Death of a Member: Lord Wallace of Tankerness
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, I much regret to inform the House of the death of the noble and learned Lord, Lord Wallace of Tankerness, on Thursday 29 January. On behalf of the House, I extend our condolences to the noble and learned Lord’s family and friends.
Retirement of a Member: Lord Offord of Garvel
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, I should like to notify the House of the retirement, with effect from today, of the noble Lord, Lord Offord of Garvel, pursuant to Section 1 of the House of Lords Reform Act 2014. On behalf of the House, I should like to thank the noble Lord for his valued service to the House.
Secure 16 to 19 Academies Bill
(1 day, 8 hours ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Lord Bach (Lab)
My Lords, I intend to say only a few words on the Motion to thank those who have been closely involved with this Bill as it passed through Parliament. I start with my honourable friend Emma Foody, Member of Parliament for Cramlington and Killingworth, who carefully guided this Bill through the other place. I also thank my noble friend Lady Levitt, the Minister, for her assistance, and of course her officials and others at the Ministry of Justice who have made this task easier. I also thank all noble Lords who spoke at Second Reading of the Bill in this House, and the Front Benches of all parties who have given the Bill the support it needed to become law.
In short, this Bill will allow us to continue to transform how we detain children and young people in custody by delivering education and intensive support in secure schools. The Bill, and the establishment of secure schools within the custodial estate, has had support around the House, and represents, I believe, a pivotal step in reducing offending for some of our most vulnerable children and young people. I am delighted, as I hope the House is, that it will soon be on the statute book. I beg to move.
The Earl of Effingham (Con)
My Lords, I thank the noble Lord, Lord Bach, for his efforts to take this Bill through your Lordships’ House and for his past work on the Bach commission, which strove to improve the legal aid situation within the UK justice system. As I outlined at Second Reading, secure 16 to 19 academies were conceptualised in Charlie Taylor’s review of the youth justice system, published in 2016, then agreed on and adopted by His Majesty’s loyal Opposition when we were in government. They will now be made more practicable and effective as a result of this Bill.
Secure schools are an idea founded on the principle of rehabilitative justice for our youth with a vision of improving behaviour, mental health and educational attainment. The nature of this aim means that every offender who enters a secure academy will have different requirements, and the academies must therefore be both flexible and adaptable. The Bill reduces expenditure funding for the academies from a seven-year to a two-year horizon. It removes the requirement that the Secretary of State must take into account local schools before accepting the academy, as pupil intake will largely not, if at all, overlap. Finally, it requires a consultation with local partners instead of local schools, bringing process in line with purpose.
It is in everyone’s interests that secure academies work. Young offenders will be given a second chance and, with a fair wind, they will join the workforce and have every chance to succeed. That is why, when in government, we supported the proposals and why we continue to do so now. We need more secure academies and this Bill will help deliver that goal.
The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)
My Lords, I am very pleased to speak at the Third Reading of this Private Member’s Bill. I, too, start with thanks—to my noble friend Lord Bach for steering this small but important Bill through the House and to Emma Foody MP for guiding it through the other place. The secure school model has been developed in accordance with the best available evidence for what works in addressing the underlying causes of youth offending, offering children small and homely environments with healthcare and education at their heart. Importantly, secure schools will allow children in custody to gain skills and qualifications, supporting them to return to the community and lead successful and crime-free lives. In turn, this will protect the public from these children reoffending in the future. The Bill will help us achieve this aim, and I am pleased to see the support that it has had from across your Lordships’ House.
Lord Bach (Lab)
My Lords, I thank the noble Earl for what he said and, of course, my noble friend the Minister. I do not need to say anything more.
Arrangement of Business
Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)
My Lords, I will make my usual statement before we start proceedings today. I will keep it short to enable the debate to start as soon as possible. I thank noble Lords again for their kind words and constructive discussions during the past week. I continue to do my best to strive to find ways to assist the House in its scrutiny, balancing some difficult and often opposing positions.
As I set out last week, following the House’s clear indication that it wants more time to consider the Bill, I will seek to adjourn the House not at 3 pm but at around 6 pm. Noble Lords will not be surprised to hear me say that, ultimately, it remains in the hands of the House, and noble Lords may seek to adjourn earlier by moving the Motion that the House be resumed. As we did last week, we will adjourn the Committee at a convenient point around 1 pm for a 40-minute break, to give those participating a chance to eat.
I hope that noble Lords will make more progress than on previous days. I trust that they will continue to debate with respect for each other’s and different views, remembering that opposing views are just as sincerely held as theirs. We do not take interventions on interventions, and all interventions are opportunities to ask a short question, not to give another speech; I have asked the Whips to intervene if that it happens.
Finally, on behalf of the whole House, I place on record our thanks to the staff of the House for their usual courtesy and professionalism and the excellent service that they provide to Members, not only today but every day. With that, I think we should move to the substance of the Bill and continue our debates.
Lord Ahmad of Wimbledon (Con)
My Lords, I thank the Chief Whip for the time he gave me yesterday. I would like to make three very brief points. There has been much speculation and discussion outside your Lordships’ Chamber on the procedure, principles and workings of this House.
On procedure, this week there has regrettably been much discussion about the use of the Parliament Act when it comes to the workings of the Bill. I ask the Chief Whip, who I know holds the House in great esteem and fights its cause, to clarify the fact that, in the case of the Private Member’s Bill before us, it would be unprecedented for the Parliament Act to be used. As all noble Lords know, the last time it was utilised was in 2004, with what became the Hunting Act, which was a government Bill. So we would be setting a very different precedent if that was to happen.
My second point is on procedure. If the Bill did not pass and the Parliament Act was invoked, it would not be for the Bill’s supporters to make that call. My understanding is that that would be a matter for Mr Speaker, after careful consideration. Equally, my reading of the two Acts is that it is very clear that the House of Lords would still have a role. Let us not forget that, if this was presented again in the next Session, there would still be the small issue of the ballot for Private Members’ Bills in the other place. I again ask the Chief Whip to clarify the issues of procedure to allow for effective debate in your Lordships’ House.
My third point is about the House of Lords itself: who and what we are. As many noble Lords will know, I was on the receiving end for a very long time, with 12 years in Government across communities, the Home Office, transport and the Foreign Office, dealing with the SAMLA legislation and discussions around the EU and Brexit. Everything was done in a reasoned way, as the Chief Whip has said, and we listened. I say that to the proposer of this Bill, the noble and learned Lord, whom I respect greatly. As he and I joked recently, I have certainly played my part in listening during Committee—I have been here for a large part of it—but I am yet to intervene and I warned the noble and learned Lord that that does not mean that I will not.
That said, I recall, I hope correctly, something that the noble Lord, Lord Carlile, said about the value of your Lordships’ House. I pay tribute to the noble Baronesses, Lady Finlay and Lady Grey-Thompson, among others. Having listened to the debates, most, if not many, of the amendments being proposed are to ensure that, if this legislation became law—I respect that, as the Minister and my noble friends on the Front Bench have said repeatedly, this is a matter on which both His Majesty’s Government and His Majesty’s Official Opposition are neutral—the duty of care that the Government have for the protection and security of our citizens would be paramount. Therefore, I invoke the good offices of the Chief Whip and of the Lord Privy Seal and urge them to continue to protect the traditions, conventions and procedures of your Lordships’ House in any discussions that take place.
Lord Pannick (CB)
I have two questions. Will the Chief Whip confirm that whether the Parliament Act is invoked is entirely a matter for the House of Commons? Does he agree that the reason that the Parliament Act is being discussed at the moment is because this is day 8 of Committee and we are still on Clause 1?
Lord Deben (Con)
I was not going to intervene, but the reason that we are here is, to be frank, that we have received no answers on any of the points raised by the proposers of the Bill. We have no idea what amendments might be laid. If the proposers of the Bill were to show themselves much more willing to listen to the problems we have, we might well be able to move faster. But I am a bit tired of the general campaign that suggests that this House, in doing its job, is somehow or other behaving badly.
Lord Blunkett (Lab)
Before my noble friend responds, I just want to say that when I have not been able to sit in the House in Committee, I have followed the debate. Does my noble friend agree that it would be really helpful if people debated the Bill that is before us and not one that is being made up from outside this House?
Lord Kennedy of Southwark (Lab Co-op)
First, I love the House very much and I have been here for 16 years. I have been absolutely privileged to be here every day, both in opposition and in government. We all come here every day to work with the best intentions and in the best interests of the House. The House, over many years, has always assisted the other place in improving legislation, scrutinising it and making better Bills. We have all—in opposition or in government—done that. We should get that on the record first of all.
I thank the noble Lord for his question, and other noble Lords, particularly for coming to see me yesterday. I have had a chance to go away and look at some of this stuff, and I have a statement to read out to colleagues. If they let me get to the end of it, I hope that I may have found a way to assist colleagues.
I am not an expert on the Parliament Act 1949. Noble Lords will probably not be surprised if I say that it is complicated. I cannot and will not give a view on whether the Act can be applied to this Bill or any other Bill. If noble Lords are interested in the detail, I can refer them to paragraphs 30.49 to 30.56 of Erskine May, which sets a very helpful background, as does the note from the House of Commons Library published in February 2016.
Ultimately, decisions on the application of the Act are for the House of Commons. Erskine May makes it clear in paragraph 30.55 that any final decision must be endorsed by Mr Speaker. I do not want to misadvise the House on a complex procedure; to avoid that and to assist all noble Lords, my office has spoken to the Clerk Assistant, soon to be our new Clerk of the Parliaments, and I am pleased to announce to the House that the clerks will arrange a factual briefing on the details of the Parliament Act and its general application. The briefing will not be a discussion about this Bill or act as a forum to ask “what if”; it will tell us how the Parliament Act works and how it can be applied to legislation.
However, I can confirm for the record that the Parliament Act 1911, as amended by the Parliament Act 1949, applies to all public Bills—other than money Bills and Bills extending the maximum duration of a Parliament—so it can be applied to Private Members’ Bills. The Act provides that any Bill introduced originally in the House of Commons and passed by the Commons in two successive Sessions with at least one year between the first Commons Second Reading and the Commons Third Reading in the second Session can be presented for Royal Assent to the Commons. Many of the conditions underlying this are open for interpretation in what constitutes rejection by the House of Lords.
The Act has not been applied to a Private Member’s Bill to date; it has, however, been used for several Acts of Parliament. The 1911 Act was used for the Government of Ireland Act 1914, the Welsh Church Act 1914 and, interestingly, the Parliament Act 1949. Since 1949, it has been used for the War Crimes Act 1991, the European Parliamentary Elections Act 1999, the Sexual Offences (Amendment) Act 2000 and the Hunting Act 2004.
