[Baroness Merron (Lab)]

My Lords, I just emphasise my previous comments. I think it would be extremely helpful for this debate if I were to write to the noble Baroness setting it all out as she requires, following my previous Answers to Written Questions that have been laid.

[Baroness Coffey (Con)]

I hope that the department will take a better attitude in determining things such as freedom of information requests. We have already had from the Cabinet Office whether it is now in the public interest to declare information that it holds. I hope the Government—I can see that the Deputy Chief Whip is on the Front Bench—will take this away, because it is a serious matter. This is one of the most important Bills that we will consider in this Parliament, and it is important that we have transparency and a full understanding that is shared across the Chamber. With that, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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[Baroness Hayman (CB)]

My Lords, I profoundly disagree with the argument just made by the noble Lord, Lord Blencathra. He suggested that using “ability” rather than “capacity” would end misunderstanding. I cannot agree that that is true because you would be creating an undefined and novel test and substituting that for one that has stood the test of time and is understood by the professionals who will be judged as to whether they have complied with the law when they act on that assessment. I was already committed to the view that we should keep the test that we have, but if I needed further assurance on that, the little interchange between the noble Baroness, Lady Jay, and the noble and learned Baroness, Lady Butler-Sloss, illustrated perfectly to me how one system, difficult though it is, has been used, examined and probed for many years and found to work—as against a new system, where the noble and learned Baroness, with all her experience, had not the slightest idea how that would work.

[Baroness Coffey (Con)]

I think the key difference is that, when this Bill started, it was going to be judge-led. Now it is not and, as a consequence, we are talking about one of the most experienced judges we have ever known; so I think we are comparing apples and pears.

[Baroness Hayman (CB)]

I cannot accept that. I am talking about the Bill that we have before us. The noble Lord, Lord Harper, asked: should we have a novel approach to this? My answer is no; it is safer to continue with the approach that we have.

I want to say one other thing to the Committee. I hope the Committee will accept that, given the experience that I have had here and the honour I had of being Lord Speaker, no one respects more the contribution that this House can make to improving legislation and the commitment that it should do its work properly. The noble Lord, Lord Harper, said that we were blessed in this House with many experts, and that their opinions should be listened to. The noble Lord, Lord Shinkwin, said that we should listen to the voices of those with lived experience. I am sad that the Select Committee did not do that, but I think that that is absolutely correct.

The one thing that we are not is what was said to me in 1974: “You have now been anointed by the popular vote”. I was then a Member of Parliament. It was a long time ago—in ancient times—but it was true. What has worried me slightly about the tone of this debate is that there has been a sense that this was a Private Member’s Bill introduced in the House of Lords, and that we were having the first go at any scrutiny of it. That is not true; it is not true at all. We do often get legislation from the other place that has not been scrutinised, but that is not true of this Bill. It has had much more scrutiny and I think we should have some respect for the fact that that has happened.

People say that we should not have an arbitrary timetable. Of course we do not want an arbitrary timetable. We have to do our job properly, but we should not be forced into a position where we are incapable of completing that job due to having an enormous number of amendments. We should concentrate on the important issues that we want the other place to take our views on seriously. I really think we are in danger of demeaning that process if we allow so much debate that we do not allow the other place to hear considered views on the important issues.

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[Baroness Grey-Thompson (CB)]

My Lords, there is probably one thing we can all agree on today: everyone’s frustration with the process of evidence giving. I was hugely frustrated when the committee in another place was looking for evidence but deaf and disabled people’s organisations were not able to give evidence, despite making up 25% of the population.

I hope that I speak on behalf of the whole House when I say how sad it is that my noble friend Lady Campbell of Surbiton is not able to be in her place. She has experience in politics and in the House of Lords of extensively debating capacity, on what became the Domestic Abuse Act and in previous debates on assisted dying. I would urge anyone who has time to look at her contributions on capacity.

My noble friend is an individual who, I am afraid to say, in her 66 years, has been deemed terminal more times, probably, than most of us in the Chamber combined. She has had her capacity challenged probably an equal number of times. I remember a few years ago, when I had not long been in your Lordships’ House, when my noble friend was in hospital and several of us had phone calls to say that we needed to get to the hospital right away because they were challenging her capacity. Her husband was told that she was not able to make decisions on her care because she was delusional. Why was she delusional? Because she had told the doctors that she was a Member of the House of Lords. The response was, “She can’t be in the House of Lords—she’s disabled”. I cannot remember whether her husband got away with taking her pass in; there was talk about having to take her seal in to prove that she was in the House of Lords. But this highlights some of the issues with mental capacity assessment.

I have had personal experience of it. When my father was ill and the doctors found out I had lasting power of attorney, I was taken to one side to argue that he should have a different set of treatment. He had the capacity and ability to decide what he wanted. In this case, he had to have his leg amputated, and he was told that, as a wheelchair user, he would have no quality of life—they said that to me. If there was one thing I could do for my father, I could get him a wheelchair.

