Terminally Ill Adults (End of Life) Bill

Baroness Coffey Excerpts

Friday 20th March 2026 Lords Chamber

Moved by

[Baroness Coffey]

165: Clause 5, page 3, line 11, leave out “or Wales”

[Baroness Coffey (Con)]

My Lords, in this group I have tabled 28 amendments and signed another one. Most of them are connected to the fact that I do not believe the Bill should apply to Wales. We had something of a debate on the first day in Committee, but I was conscious at that point that we did not want to spend the entire first day debating Wales and that we would come back to the legal importance of aspects of this Bill in regard to that. I will of course not speak to every single amendment because a lot of them are just on that theme, but it is an important theme.

I am conscious that, since we debated, the Welsh Senedd has voted for the legislative consent Motion. I remind the Committee that at no point was the Welsh Senedd invited to vote on the principle of legislating for assisted dying, because a change in criminal law would not be within its purview. However, in this group, with amendments tabled by other Peers, there is an opportunity for us to consider—

[Lord Falconer of Thoroton (Lab)]

It was asked to vote on the principle of whether this should be dealt with by the Welsh Senedd, because one of the amendments to the Motion for legislative consent was that it believes that

“Wales should have full powers to choose to legislate or not regarding the legality and implementation of assisted dying services, as is the case in Scotland”.

That was beaten by 25 to 13.

[Baroness Coffey (Con)]

The Welsh Senedd’s legislative consent Motion was not about whether it could accept or reject the Bill. People perceived a threat, although I appreciate that this is not what Kim Leadbeater or the noble and learned Lord will have suggested. This perceived threat, explicitly put in a letter by the sponsors of the Bill, was that if the Welsh Senedd rejected the legislative consent Motion, various clauses—particularly Clause 42—would be removed from the Bill, which would effectively remove any involvement of the Welsh Senedd in how the Bill would be put into effect in Wales.

Even then, the Welsh Health Minister voted against that, as did the First Minister of Wales, and they continued to say they felt the Bill was unsafe. I do not want to get into a rehearsal or a repeat of what happened in the Welsh Senedd—but it did vote. Interestingly, the Government have to deal with another issue where the Welsh Senedd voted down a legislative consent Motion on the Crime and Policing Bill, but that is not a debate for today.

Here we are into an important part of the Bill, where the UK Government can override any decisions made by the Welsh Government and the Welsh Senedd. That is particularly singled out in aspects of Clause 42. I have co-signed Amendment 764 tabled by the noble Baroness, Lady Finlay of Llandaff, which seeks to address that by removing certain powers in that regard so that the UK Government cannot determine what happens in Wales. Since the introduction of the Bill a very long time ago, this has evolved into basically a health matter. It is certainly how the Bill’s promoters have tried to shift this. That is why I feel so strongly about it, as I set out on our first day in Committee.

I will turn briefly to some of the amendments we are debating today. Amendment 736 would amend Clause 40, which suggests that guidance “may relate to matters” for Welsh Ministers. Coming from a UK Minister, that is not right. The Welsh Government, working with the Welsh Senedd, should determine that.

The noble Baroness, Lady Smith, has tabled Amendment 844 to effectively shift this to become a decision entirely for the Welsh Senedd. There is certainly merit in considering that, and I am sure she will set that out later. Even further, I strongly support her Amendments 903 and 905, which have been signed by others.

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[Lord Falconer of Thoroton (Lab)]

My Lords—

[Baroness Coffey (Con)]

Let me just finish my sentence, then of course I will come back to the noble and learned Lord. So far, the UK Government have refused to share any correspondence or to say which of these clauses should be devolved or which should come under a legislative consent Motion. That is why it has been rather unsatisfactory.

[Lord Falconer of Thoroton (Lab)]

The noble Baroness is saying it is a breach of the Sewel convention. The Sewel convention is that if you legislate in a different legislature from that which would be normal—the Senedd, in this case—you need the consent of the Senedd. The Senedd gave its consent in the legislative consent Motion, so perhaps the noble Baroness could explain why it is a breach of the Sewel convention.