That is where we are. I will arrange for a proper factual brief so noble Lords will understand how the Act operates, and I will probably attend the briefing myself. To be clear, however, it is a matter for the other place and for Mr Speaker. It has never been used for a Private Member’s Bill to date.
Lord Moore of Etchingham (Non-Afl)
My Lords, I am very grateful to the Chief Whip for his, as always, very kind and helpful explanations. I have a further point to raise, because I think it affects the proceedings of your Lordships’ House as we go on from today.
Of course, I would defend to the death the right of the noble and learned Lord, Lord Falconer, to appear on the “Today” programme. I think what he said there, however, made it very difficult for the proceedings that are about to ensue, because he threatened us with the Parliament Act—though I do not think that is in his power—and said that what was going on in all these proceedings was just a filibuster. Not only is that quite untrue, as noble Lords will have witnessed through these many hours of detailed debate, which keep very carefully to specific points, but it seems to me that what the noble and learned Lord said on the “Today” programme prejudices what we are about to do in the next six or seven days. If he is saying that it is all a charade, what are his answers going to be in the coming debates? He has repeatedly given very helpful and full answers as we have had these debates, and he has never mentioned there is any problem here. He said at Second Reading that this House will do what we do best, which is to scrutinise. That is what we are doing, yet he said that it is all nonsense. What are we to make of the answers which he will now give over the intervening days to the many amendments that are put?
Lord McLoughlin (Con)
My Lords, the Government Chief Whip in his opening statement said that he is not an expert on the Parliament Act; I think he is soon going to become one. Perhaps I may ask him a question to ensure that the briefing covers it, if it does not already. In the event that this Bill does not make progress in this House and therefore is reintroduced to the Commons next year, for the Parliament Act to be used, would it have to be introduced by a private Member or could the Government introduce it, allowing the Parliament Act then to take effect, without it being as a result of the Private Members’ ballot in the House of Commons?
Baroness Fox of Buckley (Non-Afl)
My Lords, very briefly, I would like to put on record my thanks to the Chief Whip for being so helpful to all sides in this whole procedure. Following on from the point from the noble Lord, Lord Moore, in the various public events that I have done in the last week, I have been told by members of the public, “Oh, we see that the Parliament Act is going to be invoked for the Bill, so what’s the point?”. Some of them have been supporters of the Bill, while some have been worried about it, but everybody seems to think that that is happening. It has been done by media briefings, and it is quite demoralising to be in a situation where you are told that you are, in effect, wasting your time.
In answer to the noble Lord, Lord Blunkett, in preparing for today and worrying about getting the wording right on the amendments I want to speak on, I have read this Bill a number of times—which is an understatement—and try to take seriously the role that we are given in terms of scrutiny. Where I have not known anything about a matter, I have just not said anything; I have, as has been suggested, listened. However, this is not about an imagined Bill; it is about the Bill we have before us and gaps in it that some of us are worried about: what is not said and what will happen if those gaps are not filled.
It is very important, whatever side we are on, to treat one another as though we are acting in good faith, because we are. What is discrediting to the House is a media briefing suggesting that there is some cynical plot of outside forces and that, somehow, we are all influenced by hidden religious views—I think that was one phrase used. This Bill requires us to be deeply moral and ethical, whatever side we are on, because we are talking about life and death issues, a change in the constitution of the NHS and so on. However, we have to assume that we are acting in good faith, because we are acting in good faith. It is nerve-wracking enough taking on an issue like this without being told by the media, as I was last night on “Newsnight” in the gap, “Oh well, you lot are just being manipulated by forces”.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, can I just finish? I think this is supposed to be questions to me, not debating the Bill. If there are any questions, I will do my best to answer them.
The Lord Bishop of Southwark
My Lords, I too wish to speak in good faith. That is what all our Committee consideration has been about, in almost every speech I have heard and listened to—and I have made an effort to attend a good number of sittings. I am very grateful to the Government Chief Whip for what he has said. I am also very grateful to the noble and learned Lord, Lord Falconer, for saying on the “Today” programme that he now anticipates that the Bill will fall. So my question is: if and when it does, please will the need for a royal commission on dying well be factored into consideration?
Baroness Jay of Paddington (Lab)
My Lords, I think this is relevant to the points that have been made. If we did consider this Bill again under the Parliament Act, the amendments that this House had passed in this Session would have a far greater chance of surviving than those debated in subsequent proceedings. Therefore, it is important that those who wish to amend the Bill do so now—and, I would suggest, as speedily as possible.
Lord Carlile of Berriew (CB)
My Lords, will the Chief Whip protect the House from what I see as double standards? Yesterday we received the in terrorem declaration from the noble and learned Lord the sponsor that he would do something that he has no power to do: invoke the Parliament Act. At the same time, in credit to the noble and learned Lord, he wrote a letter, running into four pages, in which, after seven weeks in Committee, he accepted a large number of the propositions made in your Lordships’ House. Surely that demonstrates that Committee in this House matters, is useful and is not evidence for the use of the Parliament Act.
Baroness Falkner of Margravine (CB)
My Lords, I have a very brief question about the Chief Whip’s exhortation to us this morning that, as usual, we should remain brief. In the noble and learned Lord’s interview on the “Today” programme yesterday, he repeatedly said that a few Members of this House were filibustering and delaying the passage of the Bill. Do noble Lords accept that, while many people across this House would wish to intervene on every amendment, we hold back to allow those who are more expert than we are to articulate our concerns in order not to delay the passage of the Bill? It is our self-restraint that has made us arrive at where we are today.
Baroness Butler-Sloss (CB)
Can I just add this? I have sat through every day in Committee. Last Friday, I did not say a single word.
Lord Blencathra (Con)
My Lords, following the point made by the noble Lord, Lord Carlile, we seem to be in the extraordinary position where the noble and learned Lord, Lord Falconer, has now brought forward a series of large new clauses and amendments. On the one hand, he has admitted that the Bill is fundamentally flawed, yet, on the other hand, he is threatening to drive it through via the Parliament Act. Doing so would mean driving through a Bill that he now admits is fundamentally flawed and needs amendments. Am I seeing something illogical there?
Baroness Young of Old Scone (Lab)
My Lords, I will make one point on behalf of silent Back-Benchers across the House. If we are not actively speaking to amendments, the only opportunity to express a view about the elements of the Bill will be when we get to vote. On the current progress, we are never going to get to that point. Personally, I feel very disenfranchised by that. I wonder whether there is a way we can get to a point where the House as a whole—every individual one of us—can express a view, in order for us not to be disenfranchised.
Baroness Berridge (Con)
I am sad to add to the list of requests to the Chief Whip. I was saddened to hear the allegation on the “Today” programme that those opposing the Bill are just a random group of religiously motivated people. It is not how I have ever been treated as a Christian in this House.
That came on the back of questioning, covered by parliamentary privilege, of the representative of the British Association of Social Workers. The representative was chosen by the professional body to come to us. He faced questioning from one of the members of our Select Committee, who basically said to him— I summarise—“Do you have a right to put your views on others, as a vicar?” In any other forum, that would have been a breach of the Equality Act, had there not been parliamentary privilege. Can the Chief Whip look at the Code of Conduct to see whether these lazy allegations—that, somehow, religiously motivated people might also just be ignorant—should not be made on the “Today” programme or in the questioning of witnesses in a Select Committee of your Lordships’ House?
Baroness Coffey (Con)
My Lords, I suggest to the Chief Whip that, in addition to the clerks’ seminar, noble Lords might want to speak to the noble Lord, Lord Spellar. His Private Member’s Bill did not proceed in this House, so he used the Parliament Act, or started the process that would trigger the Parliament Act if necessary. Therefore, I think he can give everybody some practical experience, alongside the theoretical insight from our good clerks.
Lord Kennedy of Southwark (Lab Co-op)
First, if I cannot cover all the points, my door is open at all times. Please come and see me. I genuinely want to be helpful to all Members of the House.
The noble Baroness, Lady Coffey, gave us some very good advice. I first met my noble friend Lord Spellar when I was 16; he has been a friend of mine since then. He is a thoroughly good noble Lord, and I always listen to him very carefully.
I will say a few things in response to Members from across the House. First, a royal commission is not for me to discuss; that would be a matter for the Government to look at.
Protecting the House’s procedures is obviously one of my roles, and I try to do that as best as I can. I try to defend the House and enable all Members to have their say. We are, of course, self-regulating, and we all treasure our self-regulating status. But to be self-regulating, we have to show some self-regulation. We have to be mindful of that, because the alternative is that we end up with House of Commons-type procedures, which no one would want to see. When we are speaking, we have to treasure our self-regulating status and ensure that it carries on.
The Government have no intention of bringing back this Private Member’s Bill. It will remain a PMB, and the Government have no intention of bringing it back in the next Session. I am having enough problems getting the Government’s programme through at the moment, let alone trying to deal with this Bill, so I promise noble Lords that it will not come back as a government Bill. This is why I do not want to get into a lot of what ifs. If the Bill falls, it may come back through the House of Commons; it may get through and then the Parliament Act may be applied—but that is a matter for the other House. It is not for me or for any other Member of this House to determine what the other House or Mr Speaker do. That will be a matter for them—if it happens at all. That is all I can say on that.
I did not listen to my noble and learned friend on the “Today” programme. I am sorry; I usually listen to it, but I missed that one. I must listen to it on catch-up to hear what was said, because it has clearly had a lot of bearing on what Members have said today. A lot of things get talked about in the media; there is a lot of speculation and pages have been written in newspapers about this. At the end of the day, this House will decide what it does with this Bill and no one else will decide that—it is up to this House. I think we should make more progress.
As I said earlier, if the Parliament Act were to be applied, many conditions would be applied to make that happen. I suspect that they would look at how the House of Lords has dealt with the Bill—but that is a matter for the other place, not for any Member here. I think I have covered most issues, but please come and see me if not.
Baroness Berger (Lab)
I am listening very carefully. I am asking for a point of clarification from my noble friend, whom I have been listening to very carefully; obviously, we listen to his advice and guidance. My noble friend has said twice now that we should seek to make more progress. We have had other Members in this conversation reflect on the fact that we are only at Clause 1. Behind that are the 295 amendments that we have considered over the past seven Fridays, which equates to around seven and half minutes per amendment. I seek my noble friend’s guidance: how many minutes should we seek to cover for each amendment, on the basis that he would like us to make more progress?