More recently, I have had an experience with my husband. At the end of 2020, he had a blood clot on the brain stem—he had a stroke, and he was blue-lighted to hospital. It was a dreadful experience. My daughter was in her first year at university and had to be called home. We did not think he was going to make it, and we were not allowed into the hospital. I was frequently told by the medics that he had no capacity to make a decision on his treatment. My husband said, “Look at the notes”; I said, “Look at the notes”. What they were arguing over in terms of his capacity was his ability to walk. Looking at the notes was really important, because his lack of ability to walk was nothing to do with the fact that he had a stroke; it was due to the fact that he had had a spinal cord injury in 1984 when he crashed his pedal bike into the back of a double-decker bus.

I understand what the Chamber is saying. I have personal experience where I think the Mental Capacity Act has been used in the wrong way. We have to find a way of making it work so we are able to take care of capacity. Like others, I am not entirely sure that “ability” is the right word. I understand what I mean by “ability”; I have amendments later on around the ability to understand decisions. I have one on British Sign Language because of the case of a deaf man who was told by a nurse who could only fingerspell that he had HIV when he did not—he thought for two days that he had HIV—and I have another amendment around people with learning disabilities. So maybe “ability” is not the right word.

My noble friend Lord Pannick talks about legal definitions, and I also have a number of very minor amendments which look at a better legal definition of disabled people. Perhaps we can take this away, work on it and do something. As the noble and learned Baroness, Lady Scotland, said, we have to make it work. We have to look at the Mental Capacity Act through the prism of the Bill, not in terms of what it was designed to do.

[Baroness Coffey (Con)]

The importance of the amendment in the name of the noble Baroness, Lady Finlay of Llandaff, is that, as has already been well described, there are genuine concerns about the appropriateness of the Mental Capacity Act 2005 as it stands. I think also that there has been more interest at this point because, so far, it has not been deemed to be in scope to put an amendment down to amend the Mental Capacity Act 2005—although I noticed that my noble friend Lord Goodman managed to get something in, so I congratulate him on that. That is why it is taking more time to consider aspects of this. I hear a noise—I thought it might have been someone shouting “Order!”, but perhaps it was excitement elsewhere.

I am just conscious that it is without doubt that, in the consideration in the Commons, Professor Sir Chris Whitty—who used to be one of my Permanent Secretaries when I was at the Department of Health and Social Care—suggested that the Mental Capacity Act had a higher test for basically a life or death decision, and then of course changed that evidence. However, I accept that he said, in evidence given orally to the Select Committee in this House, that having something that people are used to using is important. So one of the things that we need to judge is recognising the role of the Royal College of Psychiatrists—admittedly, it is not the Chief Medical Officer—and take its words seriously.

I was somewhat shocked by the words of the noble Baroness, Lady Murphy. I do not know if she ever used the Mental Capacity Act in her time as a professional. I know she is experienced in this in terms of psychiatry, but I was pretty horrified by the words she just used in this Chamber about the witness.

[Lord Bassam of Brighton (Lab)]

It is certainly clear that she used that test continuously as part of her career, actually. While I am on my feet, I wonder whether the noble Baroness thought of reviewing the Mental Capacity Act while she was Secretary of State for Health. Was that something she considered then? That piece of legislation has certainly stood the test of time.

[Baroness Coffey (Con)]

I will respond to that. I do not know the answer about the noble Baroness, Lady Murphy. However, I say to the Committee and to the noble Lord, Lord Bassam, that amendments have been made to the Mental Capacity Act 2005 that have not been enacted by this Government. Therefore, we are not even sure exactly which version of the Mental Capacity Act we will be dealing with in the future. The noble Lord, Lord Bassam, is babbling away, but this happened. Amendments were made in 2023. That was on slightly different matter, but it is something I will come to in Clause 3.

I come back to the attack on Dr Price. Perhaps the noble Baroness could be brave. She has used parliamentary privilege to do that. If she really believed it, she might say those words outside the Chamber and see if she gets a legal letter. I thought it was really poor to attack somebody who had been invited and to try to suggest that, somehow, for such a distinguished royal college, she was manipulating a particular report. That was unfair.

I will make one minor observation about the Select Committee. In my view, it was noticeable how distressed Dr Price started to become during that oral evidence session. I am not a clinician or a psychiatrist; frankly, I am just another woman who could see how distressed she started to become. I also spoke to her outside afterwards. We have to bear in mind that we are used to this bear pit—which is much gentler at this end than at the other end—but that is not true of the others.

I will come back to the discussion and one of the questions I wanted to understand when going through ability versus capacity. We have already heard that things such as depression and mental illness are not a disabler. We already know that having dementia is not a reason to be denied, certainly in the Mental Capacity Act 2005. We know that capacity can fluctuate, and I certainly will not repeat what others have said.