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[Baroness Coffey (Con)]

It is a breach because I believe a threat was made to Welsh Senedd Members that if they did not vote for the legislative consent Motion, the entire removal of Clause 42 would be put forward in an amendment by the sponsor of the Bill. That is in a letter that was sent by the sponsors of the Bill to the First Minister, then shared with the Senedd Members. I appreciate that the noble and learned Lord may not think it was a threat, but I am suggesting to him that it was perceived as a threat, which then affected the decision of several Senedd Members.

[Lord Falconer of Thoroton (Lab)]

I am totally confused by this speech. The complaint being made by the noble Baroness is that this should be dealt with by Wales. We took the view that if the legislative consent Motion did not go through—that is, the Senedd did not consent to it being dealt with here—it would be dealt with by Wales. The noble Baroness is now complaining that we are complying with the rules of devolution and legislating here, as the Senedd has agreed.

[Baroness Coffey (Con)]

I am conscious that we have probably exchanged views enough. There is a clear breach of the Sewel convention. It is not usual for the UK Parliament to vote on such matters. I do not want to get into further exchanges, but I have spoken to Senedd Members and they believe—I do not want to use an inflammatory word—there was a perceived threat of this being imposed without their say. That is also why, as I repeat, the Health Secretary for Wales and the First Minister of Wales both voted against the legislative consent Motion. That, to me, is extraordinary in itself. I will not go into all the details on that, but it needs to be considered carefully as we continue to debate this group.

As I say, we covered a lot of these issues on day one, so it is not my intention to extend debate. It is useful to switch to other noble Lords who have tabled, in particular, amendments regarding the Government of Wales Act. I am grateful to those Peers who have signed some of my amendments in terms of the shift of power to the Welsh Senedd on this. I beg to move.

[Baroness Smith of Llanfaes (PC)]

My Lords, I shall speak to my Amendments 844, 903 and 905 in this group, but I first turn the Committee’s attention to the LCM debate, as the noble Baroness, Lady Coffey, just did, that took place in the Senedd on 24 February. At the beginning of the debate, Jeremy Miles, the Cabinet Secretary for Health and Social Care, set out to the Senedd:

“I … wish to be clear about what may happen if the Senedd were to withhold consent today. The sponsors of the Bill have confirmed that, in those circumstances, they would seek to remove clause 42 from the Bill. That would mean the law in England and Wales would change to permit assisted dying, but there would be no powers in the Bill for Welsh Ministers to implement assisted dying services in Wales or to oversee or regulate such services”.

That clarification is important for the Committee. Throughout the debate, many MSs stated dissatisfaction with how the Senedd was being treated. I apologise, but I will quote several MSs today because I think it is important that they are heard here. One said:

“We are being asked to vote in the dark”,


and another

“we’re … being asked to sign a blank cheque”.

Another said

“we are … legislating with a blindfold over our eyes … This is no way to treat a Parliament. This is no way to treat a nation”.

The Senedd was put in an impossible situation by this Parliament. A vote against this LCM would result in assisted dying services being available only privately, and a vote in favour at least retains some power for the Senedd to shape such services through the NHS in Wales. That was what the vote was about specifically. I thought this was concisely put—

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[Lord Falconer of Thoroton (Lab)]

That is right.

[Baroness Coffey (Con)]

My Lords, we have covered quite a range of issues. I had intended for this to be about the decision-making process. The noble Lord, Lord Pannick, referred to Groundhog Day; it has not been Groundhog Day as far as I am concerned. On the very first day, there was an opportunity for the Government to set out a bit more. People have talked about how it would have been better if this was a government Bill. Actually, if the Government had answered a lot more questions, and had not blocked freedom of information requests to understand what is going on between the sponsor of the Bill and some of these devolution issues, we could have had more progress.

I was grateful to the noble Baroness, Lady Smith of Llanfaes, and the noble and learned Lord, Lord Thomas of Cwmgiedd, who agreed on the first day that we would not cover every single issue about Wales. This was done very deliberately, so that we could have a proper, detailed debate about the governance structure applying in this case.

I have already set out that I would be inclined to support many of the amendments tabled by the noble Baroness, Lady Smith, to transfer some of that decision-making. As the noble and learned Lord, Lord Thomas, pointed out, on the issue of smacking, that has already happened. I did not think that it would be that different or that radical for the issue of assisted dying also to be considered a competence to be passed across to the Welsh Senedd and Welsh Government.