Lord Kennedy of Southwark (Lab Co-op)
I cannot do that. What I can say to my noble friend is that, in my 16 years in the House, I have found that some groups take longer than others and some get dealt with very quickly. I think we all need to use our best endeavours to make some more progress. We cannot set minutes per group; it does not work like that. Sometimes, I have sat here, and a group has been dealt with very quickly in two or three minutes; other times, I have sat here for three or four hours. I just think that we should all try to make more progress. If we have sat for four, five, six or seven hours and done only two or three groups, that is, in my opinion, quite slow, and we should look to do more than that. I hope that that helps my noble friend.
Baroness O’Loan (CB)
My Lords, first, some of those groups have had nearly 100 amendments in them, which is quite a lot. Secondly, in this week when we remember the Holocaust, your Lordships’ House—which, in making laws for the whole country, is required to respect people’s rights, including their right to freedom of religion—is compelling us to sit until 6 pm.
Our Jewish Members are unable to do so, and I have seen them very quietly leaving Friday after Friday. Members of the Muslim community are also adversely affected by the sitting arrangements, and those who have a disability and who cannot attend because of the current arrangements are also prejudiced against. We do not do ourselves a service when we discriminate on grounds of religion and disability.
Lord Kennedy of Southwark (Lab Co-op)
As the noble Baroness knows, this issue has been raised over a number of weeks now, and I have met several noble Lords to discuss it. As I have said before, it is up to any noble Lord to move at any time that the House do now resume if they wish to do so. I said that I would not come back until 6 pm, but the point is that we set a target every day for Members to get to. If we get to the target, we can go home. If we get to it much earlier, we can leave earlier. The 6 pm time is a maximum—we do not have to go until 6 pm. We could get to our target and go home much earlier if we wanted to. In my discussions with colleagues, I have tried to put in place procedures to help people who need to leave for reasons such as disability or religion.
Baroness Blackstone (Lab)
My Lords, my noble friend the Chief Whip has rightly pointed to the lack of progress we are making on this Bill. Part of the problem is not how much time we spend on each amendment, but the number of amendments that have been put down, which is unprecedented. I hope that those who are opposed to the Bill will accept that many of us who are in favour of it understand completely the good faith of those who are querying some aspects of it. What we are worried about is that we are not going to be able properly to consider the Bill because of the time being taken on many amendments—quite often rather absurd ones, and some of which completely repeat what has already been brought forward.
Lastly, in defence of my noble and learned friend the Bill’s sponsor, he has responded in these debates with courtesy and consideration and has taken seriously what has been said. It is very unfair to criticise him. He has also responded in a letter, as has already been stated, setting out which amendments he intends to take further and come up with a response to on Report.
Lord Harper (Con)
My Lords, responding directly to that point, it is indeed true that the noble and learned Lord, Lord Falconer, wrote to some members yesterday. Sadly, I did not receive his letter directly from him, but it was forwarded to me. Part of the problem here, directly relating to the noble Baroness’s question, is that the Committees of this House reported some months ago—the Delegated Powers Committee, for example, reported in September. If this was a Government Bill, the Minister would have been expected to set out a thorough, detailed response to all these points before we started Committee stage. We received a letter only yesterday from the noble and learned Lord, setting out his points, and in most cases, he said that the amendments would follow later. Had that happened earlier, many amendments would not have needed tabling. If the noble Baroness is looking for the reason for the delay, it is not just on one side of the House.
Lord Kennedy of Southwark (Lab Co-op)
Briefly—we have now been discussing this for 30 minutes, so maybe we can get on to the Bill shortly—this is not a Government Bill and it is not going to become one. My noble and learned friend always deals courteously with the House and has great stamina, staying here to deal with all these matters. There are an unprecedented number of amendments before the Committee, but if we all work together, we can make more progress on the Bill, and that is what we should be seeking to do. All the amendments have been put down in good faith, and we should accept that, deal seriously with the issues and work on that basis.
I do not believe that anyone is acting in bad faith here, and I would never suggest that. However, we need to work together to make more progress. We have had quite a number of days in Committee now, and not much progress has been made. If this were a Government Bill, I would be very agitated that we are making so little progress. However, I accept that it is not a Government Bill, and it will not become one. However, having now had nearly 32 minutes on questions, we need to move on to the substance and try to make more progress.
Terminally Ill Adults (End of Life) Bill
(1 day, 8 hours ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Baroness Grey-Thompson (CB)
I realise that your Lordships wish to get on to the substance of the Bill, and the points I am about to raise are specifically on the Bill and will have an impact on the groupings we are about to debate. I notified the Chief Whip, the clerks and the noble and learned Lord, Lord Falconer, of my intention to raise them.
The noble and learned Lord, Lord Falconer, explained in his letter this week that he recognises the concerns raised about independent advocates and that following discussions with the sponsor in the other place and their amendments, he has tabled changes. I am raising this now because of the sense of frustration that we are not getting answers to the amendments we are tabling in good faith. I hope that the noble and learned Lord will be able to answer these questions, so that we can move with a bit more pace.
I would like to probe how the changes the noble and learned Lord has suggested relate to what was agreed in the other place. The amendments in the Commons were understood to introduce independent advocates as a mandatory safeguard. This is an area that many of us are concerned about, reflecting the fact that the individuals in scope may have substantial difficulty understanding the process or communicating their wishes. Under the noble and learned Lord’s amendments, a person is treated as having an independent advocate, even if the advocate is not present or involved in the decision-making process. The amendments do not require an advocate to be present when the co-ordinating or independent doctor meets with the patient, nor when the panel considers the case. Advocacy is therefore satisfied by instruction alone rather than active participation. In addition, advocacy is made conditional on request. The preliminary discussion may proceed without an advocate, and a qualifying person may refuse one.
Could the noble and learned Lord please explain whether he considers that this framework preserves the substance of the Commons concession, or whether he accepts that it represents a shift away from a mandatory safeguard towards a more discretionary model? In particular, how does he address the concern that people who qualify precisely because they struggle to understand are required, unaided, to decide whether to waive one of the Bill’s central protections at the very outset of the process?
Lord Falconer of Thoroton (Lab)
These questions relate to a detailed amendment to Clause 22 that I tabled yesterday, which provides for an independent advocate to help people who need assistance. I will read the questions the noble Baroness has given me—she did not give me notice of them, and I make no complaint about that at all—but the appropriate place to deal with them is when we get to the amendments relating to Clause 22.
Clause 1: Assisted dying
Amendment 60
Baroness Coffey
Member's explanatory statement
This amendment broadens what activities must be done in England.
Baroness Coffey (Con)
I am grateful to the noble Lords, Lord Harper and Lord Empey, for signing this amendment. I will also speak to my Amendment 65 and consider an amendment put forward by the shadow Front Bench.
It is disappointing that the Justice Minister is not in her place on the Front Bench today, because in discussing these amendments I want to consider the important issue of assessing whether someone has capacity. The MoJ is responsible for that, and for several of the other matters I wish to speak on. We are only at Clause 1(3), but this is a key element to consider carefully: where do all these issues have to happen, and do they have to happen face to face?
As the Bill reads currently, it suggests that only the initial request for assistance, the first declaration, the doctor’s assessment and the second doctor’s assessment, and then the second declaration, have to happen while the person making all these requests is in the country. No other part of the Bill, including preliminary discussions and the act itself—all these other things—has to happen in this country; the person does not have to be here.
I think I have made it clear in a series of amendments that I have brought to the Committee that my concern is how this becomes something that is decided not just on paper. There should be real interaction, and I am trying to understand how the Bill will work in practice. That is why I have asked a series of questions on whether or not the terminally ill person making the request has to be in the country. We should get into other aspects, such as whether the panel has to be here.
We had a debate earlier in Committee, during which I made a clumsy attempt to make sure people had to be in this country. As I said, you can be ordinarily resident in more than one country at the same time. I want to continue to focus on this being a person-based process—I do not like using the term “patient-based process”, as I do not consider this to be a health treatment—and a lot of that is about where somebody is and whether there is a face-to-face link.
Recently, in a different policy, the Government rightly want to accelerate and increase substantially the number of face-to-face assessments for consideration of eligibility for sickness benefits. A lot of that was changed during Covid because, frankly, it was not practical to undertake that process. It has been gradually brought back and needs to be accelerated. The thinking alongside that policy is critical to the application of this Bill.
I have interpreted Clause 1(3)(b) as meaning that only
“steps under sections 10 and 11”
have to be done by persons in England and Wales, and that is the initial assessment. I put it to the Committee that a lot more of this should be done face to face. As the late James Munby pointed out, it is absolutely right that the panel should be considering this process and looking into this. I am conscious there will be medics here who have perhaps an even greater understanding than I of how the variety of assessments should be done face to face. What happens when people are making a declaration? Are we sure that somebody is not in the room, giving them the eyes so that they will give the right answers? How are we to understand whether coercion can happen or not?
In a documentary undertaken by ITV, the Bill’s promoter, Kim Leadbeater, expressed concerns about what happens in Oregon, where a lot of this is done by video link. I believe she was uncomfortable and would consider adding an amendment to make it clear that consultations with doctors could not be done by video call and should be done in person. That has not been done so far, and no explanation has been given. That is why I have tabled these amendments. They would be a very important way of making sure there are safeguards so that, as we go through this novel process to us— I appreciate it is not novel to the world—we have every confidence that a lot of the safeguards which people are concerned about are going to be appropriately applied.
Last week, a discussion on a group brought forward by the noble Lord, Lord Birt, gave us a picture of how this could look. Indeed, the amendments tabled by the noble and learned Lord, Lord Falconer, have started to touch on aspects of this, such as how a commission can happen. But I can see that, very quickly, especially bearing in mind some of the amendments last week—though I appreciate that the noble and learned Lord did not accept them—a panel could be meeting every day. Right now, it could involve somebody on holiday in Tenerife and somebody else elsewhere meeting on Zoom or Teams or whatever. That could quickly become a routine tick-box exercise. That is the very reason the late Sir James Munby pointed out that this should not be given to judges—what is the point of having a judge if it will be just a tick-box exercise? We need to be careful that we do not end up in that situation.
In Amendment 65, I have suggested specifically what needs to be done face to face: the preliminary discussion, the request—as is in the Bill—and the witness. The witness should be there and it should be face to face. That seems sensible. We have the first and second assessment already there, but I think we could go further. What about the interaction with the independent advocate? Is that going to be done down the phone? These are the serious things which we need to consider. Should the panel meet face to face with the person applying? I appreciate that, in Amendment 320A, the assumption is that it should be face to face, but perhaps with exceptions by a video link. Again, when I initially started observing this at the other end, I thought that this would happen. What seems to have evolved is that a lot of this will be done remotely. The only thing I have not included in Amendment 65 is the actual doctor being there and the assessment happening in this country—although that is not specified in the Bill. Clause 25(3) says that the co-ordinating doctor has to be there in person, although under the following clause that can all be delegated to somebody else.