What I have not yet understood is how things such as the power of attorney might work, which can be given over for health reasons. I want to get an understanding of the view of the sponsor and the Government Minister about the application of this, before potentially laying further amendments to discuss this.

We know that the Government do not believe that the Bill is in a fit state. They would not have 16 people working on it and the amount of work that has been going on if they did. By the way, that does not include the Government Legal Department in any way.

I thank the noble Baroness for having introduced this, but there is still quite a lot of debate to be had once we get to Clause 3, if we are allowed to see that it is in scope.

[Lord Harper (Con)]

In case I am not understanding it and it would be helpful for the Minister, is the question my noble friend wants the Minister to answer on lasting of powers of attorney whether it the Government’s understanding that somebody in possession of a lasting power of attorney for health and social care would be able to use that lasting power of attorney to seek an assisted suicide for the person on behalf of whom they hold the lasting power? Is that the question she is asking? I was not entirely certain.

[Baroness Coffey (Con)]

My noble friend has put it more accurately—that is precisely the question I am trying to understand. I am trying to be a legislator rather than somebody who argues in court, but the very fact that somebody can make health decisions on behalf of somebody else is important to consider in this matter, and I am not clear that it is explicit in the Bill—yet—that that power of attorney could not apply. We know that the Mental Capacity Act 2005 does not apply to Section 2 of the Suicide Act 1961. I will not go into a history lesson about the Suicide Act at Clause 1, but at the moment everything seems silent on the use of that lasting power of attorney.

[Lord Wolfson of Tredegar (Con)]

My Lords, this is the first amendment to be introduced by the noble Baroness, Lady Finlay of Llandaff. We all acknowledge her extensive experience and deep knowledge of this issue, as both a doctor and a professor of palliative medicine. Like my noble friend Lord Shinkwin, I expect noble Lords across the House to benefit from the noble Baroness’s advice and guidance as we seek to improve this Bill through Committee.

I have listened carefully to the debate and it seems that there are two related but conceptually separate issues going on. One is a valuable, perhaps somewhat philosophical, debate about the difference between “can” and “able to”; in other words, just because you can take a decision, does it always mean that you are able to take a decision? It is an interesting debate to have.

There is a separate but related issue about how one reflects that or the conclusion one comes to in law. That is really the issue raised by the amendments to Clause 3 in the next group. As both the noble Lord, Lord Pannick, and the noble Baroness, Lady Hollins, pointed out—and as set out in the explanatory note for this amendment—Amendment 2 is linked to Amendment 115 from the noble Baroness, Lady Finlay, which seeks to replace Clause 3 with a new clause. To that extent, the debate we have just had is an hors d’oeuvre before the main course of group 3. Perhaps this is a restaurant that serves its hors d’oeuvres in larger portions than normal.

For reasons that I hope are obvious—I mean no discourtesy to the Committee—I may not be able to stay until the end of group 3, so I hope to take a quick moment now to explain this interrelationship. The proposed new Clause 3 is a considered amendment that challenges the Bill’s reliance on the definition of “capacity” under the Mental Capacity Act. It seeks to make special provision in the Bill for how the definition of lack of capacity is to be dealt with, and it touches on important information and the ability to make decisions. In particular, it builds in information relating to palliative care. I look forward to the Minister’s response to this group and I will read her response to the group of amendments on Clause 3, in due course, and the noble and learned Lord the sponsor’s response to both groups. Although we will debate these two groups separately, they seem to me to be intimately connected.

With some trepidation, I will respond to the point made by the noble Baroness, Lady Hayman. I am conscious of her experience in both this and the other House, which considerably exceeds mine on both counts. However, I touched on this point at Second Reading and, respectfully and certainly from my analysis, there does not appear to be any constitutional reason why this House should not take its time considering the Bill or even, should it wish to, reject it as a non-manifesto Bill that is also a Private Member’s Bill.

For noble Lords who are interested, there are some useful articles on this point from Professor Mark Elliott, who is a professor of public law at the University of Cambridge. I refer to him because of two important features. First, he is a professor of public law at the University of Cambridge. Secondly, when I was a Minister, he did not agree with me on anything so, if we agree on this, it is likely that we are actually right.

In all seriousness, the noble Baroness, Lady Berger, made a point that I made at Second Reading, which is particularly important in the context of this Bill. A number of Members of Parliament said, both in and outside the Chamber, that they voted for the Bill on the express basis that they relied on this House to give it proper scrutiny. If the noble Baroness wants to intervene, of course I will give way.

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[Baroness Coffey (Con)]

I want very briefly to put on record that Professor Sir Chris Whitty is not the Chief Medical Officer for England and Wales, but for England only. I will wait for another time for the answer to the question I asked about power of attorney to be given, ideally by the Minister.

[Lord Falconer of Thoroton (Lab)]

I will answer that one. No, you cannot do it by power of attorney. You have to do it yourself.