The suggestion has been that I am just trying to disrupt this happening in Wales. It is more about the governance, and that is why we have returned to it at this point. I remind people that, on day one, there was an opportunity for the Government to set out matters and also to consider some of the cross-border issues that were referred to.

I also point out to the Committee that it was decided last week that we would finish the debate early. Nobody had spoken to me about moving the group to today. I feel that we could have covered quite a lot of the issues before 6 pm last week, but that was a decision made by the Government Front Bench without consultation. That is why we have ended up where we are and probably the debate has been a bit longer. However, this is still, frankly, an unsettled issue, an uncomfortable issue. I still strongly support that we should consider transferring this to the Welsh Senedd for the future. With that, I beg leave to withdraw my amendment.

Amendment 165 withdrawn.

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I look forward to a very interesting debate on this group of amendments. I beg to move.

[Baroness Coffey (Con)]

My Lords, I recognise that the noble and learned Lord, Lord Falconer of Thoroton, has tabled Amendment 548A, which completely leaves out Clause 22. It could be useful to hear from him early in this group, recognising that he has not answered questions on advocates in the past because of the amendment he has tabled.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I have tabled Amendments 540B and 544A in this group. My intention with these amendments is to probe how we have ended up with the list of eligibility criteria for qualifying for an independent advocate contained in Clause 22(4). These provide that a person may qualify for an independent advocate if they have a mental disorder, including a learning disability, if they are autistic or have a substantial difficulty in understanding or communicating information. Clearly, there are obvious difficulties with an approach which attempts to list certain conditions but not others. Why, for example, is autism explicitly mentioned in the Bill when Down syndrome is not?

I see that the noble and learned Lord, the sponsor, has adjusted his approach to the eligibility criteria in his new Amendment 548A on the subject, presumably to avoid this problem and any unnecessary duplication. The criteria in that amendment centres much more on the “substantial difficulty” test extracted from the Care Act 2014. It would be helpful for the noble and learned Lord, the sponsor, to set out whether he anticipates that this new test will provide for a wider range of people to access an independent advocate. It may also be helpful and useful to get the Minister’s assessment on the same point, and on how that may affect the questions of resourcing and costing set out in the impact assessment. Currently, the impact assessment suggests that 2.5% of people may be eligible for an independent advocate. This figure has been arrived at by

“Estimating the proportion of people with a learning disability, mental disorder, and/or autism”,


though it admits that doing so is “complex”.

Statutory guidance on the use of the same “substantial difficulty” test under the Care Act 2014 seems to suggest that the net could be much wider than just those groups. It states that

“a person who is near the end of their life and appears disengaged from involvement and decision-making”

may be eligible for an independent advocate. That seems to encompass many more people than under this assisted suicide Bill. If the effects of terminal illnesses—of which we have heard a wide range over the last number of weeks, such as depression and fluctuating capacity—are likely to make us eligible for an independent advocate, it seems that the Government’s 2.5% figure is far of the mark. Equally, if I am wrong and the list of people who can access independent advocate support is narrowly defined then this would surely give rise to a human rights challenge under Article 14 of the European Convention on Human Rights, against non-discrimination. I therefore ask the Minister: how have the Government satisfied themselves that no one else will need independent advocate support to engage the provisions of the Bill?

Ultimately, for these reasons and for the ease of administration, we are likely to end up in a position where every applicant is treated as eligible for independent advocate support. After all, anyone with six months to live is deemed to have a disability under the definition in the Equality Act 2010. Given that this is where we could end up, it would be helpful if the Minister could set out exactly what the implications would be, including the resourcing challenges for already overstretched advocacy services. Is the Minister satisfied with the sponsor’s apparent solution to the costing and resourcing problem, which is to make the new advocacy role in Amendment 548A one that people have to opt in to, so that it is no longer mandatory and easily waivable?

I have some sympathy with the position of Dr Sarah Hughes, chief executive of the mental health charity Mind, who told this House’s Select Committee on the Bill:

“I think we would also say that individuals need advocates. While there is a panel and there will be various assessments, the person really does need an independent advocate at every point to be able to understand the information that they are being given, the conversations that they are having and so on”.