I do not want to overly labour the point in consideration, but I hope noble Lords will give some thought to how they want to see the Bill work in practice. It may be that people are happy for this all to happen via video and are wondering why we are getting in the way, given that this is about autonomy. However, these would be sensible amendments to consider to make sure that, while no Minister yet has said this is a safe Bill, it is as safe as possible. We need to look at the operation of it. It is certainly the case in other parts of the health system that a lot of this would not be acceptable and would have to be done face to face. It is not a case of overengineering the Bill or leaving it to regulations. We should be clear in Parliament that this is what we are going to do.
I am conscious of Amendment 320A, and I appreciate that my noble friend Lord Evans of Rainow, in Amendment 376, has particularly singled out “in person” for parts of Clause 12. I get that some people may be so terminally ill that perhaps a video link might be used, but that should be exceptional, if we are going to go down that route at all. I look forward to hearing my noble friend explain why that is the case and how it can be administered. With that, I beg to move.
Lord Empey (UUP)
My Lords, I have put my name to some of these amendments. In the spirit of what the Chief Whip said, I will not repeat what the noble Baroness, Lady Coffey, said, but I gently remind the Committee that this Private Member’s Bill is not normal, in so far as most Private Member’s Bills are five, six, seven or eight pages. This one is 51 pages, with 59 clauses. It is a very different animal from what we are used to.
I think the amendments in this group have been tabled because, in many respects, this aspect of the process is deeply disturbing. We are talking about life and death here; we are talking about making assessments of a person who is making an application for an assisted death. Noble Lords will be aware that, on 29 October, in the Select Committee, Professor Martin J Vernon, chair of the British Geriatrics Society’s ethics and law special interest group, said:
“Assessing somebody remotely, digitally, without a face-to-face assessment, particularly if they have complex health and social care needs, is nigh-on impossible”.
I would have thought that, to assess somebody’s state of mind and to have any sense of judging whether they are being coerced or not, one of the most obvious things is to see them in front of you and get the feel for that. How can a psychiatrist judge this?
The other point I would make is about the practicalities. Depending on where someone is in this country, they may or may not have the equipment or the capacity to use it; signals drop off. Inevitably, if somebody is in a frail and unstable condition, there will have to be other people present to operate this. Does that mean that a team from the hospital would have to go out to some remote location—or, even worse, are we doing stuff on the phone? Can you imagine how people would react? “Dial-a-death” would be the sort of way that people would describe it.
Lord Evans of Rainow (Con)
My Lords, I will speak to my Amendment 376. It is a pleasure to follow the noble Lord, Lord Empey. Last Friday, like many of your Lordships, I sat here all day and did not say a word. My amendment was in the following group, but sadly we did not get to it. However, there was an excellent discussion, and I want to pay tribute to some of the contributors: my noble friend Lord Deben, the noble Lord, Lord Mawson, and indeed the noble and learned Lord, Lord Falconer.
The noble and learned Lord said something that rang a bell; he referred to studied diligence, and how healthcare professionals and the whole system will study how best to conduct these assessments. When he said “studied diligence”, it reminded me of some experiences that I had as a Member of Parliament in helping people in very distressing circumstances with the healthcare of loved ones and trying to navigate the system. The thing that struck me was studied neglect. Studied neglect is quite difficult to detect, because it is not always obvious.
Many of us in this House have a routine, which is what makes us get up every day, and as you get older, that routine becomes very important. You have a good night’s sleep, you wake up in the morning, you shower, you clean your teeth, you exercise and you go to work, or to functions in the community. You eat well—you eat healthily. You can lead a normal life, as many of us do in this House, but something may happen to you—you may slip, trip and fall, and you may find yourself in hospital. That is when things can go wrong, because you are out of that routine of a good night’s sleep and getting up in the morning. For every week that you lie in bed, you lose 10% of your muscle strength. You do not get up, you do not do your routine, you do not shower and you do not clean your teeth. Things start happening to you, and you can go downhill very quickly.
Those things can happen through daily life—but the thing that really concerns me about this Bill, and the reason why I tabled this particular amendment insisting on face-to-face diagnosis from the healthcare professionals having to make this decision, is based on my experience as an MP. Close family and friends can have a malign influence by slowly but surely—this is why I referred to it as studied neglect—not encouraging a loved one to get out of bed in the morning, so that routine declines. They stop showering in the morning; they do not go for their manicure or pedicure or to get their hair done, and they start to decline. People who we always regard as very smart for their age can decline very quickly. The loved ones around them can engineer that, so that when social workers and healthcare professionals meet those people, it is not obvious what is happening. They are not sleeping properly, not looking after themselves properly and not eating properly, and therefore they decline. Nutrition is very important. You also have medication, and there can be no clear care plan; as one grows older, we take lots more medication, and that medication can be increased when it does not need to be increased or indeed not given at all.
That is why I am using the phrase “studied neglect”, to the “studied diligence” of noble and learned Lord, Lord Falconer. We really have to look very carefully at the malign forces that, I am afraid, are out there in society. They look at granny and, as my noble friend Lord Deben says, the £2 million house sitting there, and can slowly but surely—but still relatively quickly—see the demise of granny and realise those capital assets. That is the reason why I put this amendment forward.
Crucial steps in the assisted dying process should be undertaken with direct, in-person interaction, to increase the likelihood that the individual’s request is truly voluntary, informed and free from coercion. The necessity for direct interaction with a person, particularly through face-to-face contact, is driven by the importance of rigorous safeguards and scrutiny, and of upholding patient autonomy in a process that culminates in an irreversible outcome, called death. I could use many more examples but, in the interests of time, I beg to move this amendment.
Lord Blencathra (Con)
My Lords, I will speak to my Amendment 320B and three others in my name in this group. The first clinical gateway in this Bill is the most important moment any of us will ever legislate for: the moment a doctor begins the process that can lead to a life being ended. That gateway must be treated with the utmost care; it should not be reduced to a convenience-driven video call.
My amendment is simple and proportionate: it creates a presumption that the co-ordinating doctor’s first assessment takes place in person, and it asks only that, if the presumption is displaced, the doctor records why an in-person meeting was not possible for medical reasons. That is not micromanagement; it is common sense. It is the minimum standard of human contact that we should expect before opening a pathway that is irreversible.
Why does this matter? First, capacity and voluntariness are relational judgments. Clinicians do not assess capacity from words alone: they read people’s faces; they notice the hesitation; they observe the environment and see who else is present. They pick up the small, telling signs of distress or coercion that a screen can hide: a hand hovering off the camera, a whispered instruction, a look that does not match the words. Remote consultations blunt those senses. If we are serious about preventing coercion, the law should make face to face the default, not the exception.
Secondly, this is a narrow safeguard, not a prohibition. The amendment allows remote assessment where it is genuinely impossible for medical reasons. It recognises that there will be rare cases where a patient is too frail to be seen in person; in those cases, the co-ordinating doctor must set out the reasons. That requirement creates an audit trail and accountability. It deters the normalisation of remote practice for administrative convenience and gives panels, the commissioner and, if necessary, later reviewers, a clear record of why the presumption was set aside.
Thirdly, the evidence is clear: leading geriatricians and psychiatrists have told committees that assessing capacity remotely for complex patients is nigh on impossible. Telemedicine studies and the experience of courts show the limits of video for detecting vulnerability. We should legislate to reflect clinical reality, not hope that guidance will be followed uniformly across hundreds of clinicians and thousands of cases. Some will say that this amendment would delay access or over-engineer the process, but I disagree. A single in-person assessment at the outset is a modest investment of time that dramatically reduces the risk of error. If the system is robust, it will absorb that step without undue delay. If the system cannot, then speed is being prioritised over safety, and that would be a real problem.
Finally on this amendment, will the noble and learned Lord, Lord Falconer of Thoroton, accept that a life-ending pathway should begin with human contact, with a clinician who has seen the person in the flesh—smelled the room, so to speak—and observed the context in which that wish has arisen, or does he prefer a default of pixels on a screen? When the outcome is death, convenience must never trump clinical rigour. I urge the Committee to support my Amendment 320B.
My Amendment 347A would ensure that the second assessment—the final medical safeguard—is conducted in person. The Bill currently allows the independent doctor to assess the patient entirely by video. That is extraordinary for a life-ending decision. Experts told the House of Lords Select Committee that assessing capacity remotely is, as I said, nigh on impossible for complex patients. The subtle signs of confusion, fear, coercion or cognitive impairment are often visible only in person. Remote assessment hides the environment. Who is in the room? Who is influencing the patient? What pressure are they under? Kim Leadbeater MP herself said she was uncomfortable watching Oregon’s remote assessments, describing them as “tick-box”. If the sponsor is uncomfortable with death by Zoom, Parliament should not legislate for it. This amendment of mine is modest, proportionate and essential for safeguarding.
If remote assessments are permitted at all, my Amendment 406A would introduce the bare minimum safeguards: the doctor must verify that the patient is alone and speaking freely. Coercion, as we know, is often silent. Abusers can sit off-camera, and patients are coached. A Michigan prosecutor famously spotted a domestic abuse victim being coerced during a Zoom hearing. If trained lawyers and judges can miss coercion on video, how can a doctor reliably detect it in a single remote consultation? My amendment would not ban remote assessment but simply prevent the most obvious and dangerous form of abuse. Without it, the Bill’s coercion safeguards are meaningless.
My Amendment 415B would ensure that remote assessments are tightly controlled, used only when appropriate and subject to independent oversight. The Bill currently allows remote and even pre-recorded assessments without any statutory framework. A protocol approved by the commissioner would ensure consistency, transparency and accountability. It would prevent remote assessment becoming the default due to NHS pressures or simple convenience. Without this amendment, I suggest, the Bill creates a system where lethal decisions can be made based on pre-recorded video clips. That is indefensible.
In summary, my four amendments form a single, focused package of safeguards to ensure that human judgment, not administrative convenience, governs a life-ending pathway. Amendment 320B would make the first assessment face to face by default—the minimum human contact needed to test capacity and spot coercion. Amendment 347A would extend that presumption to the independent second assessment so that the final clinical check is equally robust. Amendment 406A would require a simple verification when assessments are remote—a recorded confirmation that the patient is alone and speaking freely. Amendment 415B demands a statutory protocol for remote or pre-recorded assessments so that exceptions are tightly controlled and independently verified.
These are modest, proportionate measures. They do not block access where an in-person assessment is genuinely impossible, but they stop convenience becoming the norm when the consequence is irreversible. If this Bill is to be the safest system in the world, will the noble and learned Lord, Lord Falconer of Thoroton, accept these targeted protections so that speed and convenience never replace clinical judgment and human scrutiny? I urge the Committee to support my amendments.
Baroness Gerada (CB)
My Lords, I assure the noble Baroness, Lady Coffey, that this issue will never be a routine tick-box exercise. Being in Tenerife rather than Torbay is the choice of the patient. If they want to spend that time there before they return to the UK and die, it is not our choice. Videos allow patients and their families to be together for those assessments. There is no ethical or clinical reason why an assisted dying request, or aspects of care included in the clauses laid out, must be face to face. What matters is capacity, choice and informed consent, not physical proximity.
During Covid, I assessed thousands of patients’ capacity, consent and safeguarding issues remotely, with no evidence of increased coercion or harm. Patients can already refuse life-sustaining treatments such as renal dialysis, have feeding withdrawn or make advanced decisions to remove treatment without face-to-face legal requirements. Face-to-face assessment requirements, as laid out in these amendments, are a policy choice, not a clinical or ethical necessity. What protects patients is careful assessment, independence, documentation and review, not the distance between two chairs.
Baroness Butler-Sloss (CB)
My Lords, for the reasons given, mainly by the noble Lord, Lord Empey, and despite what the noble Baroness, Lady Gerada, has just said, it seems to me highly desirable that there should be face-to-face contact if such an enormously important decision is being made. I therefore support face-to-face contact at both stages, other than for reasons where it cannot happen.
The Lord Bishop of Newcastle
My Lords, taken together, the amendments in this group highlight the importance of contact with people at the hardest time in their lives—a time when we must be most vulnerable, clinically and personally. This must not be a process in which anyone is made to feel rushed or that can be completed entirely online.
If we are content to enable access to a slick service as quickly as possible, an online service may be acceptable, but if we are to continue to take seriously our duties of suicide prevention, of assessing and meeting unmet need and of safeguarding, the human contact of being face to face is part of that.
During the Select Committee sessions, we heard evidence from the chief executives of Mind and Standing Together Against Domestic Abuse, who said that an online or pre-recorded consultation was not an adequate safeguard to assess a person’s emotional state. This must be especially true in complex cases. I remind your Lordships that prisoners are still eligible under the Bill. As we engage with every group, we must consider how the particular issue might play out in a prison context. All the challenges that we are worried about, including the assessment of unmet need and the presence of an undiagnosed mental disorder, are more difficult in a prison environment. So I would be grateful if the noble and learned Lord, Lord Falconer, could outline whether he thinks in-person assessments should be even more important in a prison context.
Baroness Lawlor (Con)
My Lords, I added my name in support of the amendment from the noble Lord, Lord Evans of Rainow, for in-person assessment by the assisting doctor—the first assessment and the second. As has been said, how on earth can any doctor judge the mind—the physical and mental condition—of the person whom he or she may be ticking off to death without being in the room with them, particularly as this doctor may never have treated them in person?
I know that since Covid there has been an increase in remote consultations, but it is still the case that the average number of in-person consultations that a patient has with a doctor is three a year. In the case of consultation for assisted suicide, that such an appointment with the doctor is in person matters, as other noble Lords have said. We have heard a reference to telemedicine from the noble Lord, Lord Blencathra, but let us look at exactly what the British Columbia study reported of telemedicine: it limits the ability to observe non-verbal cues, subtle signs of distress and general context, and it fails to provide the emotional support, human contact and rapport essential to the therapeutic relationship between both parties in what is a shared decision. The study goes on to say that it provides limited evidence on long-term outcomes, especially with regard to hard data on assessment quality or adverse consequences. It goes on to say that ticking boxes rather than doing an in-person examination risks further streamlining to avoid an impact on scarce medical resources.
We know, for instance, from the Liverpool care pathway figures released in 2012 under the Freedom of Information Act, that two-thirds of the trusts had received incentive payments for meeting targets for using the pathway, amounting to around £12 million—that was in 2012. Telemedicine is also inappropriate for some patients: people with learning difficulties, autism, poor communication or verbal skills or mental health illness.
I conclude by asking whether the noble and learned Lord, the promoter of the Bill, disagrees with Professor Mumtaz Patel, President of the Royal College of Physicians, that face to face assessment really matters? She says:
“Face-to-face assessment is really important and then the wider decision-making has to be done as a team, through shared decision-making and with somebody who knows the patient well. It goes back to the continuity”.
Does the noble and learned Lord acknowledge the evidence of the “off camera” abuse example from the US state of Michigan? The noble Baroness, Lady Coffey, mentioned the difficulty of detecting abuse online at the very outset of the debate. In Michigan, a prosecutor noticed a domestic abuse victim being coerced off camera during a Zoom hearing. I hope the noble and learned Lord can reply to some of those points.
Baroness Jay of Paddington (Lab)
My Lords, I wonder whether the House will listen to the point made by the noble Baroness, Lady Gerada, which is that she is probably the only person in the House—and certainly the only person who has spoken this morning—who has had practical experience of assessing people. She spoke very well about the issues which have been raised this morning in relation to the Covid epidemic, saying that, “There was not a clinical or ethical necessity to see people face to face to make proper judgments”. I really want the House to accept that someone with that practical experience should be listened to.
I will make one other short point, which is that I am again surprised, frankly, by the number of people who have spoken this morning who, without, as it were, even mentioning the question of the circumstances of those who are terminally ill and are asking for assistance, talk so much about administrative procedures, the way in which a network might be formed, or the way in which technology could be used. Frankly, I would like to hear a little more from everybody who contributes about the circumstances and problems of those who are actually seeking assisted dying and who may well be those who, frankly, for one reason or another—because they are physically in a way that they cannot do it, or they are perhaps geographically remote or have other circumstances which prevent them being able to access a face-to-face agreement or a face-to-face assessment—none the less very much want an assisted death for their terminal illness. Their concerns should be the ones we primarily consider.
Baroness Smith of Newnham (LD)
My Lords, the noble Baroness, Lady Jay, just asked us to consider the circumstances of those who are seeking an assisted death, but I would like to give a salutary lesson—I am sorry to disagree with the noble Baroness, Lady Gerada.
My father was taken ill during the Covid pandemic. He did not have a smartphone and was not able to have an in-person consultation. He had jaundice. The message he came away with from speaking to a doctor on the telephone—the doctor had never met him—was, “It’s pancreatic cancer”. My father then spent weeks saying goodbye to all his relatives and friends. By the time relevant tests had been done, it was shown that he did not have pancreatic cancer.
That demonstrates one of the flaws of doing something remotely, which is: what are the messages? The doctors are not getting the cues and the patient is not necessarily hearing what the doctor is saying. I am sure that the doctor did not say, “Mr Smith, you have pancreatic cancer”—clearly, they could not have said that—but that was the message that my father heard. I therefore very strongly support the amendments in the name of the noble Lord, Lord Evans of Rainow, and two of the amendments from the noble Lord, Lord Blencathra.
However, I want to express one serious reservation about Amendment 406A from the noble Lord, Lord Blencathra. If the discussion has to be taken by video conference, it might not be appropriate to say that in every circumstance the only person who should be on that call is the patient. We all know that, when you go to the doctors, even if you are there in person, you have capacity, you are a rational person and you do not have any cognitive difficulties, you do not hear everything. Sometimes, if it is a difficult diagnosis, you do not take everything on board. For some people who are told that they have a terminal diagnosis and understand that that is the case—unlike in the false case of my late father, who did not have a terminal condition at that stage—we know what their settled will is. There are several people in your Lordships’ House who have what their settled will is very clearly on record, in the public domain. But there will be other people with whom the doctor has never spoken before, so they cannot know whether it is somebody’s settled will in a way that the legislation requires.
If, then, there has to be a video conversation, or indeed an in-person conversation, it might be appropriate for there to be an independent advocate or somebody else who would support that person and could say, “The doctor did not really say that, you know”. We need to think about real-life cases. Yes, we need to understand from the medical profession, and it needs to be from the perspective of somebody with a terminal diagnosis, but we also need to understand the reality for ordinary people who do not have the advantages of the internet or the accessibility that Members of your Lordships’ House have.
Baroness Keeley (Lab)
My Lords, I will speak on face-to-face consultation; my Amendment 483 on this is in a later group.
During the Covid-19 pandemic, it was briefly made possible for the making of a will to be witnessed by videolink rather than in person. This change could have been made permanent, but instead the Government decided that the videolink provision should cease from January 2024. The law is now again that the witness must have a clear line of sight of the person making the will. Are these precautions any less important when assessing whether someone truly wants an assisted death and is not being coerced than when establishing what should happen to their assets afterwards?
Baroness Finlay of Llandaff (CB)
My Lords, the noble Baroness, Lady Keeley, has already alluded to the issue of wills, so I will not go to that, but there is another legal precedent, Devon Partnership NHS Trust v the Secretary of State for Health and Social Care in 2021, when the High Court ruled that under the Mental Health Act, the phrases “personally seen” and “personally examined” require the clinician and approved mental health professional to be physically present with the patient for detention assessments. Following that, NHS England reviewed its guidance. That underscores the legal and clinical importance of physical co-present evaluation when decisions carry high consequence.
Secondly, during Covid I chaired the National Mental Capacity Forum and ran fast-track online seminars for those who were doing remote assessments because of the problem of people in care homes. It was a very difficult time and that was a public health necessity. Since then, some remote consultations have certainly continued, as we have already heard. However, the qualitative studies of remote mental health care during the pandemic found that a lack of face-to-face contact compromised risk assessment and therapeutic insight.
Systemic reviews have noted significant difficulty establishing a therapeutic relationship, identifying risk, and with challenges in picking up non-verbal communication and building rapport coming through as recurrent themes. They caution how remote assessments can be less effective in capturing complex, subtle behaviours, non-verbal distress, agitation and contextual pressures, which are crucial in determining voluntariness and in detecting distress or coercion. Clinicians and carers have reported that non-verbal cues were often unavailable or obscured in remote interactions, particularly telephone consultations but also by video. Even when remote assessments were used only to triage risk, delaying face-to-face evaluation, the effects slowed down accurate identification of deteriorating conditions.