She is right to have this concern. We are not talking about a trivial decision, such as buying a cup of coffee; we are talking about a life and death decision, and one that is often dressed up in euphemistic language that can be misleading even to those of us who do not have additional vulnerabilities.

It is vital that people truly understand the nature, gravity and risks of any decision on this matter, but I am seriously concerned that, in practice, that is not where we will end up, particularly if we need enough independent advocates for each applicant. Where will these advocates come from? The Government’s impact assessment hopes that there will be social workers employed by the NHS, but job adverts for independent advocacy often have no training, qualification or experience requirement.

The 2023 review of advocacy found serious deficits in advocacy skill sets. It found that there was

“a lack of basic understanding of autism and learning disabilities”

and

“a lack of practical communication skills, particularly when working with a person who uses non-verbal or augmented communication”.

The same review found:

“Only one third of family carers described the advocate supporting their loved one as ‘skilled and experienced’”.


What assurance do we have that things will be different here? Such training is crucial, particularly considering that we are talking about highly susceptible individuals.

Again, I refer to an example from the evidence presented to the Select Committee. Ken Ross OBE, founding officer of the National Down Syndrome Policy Group, shared his worry at the lack of specific training on Down syndrome for health and education professions. He pointed out that the

“very complex and unique speech and communication profile”

that people with Down syndrome can have makes them “highly suggestible”, particularly to those perceived to be in a “position of authority”. Without training, how would an independent advocate appreciate this and mitigate for it?

Further, how will we ensure that resourcing independent advocates for this purpose does not draw away from the much-needed functions under the Care Act, the Mental Capacity Act or the Mental Health Act? Data suggests that, in some local authorities, fewer than 15% of people get an advocate when they should get one. Clearly, the system is already broken. Are we going to risk breaking it further and take away the little support that is designed to help people to live?

Finally, I am concerned at the risk that advocates become not advocates for the patient but advocates for assisted suicide. No doubt the noble and learned Lord, Lord Falconer, will tell us that this is not at all what happens with independent advocates, but I remind him that in connection to other independent advocacy services, NICE has said that

“non-compliance with legal duties is common”.

In other Acts that establish independent advocacy services, their specific duties and functions are set out in statute—something the sponsor has not done either in the Bill before us or in his new Amendment 548A. Without the detail—such as whether an independent advocate has a duty to help the patient understand non-fatal options—we cannot be sure exactly of the direction that such advocacy would take. Therefore, I believe that my amendments are worthy of consideration.

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[Baroness Coffey (Con)]

My Lords, I am grateful to the noble and learned Lord for setting out his new Amendments 548A and 549A, recognising and being positive about the feedback on trying to put something somewhat more detailed in the Bill. I tabled Amendment 549B because aspects of Amendment 549A were starting to worry me. I appreciate that I might be in a different place to many noble Lords on this issue, but I fear that we might start to overcomplicate what is needed in the role of an independent advocate.

One reason I put my amendment in is that, if you can do more than 10 a year, I am somewhat worried that this will become almost a new industry, with people undertaking roles solely on this. I am concerned about training and regulation, and I am conscious that the whole purpose of this was to address people’s concerns. The conditions set out the reasons why somebody may have an independent advocate, which happens in general life but was intended to be somewhat of a safeguard for a person applying and going to see the doctor face to face—although we have previously discussed issues to do with being face to face. But I fear that we might be somewhat complicating what the role of the independent advocate will start to become. So my amendment to Amendment 549A, Amendment 549B, seeks to get a sense of what this role really is and who will fulfil it.

Amendment 549C is pretty straightforward. I do not think there was anything ill intentioned here, but the Table Office said that it did not catch the fact that, when one clause that had a provision for regulations to undergo a resolution in each House of Parliament was removed, this simply got missed out in the new amendment. I am sure that the noble and learned Lord will want to make sure that any regulations are considered by Parliament during any future legislation.

[Lord Blencathra (Con)]

My Lords, I had an amendment in this group but I withdrew it when I saw that other noble Lords had tabled an amendment that was superior to mine. So I rise to support some of their amendments and to express my concern about the new clauses proposed by the noble and learned Lord, Lord Falconer. I agree with my noble friend Lord Gove that, with a sense of decency and integrity, the noble and learned Lord has sought to bring forward a new clause that is superior to the old one. Nevertheless, I feel it falls short of what is required to protect the most vulnerable people who need assisted dying.