Baroness Pidgeon (LD)
My Lords, it is essential that, as we debate this group of amendments, we keep in mind the fact that the systems that we are creating are for people in the last six months of their lives. We must balance the demands that we place on them at this very vulnerable time with what really matters to them during that time. We should stop talking about microprocess and start really thinking about the individual. In her evidence to the House of Lords inquiry in November, Dr Jessica Young said that
“a system that is too onerous creates stress among the people it aims to serve”.
We must not create a system that is too complex and too protracted for someone who is at the end of their life to deal with.
We have made incredible progress in recent years on facilitating video consultations. That came on hugely in the pandemic. Are we not in danger of taking a retrograde step with these amendments? I fear in particular that we in this House must be careful about standing in the way of technological process. Reading some of these amendments, I wonder whether people might want to add in that we write with feather quills and ink, because it seems that that is what this is really about.
Amendment 65 would mandate a whole range of steps beyond clinical assessments to be undertaken face to face. It also seems to disapply the flexibility provided in the Bill with regards to the person meeting the panel. Is it the intention of this amendment that a person who cannot travel to appointments, whether physically or because of the risk of infection, must be denied a choice over how they die? These amendments will affect hugely those who live in rural areas and far from their GP, let alone a hospital with a relevant specialist. They will affect those whose immune systems have been compromised as a result of extensive chemotherapy and those whose mobility is affected by their terminal illness and who find it impossible to travel. Are we not at risk of denying access to these people when such challenges are not unusual, given the nature of what they are experiencing with their terminal illness? Is it the intention that someone who is, for practical medical reasons, unable to meet the independent advocate or the panel, but is able and willing to do so via video link, will immediately be ineligible even if they fulfil all the other criteria? It is difficult to see a basis on which that can be justified.
Baroness Pidgeon (LD)
I am coming to the end of my speech; I do not think I have to take an intervention, so I would like to finish my point.
It seems to me that this is about making the choice of an assisted death difficult or impossible. We need to think carefully about the checks that we are putting in place for people in the last six months of their lives. We need to make sure that the system really will work for them.
Baroness Fox of Buckley (Non-Afl)
My Lords, we should thank the noble Baronesses, Lady Gerada and Lady Pidgeon, for raising important counters to a lot of these contributions, because it is important that we do not fetishise face-to-face communication as infallible. It offers no guarantee that comprehension happens, that people listen and that there is no misunderstanding. We should know that because we sit face to face in this Committee every Friday and goodness knows it has not guaranteed much of that.
I have put my name to several of the amendments in this group because, despite what the noble Baroness, Lady Pidgeon, just said about how we must make this as easy as possible for people with six months to live, the Bill’s sponsors have rightly built the need for eligibility into the Bill. You cannot just wander in and say, “I’ve got six months to live, get rid of me”; you have to pass the eligibility assessment. We are trying to work out whether face to face as the default would be a better way of guaranteeing that there is no abuse, which is reasonable.
I remember the ITV documentary referenced by the noble Baroness, Lady Coffey, in which I heard the Bill’s sponsor in the other place, Kim Leadbeater, admit that she was uncomfortable with what has been labelled “death by Zoom”—the model that she was watching in Oregon. Despite what the noble Baroness, Lady Gerada, said, it was actually Kim Leadbeater who rightly noted that it looked too much like a tick-box exercise. We need to be wary of anything that goes in that direction, but, because this is what I saw in that documentary, I expected a basic requirement in the Bill for face-to-face assessment, except in exceptional circumstances. So I ask the noble and learned Lord, Lord Falconer, to respond on why the Bill still permits so many encounters with doctors, including the panel, to be conducted remotely, meaning that somebody may access assisted death without having seen a doctor face to face. One might pause on that, at least.
Despite the virtues of telemedicine, of which there are many—we can all see the reasons why, on occasion, it is important, just as we all use Zoom for meetings and so on—this is a question of whether it is superior and whether it can be relied on. The noble Baroness, Lady Smith of Newnham, gave a vivid example in response to the contribution from the noble Baroness, Lady Jay, in which she said, “At least the noble Baroness, Lady Gerada, knows what it is like to be the doctor doing the consultation”. Well, some of us know what it is like to be the patient on the other end of it. To be honest, it is not always a case of “trust the expert” and all that, because there absolutely may be crossed wires, hanging around, frustration and all sorts of things going wrong.
Professor Martin Vernon, who chairs the ethics and law special interest group at the British Geriatrics Society, said:
“Assessing somebody remotely, digitally, without a face-to-face assessment, particularly if they have complex health and social care needs, is nigh-on impossible”.
There is something in that, too, which we should consider. Non-face-to-face Zoom or phone encounters are particularly challenging for certain groups, such as people with communication difficulties. The noble Baroness, Lady Nicholson, reminded us of the issues for people with hearing difficulties in our debate on a previous group. We all know that there are difficulties of language.
Of course, older people are likely to make up the majority of those being assessed for assisted dying. Without wanting to caricature oldies as being technically illiterate—although there is a smidgen of truth there—there is something else to consider. Older people sometimes present their best selves on the phone. They put on their best voice. There is nothing wrong with that, but they chat away as though everything is fine and, even on Zoom, they sit there looking their best.
However, when you see them face to face—I am not now talking about a doctor assessing them—they are dishevelled, pale and frail. Something else happens. Because the assisted dying decision involves highly emotional and existential issues, purely remote assessments potentially undermine the relational aspects of care that will help ensure that decisions are well considered and autonomously made. We have to think about those direct, personal interactions. The noble Baroness, Lady Jay, is right: these are the last six months of your life—allegedly; that is what you have been told. People are vulnerable, distressed and not quite sure. All these amendments are suggesting is that it would possibly be better to see the doctor. If you cannot get there, that is all fine, nobody is being inhumane; but the doctor sees you and assesses what is going on. It is a necessary if not sufficient way of establishing the eligibility criteria.
Finally, the noble Lord, Lord Empey, talked about how this might be appropriate for online legal proceedings. I am sure that the noble and learned Lord is aware of the evidence on the use of video links in court proceedings and trials. In Transform Justice’s survey of court users, 70% of respondents said that it was difficult to recognise whether someone who was on video had a disability, while 74% believed that those who had no legal representation were disadvantaged by appearing on video; in other words, the vulnerable always suffer in those instances.
The report similarly found that there were significant issues in assessing evidence and character. We can learn from other areas, but the main thing is that the default should be face to face. That should be in the Bill. I agree with Kim Leadbeater on that one—that is a headline. I do not understand why, Kim Leadbeater having noted that, it is not in the Bill. There should be exceptions if people are too ill, too far away or having a ball in Tenerife for their last six months. Yes, we get all that, but the default point is: face to face, where possible, as much as possible.
Baroness Coussins (CB)
My Lords, if we are to have remote assessments, it is very important that we have an exception for one group of people who might be seeking assisted dying: those who require the services of a public service interpreter. Elsewhere in the Bill, the provision of interpreters is acknowledged and provided for. This is one situation where face-to-face consultations are essential. During Covid, there was a huge rise in remote interpreting in the criminal justice system. A number of studies, including a very robust piece of research by the Magistrates’ Association, showed that there were problems with remote interpreting, for reasons ranging from dodgy technology to missed cues because of missed body language.
In these circumstances, more than anything else, a face-to-face consultation or assessment is right and appropriate, where the services of a public service interpreter are needed for the benefit of the person seeking help.
Baroness Whitaker (Lab)
My Lords, that provision is in the Bill, if the noble Baroness would just look. I am afraid that I cannot put my finger on the actual clause, but the assessing doctor is required to provide interpreters where necessary.
Baroness O’Loan (CB)
My Lords, I have added my name to Amendment 65 in this group, but will first respond briefly to what the noble Baroness, Lady Gerada, said about remote consultations. This is the core of what we are discussing today. It is not just the doctor who needs to be able to see and understand. The patient needs to be able to see, understand and interact with the doctor.
During Covid, my brother tried for six months to see his doctor. There were regular telephone calls. On each occasion, he was told that his symptoms were resulting from cardiac problems and other problems that he had had, and that all he needed to do was take painkillers. When he finally presented to A&E six months later, he had stage 4 lung cancer and bone cancer. Remote consultations do not always protect. Because this is a matter of life and death, because this is a situation in which someone is seeking death, we need to be very sure of what we are doing.
Baroness Blackstone (Lab)
My Lords, I declare an interest as the chair of one of the medical royal college’s trusts. I want to speak to this group of amendments, taking into account the medical profession. I entirely agree, and I am sure that the vast majority of doctors will also entirely agree, that it is better to have face-to-face consultations in these circumstances. However, nearly all those who have spoken in favour of face-to-face consultations have admitted or agreed that there will be exceptions, and there will be quite a lot of exceptions. We have to remember that many people who are terminally ill are bed-bound; they are not able to get up and go to a face-to-face consultation, even if it is quite near to where they live. The vast majority of doctors would want to discuss with their patients whether a face-to-face appointment is acceptable, possible and desirable and, if not, to have an online consultation with them. That seems to me the right approach.
Moreover, I really wonder whether we should be putting in the Bill a clause that would constrain doctors in a way that I think is unacceptable. We must accept that the vast majority of doctors will go into this work with utter commitment to doing the best possible job they can. I find it a bit disconcerting that there is constant reference to a tick-box approach; you can have a tick-box approach face-to-face, or you can have a tick box approach in a consultation online. It does not seem to me a relevant and important point to make. I suggest that, rather than putting this in the Bill, given that I am sure that there is a very strong case for face-to-face consultations normally, it should instead be part of a code of practice for the medical profession that will certainly have to be developed if and when this Bill is enacted.
Lord Birt (CB)
My Lords, we are discussing one of the most important decisions that any individual might make in their lives. It is important for the individual and for the state. I think that it is appropriate to ask that the critical meetings with the medical practitioners should be face-to-face, because that allows a degree of intimacy and nuance which, frankly, the world of Teams, however valuable it is, does not. There are three doctors involved in the process set out in the Bill and, at the very least, for the second doctor who is going to co-ordinate the process, it is reasonable to require that that meeting be face to face.
Baroness Berger (Lab)
My Lords, very briefly, I support the amendment that is calling for face-to-face consultations to take place, rather than only in exceptional cases. I want to reflect on why this matters. We know from other jurisdictions that many of these assessments are being done online. It is a really important question for us to consider whether we would want that in our country—and if not, it should be in the Bill. In addition, my comments are informed by the evidence that we were presented with in the Select Committee and drawn from my experience of meeting a number of elderly constituents over the course of nearly a decade as a Member of Parliament.