The new clause presents the independent advocate as a safeguard: a final protective layer for those who may be isolated, frail or at risk of coercion. But, when one examines the detail and listens to the evidence from those who work daily with vulnerable adults, it becomes clear that these clauses are a bit inadequate and underpowered, and I feel that they are structurally incapable of doing the job that Parliament has been told they will do.

The first fundamental question concerns the advocate envisaged in these clauses not being genuinely independent. The Bill allows the advocate to be appointed by the very system that is processing the assisted dying application. That is not independence; it is administrative proximity dressed up as protection. Those who work in safeguarding repeatedly warn that advocates must be structurally separate from the decision-making machinery, yet these clauses allow the advocate to be embedded within it. As one commentator put it, this risks creating a supportive facilitator, not a safeguard. Another warned that the advocate would become a procedural escort through the system, rather than a defender of the person’s rights. If the advocate’s role is to challenge, to probe, to question and to stand up for the person when others may be steering them, they cannot be beholden to the very bodies they may need to challenge.

The second problem is that the advocate is given no meaningful powers. They cannot pause the process, require further assessment or insist on a specialist review. They cannot demand that coercion concerns be investigated. They cannot even require that their own concerns be acted on. An advocate without powers is a spectator and not a safeguard. The role has been described as a box-ticking presence—someone who can be noted in the file but whose objections can be politely ignored. If the advocate cannot intervene when something is wrong, the safeguard is a fiction. It is a comfort blanket for legislators, not a protection for the vulnerable.

The third flaw is timing. Under the clauses tabled by the noble and learned Lord, Lord Falconer, the advocate appears after the key clinical assessments have been completed—after the capacity determination, after the voluntariness assessment and after the eligibility decision. By the time the advocate arrives, the train has already left the station. How can it be a safeguard when it is applied at the end of the process, when the opportunity to identify coercion or impaired capacity has largely passed? This is a final courtesy call, not a protective intervention. If the advocate is to protect the vulnerable, they must be involved before the decisive assessments, not after them.

There is another weakness: the advocate is not even required to meet the person in person. They may rely on paperwork, remote contact or second-hand information. How can one detect coercion, fear, confusion, or subtle pressure through a file note? How can they test whether the person is speaking freely if they never see them face to face? One safeguarding specialist put it starkly: “If you do not meet the person, you are not an advocate, you are merely a reviewer of documents”. This is not a safeguard. It is an administrative gesture.

Also, the advocate may not be trained for the complexity of assisted dying, which raises questions about competence. Advocates in other statutory regimes, such as the Mental Capacity Act or the Care Act, receive training for those specific frameworks. Yet these clauses from the noble and learned Lord, Lord Falconer, contain no requirement for specialist training, accreditation or expertise. Therefore, we could end up with advocates who are well-meaning but completely out of their depth. As another commentator said, “This is a role that requires the highest level of safeguarding skill, not a generic advocate with a generic toolkit”. If the advocate is to stand between a vulnerable person and an irreversible act, they must be equipped for that task.

Finally, there is a danger that advocates can be used unintentionally to legitimise decisions made under systemic pressure. We all know the pressures: care home bed shortages; hospital discharge targets; workforce gaps; social care rationing; family exhaustion; and the subtle but real pressure not to be a burden on people. One expert warned that an advocate without power risks becoming “a witness to system pressure, not a counterweight to it”. If the advocate cannot challenge the system, the system will use the advocate to validate its decisions. That is the opposite of safeguarding.

I pay tribute to the noble and learned Lord, Lord Falconer. His clauses are well-intentioned. He has sought to deliver on what the Delegated Powers Committee said but, as I have said, the clauses are structurally inadequate. They create the appearance of protection without the substance. They offer the language of safeguarding without the mechanics, thus giving Parliament false reassurance while leaving vulnerable people exposed. If we are to legislate for assisted dying —an irreversible act, taken by people who may be frail, frightened, isolated or under pressure—the safeguards must be real, not rhetorical.