I reflect particularly on the women I met in their 70s, 80s and 90s who shared their experiences of domestic abuse. This conversation and these amendments matter because this legislation does not happen in a vacuum. The Labour Government today are rightly concerned with addressing the public health emergency of violence against women and girls in our country and has an important landmark mission and goal of halving violence against women and girls over the next decades. The NHS is playing its part and enhancing its efforts in tackling and violence against women and girls, focusing particularly on early identification. There is a lot of other very important work going on via training and investment, and I commend the work of many colleagues who are dealing with this on a daily basis. It was the experts that told us that to identify coercion, undue influence and pressure, doctors and other professionals need to look at someone’s body language. It is not just the words we say, how we say them, the volume or the tone—it is our non-verbal cues and what our body says. It is what we do not say that often shares an important message.
I listened very carefully to the counterchallenge of noble Lords so far. I do not think there is anything to stop the Bill from stipulating that, in exceptional circumstances, the doctors, or the independent advocates or panel members can visit an individual. But I would much rather that we had legislation that supports the Government’s important aim to reduce violence against women and girls, rather than something that will exacerbate the very serious problem that we know that too many women in our country face, particularly at their most vulnerable moments, which includes the end of life.
Lord Hamilton of Epsom (Con)
Can the noble Baroness recall that last week she told the House that 23% of six-months-to-live diagnoses turned out to be wrong and that people lived longer? Does that not make the whole position of face-to-face diagnosis much more important when doctors so often get it wrong?
Baroness Grey-Thompson (CB)
My Lords, technology has gone a long way to helping disabled people to lead inclusive and integrated lives in British society, and I generally support the use of it. But for many of us who worked on the coronavirus legislation, where we had to make very quick decisions, the speed with which we went online made it seem as if, as a society, we had moved decades forward from having to meet only in person. Even your Lordships’ Chamber managed to meet and vote online. But that comes with a set of challenges.
We have to look at what happened during Covid and the huge increase in domestic abuse. It was not just because we did not have to ask people to turn their cameras on. It was deemed that would be upsetting, so we could not see if somebody had been domestically abused. The impact of increasing domestic abuse was also because there was more recording. Even when you look at the technology that we have in your Lordships’ Chamber, it is not foolproof. I was on a call yesterday in my office. The system crashed twice, and the people I was speaking to on Teams did not even realise and carried on talking. We have to think very carefully about how we would use technology.
Age UK said that about 2.4 million older people do not have access to technology in this country and just under 2 million do not have a mobile phone, let alone a smartphone, so if we are going to do this, we need to think carefully about what other provisions will be in place. I agree with the noble Baroness, Lady Berger; why can the panel not go and visit the individual? I think there is something about being in their own home. The noble Baroness, Lady Pidgeon, raised rural areas. What if people do not have the technology? What will be put in place to ensure that there is a suitable online option?
Lord Carlile of Berriew (CB)
My Lords, I want to make two points about whether these consultations should be face to face. First, I remind the Committee of the General Medical Council’s remote consultation diagram, which is in the GMC guidance. It is not absolutist about whether doctors should see patients remotely or face to face, but it sets out guidance. It starts:
“Remote consultations may be appropriate when… The patient’s clinical need or treatment request is straightforward”.
We are not talking about straightforward clinical needs or treatment requests here. The other side of the diagram says:
“Face to face consultations may be preferrable when… The patient has complex clinical needs or is requesting higher risk treatments”.
As I have said previously, and it is historic, I was a lay member of the General Medical Council for 10 years and I was involved in helping to draft GMC guidance as well as dealing with conduct and health cases. It is unimaginable to me that the General Medical Council would create guidance in which it accepted the proposal that, save from the most exceptional circumstances based on the clearest evidence, such consultations should be done remotely.
Secondly, the medical profession is not the only group of people who have to give important advice to their patients, clients or customers. Like a few other Members of your Lordships’ House here, I have often had to give advice to people in critical situations when they faced spending possibly the rest of their lives in custody. I recall one case when, in the middle of a longish murder trial, the client asked to see me to ask a very simple question, “How do you think it’s going, sir?” The answer had to be robust and realistic, and it was very difficult. It changed the whole course of the case, which came to a quick end shortly afterwards. The result was a minor advantage to the client: he did not spend the rest of his life in prison, just a substantial proportion of it, but that was very important to him.
I would say to your Lordships that it is quite difficult to see a doctor these days, unless you go to a private doctor. Even if you have seen a doctor, it is quite difficult to see the same one twice. There are remote hearings in the legal profession in certain circumstances, but for the sort of important decisions that I have been describing, it is unthinkable—to us, the professional lawyers who do these cases—that such consultations should not be face to face. That is a qualitative analysis based on two examples, but I hope your Lordships found it convincing.
Lord Sandhurst (Con)
My Lords, I can be truly short here and it is further to a point made by the noble Baroness, Lady Grey-Thompson. Many of us are concerned about subtle pressure and coercion. It will not appear in all cases, but it will in some and these are legitimate concerns. If this is online, doctors are unlikely to know whether there is someone else present in the room or whether the door is open for someone to listen, nod and encourage the applicant—if I can call the person that—to make their request. If at least one of the panel is present in the room, they would be able to see and counter that. It is really important that there is at least one of those people, preferably the panel, in order to prevent that. That is an important safeguard and, if it is done online, such things could be missed. My recollection is that, in Canada, there have been instances where people, including coroners, have raised legitimate questions afterwards.
Baroness Falkner of Margravine (CB)
My Lords, I want to pick up on two points made in this debate. First, if I heard the noble Baroness, Lady Gerada, correctly, when she advocated online meetings, she said that there is no distinction between whether the person requesting permission is in Torbay or Tenerife. That is a profoundly important legal point, which I hope the noble and learned Lord will cover in his summing up. If a person was in an online meeting in a foreign jurisdiction and it subsequently transpired that there was coercion—noble Lords have given several examples of how that could happen—from a foreign citizen, assuming the patient returned to the UK to carry out their wish to be assisted to die, what would be the legal position in the criminal law?
My second point relates to what the noble Baroness, Lady Berger, said about home assessments. I do not have the impact assessment to hand, but I recall that the number of people likely to seek assisted dying is not enormously large, running, say, to many thousands per year. Therefore, if only 10% of people were unable to have face-to-face consultations, surely the impact assessment should cover that small minority of people and the costs and practicalities of them requiring home assessments.
Lord Polak (Con)
My Lords, I support the amendments in this group, especially the one from my noble friend Lord Evans. I was not going to speak but I was moved by what the noble Baroness, Lady Smith, said about her father.
I am not a Luddite. My mother passed away in July 2023 from brain cancer, and this debate has reminded me of the Zoom call we had to look at the next stage of her treatment. I was here in London; my sister was with my mother in Liverpool, where she was lying in bed unable to speak. The nurse who was looking at the next stage of treatment for her was in Margate, had never met my mother, and was asking questions for over an hour to which mother could not reply. I have listened to this whole debate, and if we cannot put face-to-face consultation in the Bill, we are doing a great injustice to many people.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, earlier in the debate, the noble Baroness, Lady Jay of Paddington, intervened to say that she could not understand why, having talked so much, we had not actually talked about terminal illness. If the noble Baroness remains in her place, she will be here for the fifth group of amendments, on terminal illness, and there will certainly be a lot of discussion then of that issue. In fact, if we were speaking to that group of amendments now, we would be told by the Whip to address instead the amendments before us.
In the light of my experience as a minister, dealing with the general public from another side, I gently say to the noble Baroness, who was advocating for online assessments, that, if they are so perfect, why are so many mistakes made? Should we just dismiss those mistakes?
Baroness Hayman (CB)
My Lords, I will briefly follow on from the noble Lord on the issue of overengineering. I had great sympathy with the words of the noble Baroness, Lady Blackstone, and I suspect that there is widespread support in the Committee that face-to-face consultations should, in general practice and in the norm, be what happens in these circumstances. We get into great difficulty when we micro-legislate to cover every single circumstance that might occur. A code of practice is a more reasonable and flexible document to deal with this. The noble Lord shakes his head, but he just spoke about the dangers of having anyone else in the room in a consultation because of the possibility of coercion, yet the noble Baroness, Lady Smith, spoke potently about how important it was for there to be a family member, or support, or someone who could hear.
Lord McCrea of Magherafelt and Cookstown (DUP)
I was not speaking against someone being in the room. I am speaking about someone being in the room whenever it is on Zoom or on camera and not in person, because you do not know whether the person in the room is privately and secretly coercing that person.
Baroness Hayman (CB)
I understand that the noble Lord was talking about a subset of consultations, but this is my point: I think he accepted that there might, in any process, be exceptional circumstances where a consultation was not in person. I am just saying that, even in that narrow subset, there might be a reason for another person to be in the room. I am not talking about that specific point; I am trying, in general, to suggest that we should try to lay down some principles but not try to overengineer and cover every possible circumstance.
Lord Harries of Pentregarth (CB)
My Lords, like the noble Baroness, Lady Hayman, I will respond to the noble Baroness, Lady Blackstone. She seemed to express a kind of common-sense view that of course we all agree that it is much better to have face-to-face interviews, and we have heard all sorts of evidence today from the medical profession and the legal profession about how that is much better. The noble Baroness thinks there should be a code of practice. I agree, but surely that code of practice should be about where there are exceptions. It would be much safer to have a Bill in which it is specified that interviews should be face to face, except for certain exceptions laid out in a code of practice. Surely it should be that way around in order that we have as safe a Bill as possible.
Baroness Falkner of Margravine (CB)
My Lords, the noble and right reverend Lord makes a really valid point about codes of practice. Codes of practice sometimes are not statutory, so it would need to be a statutory code. Apart from all that, we also know that codes of practice become outdated. In another area of my expertise, a statutory code of practice was agreed in 2011. Although it is unlawful today, it has still not been withdrawn by the Government.
Baroness Blackstone (Lab)
My Lords, it is far easier to develop a code of practice over time and change it in the context of changes in the environment. It is much more difficult to change a law by statute, which means it has to be brought back into both Houses of Parliament, so I do not really think that the point the noble Baroness just made is valid.
Lord Harper (Con)
My Lords, having listened to this debate, I am struck that there seems to be a fair bit of consensus. Thinking back to the arrangement of business discussion we had about the pace before this debate, I have listened to the number of people who quoted Kim Leadbeater and her uncomfortableness about making these decisions on Zoom. It strikes me that if she had followed through on that uncomfortableness and put into the Bill a clear presumption that these decisions should be taken face to face, with some exceptions that I will elaborate on in a minute, we would not have needed this debate and we would be moving at a faster pace. There is perhaps a lesson there for the noble and learned Lord: if more cognisance had been taken about some of these concerns at an earlier stage, we would have moved at a faster pace.
The only reason why these amendments exists, why we have debated them and why the noble Lord, Lord Birt, referenced how important a decision this is to get right is that this issue has not already been addressed. I will just leave that there as a possible reason why there are as many amendments as there are to this lengthy Bill and why the debate is necessary: it is because it has not already been done. I will leave that for noble Lords to think about.
Baroness Young of Old Scone (Lab)
I have one note of question. We are all quoting Kim Leadbeater and how she felt about the Oregon example, but, in fact, it may be that she was not talking about the issue of videolinking but about assessments that were done solely on the basis of paperwork. I think we need to find out exactly what Kim Leadbeater was saying before we jump to conclusions about whether the promoters of this Bill have been neglectful in the way that they have dealt with that issue.
Lord Harper (Con)
The noble Baroness makes a very good point which illustrates the importance of being able to ask people questions directly rather than hearing reports of what they have said or seeing it on a video call. That is the importance of in-person conversation and the ability to ask questions and hear answers so that you know what people actually think. I think the noble Baroness has illustrated and evidenced my point extraordinarily well, and I am grateful for her intervention.
At the beginning of this, the noble Baroness, Lady Gerada, referred to medical assessments. She is right in saying that many of them can be done very well remotely. I think that is excellent. I am a great supporter of technology. We do not all believe in quills and pens, and I do not think the noble Baroness, Lady Pidgeon, was entirely suggesting that we were. She might want to reflect on that remark and whether it was entirely well-intentioned, given what the Chief Whip said to us about treating everyone with courtesy and respect. I support the use of technology where it is appropriate.
The problem here is that the noble Baroness, Lady Gerada, said that we can all rest assured that doctors would never view this as a routine exercise. The problem is that in other jurisdictions there is quite a lot of evidence that they do. While it is true, as the noble Baroness, Lady Blackstone, said, that the vast majority of doctors will approach this in absolutely the right way, I am afraid not all doctors are perfect. There was an example yesterday of a paediatrician at Great Ormond Street who had an appalling record. We have to make sure that the law makes sure that patients are properly protected in all cases, not just in the vast majority of them. Where I disagree with her slightly is that this is a policy decision, not a medical decision. Whether assessments should be face to face, either in every case or that the presumption should be that they are, is a policy decision, rightly for Parliament, not for clinicians. It should be informed by listening to clinicians, but it should also be informed by listening to evidence from the patient experience, so ably set out by the noble Baronesses, Lady Smith and Lady Berger.
The noble and learned Baroness, Lady Butler-Sloss, gave her own testimony that she has had to make decisions in these cases, and I was very struck by her view that we should certainly have a presumption that these decisions should be taken face to face. I was very struck by listening to her on previous occasions. Her experience on these matters carries a lot of weight. I also listened very carefully to the noble Lord, Lord Carlile, when he set out the GMC’s advice. Decisions for patients with a terminal illness about a course of action that will lead to the end of their life seem to me to fall squarely within the set of cases where you would want a face-to-face appointment, but equally I felt there was good counsel for us and challenge from the noble Baronesses, Lady Jay, Lady Pidgeon and Lady Blackstone, to think of the patient, the person who has the terminal illness who wants a decision. They were right to challenge us on that.
That is why I think, if we look at the balance of amendments in this group, they are very helpful because they set out a span of choices for your Lordships, from saying that every decision has to be taken in person, which I think would be wrong for the reasons that the three noble Baronesses set out, that you have to look at the patient’s views, but equally, I think the present wording is too loose and does not set out a presumption that they should be face to face. I would be very grateful to hear the view of the noble and learned Lord, Lord Falconer, on where he thinks he is likely to settle because that will be helpful for all of us when thinking about whether we have to table further amendments. It seems to be a presumption that it is face to face, but with a very limited set of circumstances where it can be not face to face. But we should not accept the presumption in a patient-centred model that the patient always has to go and see the panel or the doctors. It should absolutely be, particularly because so many people in these circumstances are going to be in poor health, that we think of a system that makes sure that when it comes to the panel at least one member of the panel, the independent person, is physically present.
That is important. These amendments touch on two parts of Clause 17. The first is subsection (6), which states:
“The duty under subsection (4)(b) to hear from the person to whom the referral relates does not apply if the panel is of the opinion that there are exceptional circumstances which justify not hearing from that person”.
That means there are circumstances where the panel does not have to hear from the person at all: not by videolink, not in person, not by pre-recorded video, not at all. That was confirmed to me when the noble and learned Lord, Lord Falconer, and I were doing a media programme—I think it was “The Week in Westminster”—where I challenged him on this. He confirmed that there were circumstances in which a decision could be taken for someone to seek assisted suicide and the panel would never have to see them at all. I do not think that is right.
The other subsection these amendments touch on is subsection (5), which states:
“Where the panel considers it appropriate for medical reasons, it may make provision for the use of pre-recorded audio or video material”.
That was inserted in the House of Commons by a Back-Bench amendment. It was not very well debated. The fact that it is pre-recorded means that it gets rid of any opportunity for questioning or challenge. The problem I have with the language there is that it says “medical reasons”, it does not say “medical reasons pertaining to the patient”. This is my last point—
Lord Empey (UUP)
We are forgetting that we can use the telephone in this circumstance. It is not even that you would have sight of the person, but you could have a pre-recorded telephone call.
Lord Harper (Con)
I am grateful for that. The final point I want to make is that we had experience during the pandemic of too many vulnerable people, people with learning disabilities, having “do not resuscitate” notices put on them by doctors. I do not want to see a system where, if we had a similar circumstance again, these sorts of decisions would be taken remotely at speed. We know from our deliberations in this House, and it is my experience in the other place, that there is no substitute for doing these things face to face where you can challenge people, ask questions, put people under that challenge and get good answers to make good decisions.
I commend this group of amendments to your Lordships, and I look forward to hearing the response of the noble and learned Lord, Lord Falconer.
Baroness Grey-Thompson (CB)
I would like to provide a brief clarification on the back of what the noble Lord, Lord Harper, said about the points raised by Ms Leadbeater’s comments about feeling uncomfortable. It came from a report on ITVX on 6 March 2025. An assessment was taking place with Dr Jess Kaan. I believe family members were there, and then she asked the patient’s family to leave the room so that she could privately ask the patient whether it was a settled wish. The patient said yes, it was. I quote directly from the ITV website:
“For Kim Leadbeater, the virtual consultations did not make for comfortable viewing—she says it has made her think about adding an amendment to make clear that consultations with doctors cannot be done via video call and that they should be done in person”.
Earl Howe (Con)
My Lords, in the interests of time I do not propose to summarise the many points and questions that have been raised in this debate. However, I wish to speak briefly to Amendment 320A in the name of my noble friend Lord Wolfson. The amendment seeks to set the presumption that the first assessment by the co-ordinating doctor
“must be undertaken in person, except in circumstances where this is not reasonably practicable”.
It is plain from everything that we have heard in the debate that the first assessment is a pivotal moment in the process set out in the Bill. It is the point at which a co-ordinating doctor must satisfy themselves not only of the diagnosis and prognosis but of the patient’s capacity and will and, crucially, the absence of coercion or pressure, as set out in Clause 10. These are human judgments that depend not simply on what a patient says but on the way that they say it, on physical cues and on the broader context in which the conversation takes place.
I listened carefully to the noble Baroness, Lady Finlay, in particular, as I did to other noble Lords, and an in-person assessment undoubtedly allows a clinician to observe matters that may not be apparent on a screen—for example, who else is present in the room, whether the individual appears comfortable speaking freely or whether there are signs, however subtle, of hesitation or external influence. At the same time, I suggest that we need to be patient-focused as well as doctor-focused, which is why my noble friend’s amendment seeks to recognise practical realities. There will surely, from time to time, be circumstances, perhaps in late-stage illness when a person may be in acute distress, where an in-person assessment is genuinely not possible. The reasons for that could be several, but in those cases we need to ask ourselves whether a live video and audio link would be preferable to a delay, or even a complete exclusion from the process.
I emphasise that the amendment is a probing one. If we decide that provision should be made for certain cases then that would surely be a classic area for guidance or codes of practice, but the key test in every instance would be what is reasonable in the circumstances. My noble friend wants to be clear that this amendment is about setting the right default for arguably the most consequential clinical judgment in the entire scheme of the Bill, while preserving professional discretion in response to the needs of the patient where circumstances require flexibility.
I have deliberately spoken in general terms when talking about what might not be reasonably practicable. The question is really the one posed by the noble Baroness, Lady Hayman: how rigid do we wish the Bill to be in prescribing how the system should work? I hope the noble and learned Lord, Lord Falconer, could set out his vision of how this mechanism will work in practice and how he will ensure that the safeguards that we all want to see can still be maintained if an in-person assessment is not possible.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I am grateful to all noble Lords for their contributions to this debate. As ever, I will limit my comments to amendments on which the Government have major legal, technical or operational workability concerns.
First, I draw the attention of the Committee to operational workability concerns about Amendments 60 and 65. Under Amendment 60, professionals delivering the service would be responsible for checking whether the person was in England or Wales on multiple occasions before carrying out their duties, even if it had been confirmed that the person was ordinarily resident in England or Wales. That would place a significant burden on professionals delivering an assisted dying service.
Lord Empey (UUP)
In reference to Amendment 60, if I picked the Minister up correctly, she said that establishing where an individual was in the world would put a burden on the medical people involved. Surely if they are in touch with them, they can at least ask them where they are.
Baroness Merron (Lab)
I understand the point, but it is about verifying that.
Lord Falconer of Thoroton (Lab)
My Lords, I express my gratitude to everyone who has taken part in the debate. I make special mention of the noble Baroness, Lady Smith of Newnham, and the noble Lord, Lord Polak, who spoke about the death of their father and mother. Like everyone else, I am grateful for what may have been something that was quite difficult to contribute to the debate. I hope I have not left out anyone else out who has done that.
These amendments fall effectively into two categories. The first is the England and Wales category—what do you have to be in England and Wales to do?—and, secondly, and separately, in what circumstances is a face-to-face meeting between either the patient and the doctors or the patient and the panel required?
I will deal first with the position of England and Wales, raised by Amendment 60, from the noble Baroness, Lady Coffey. Currently, under the provisions of the Bill, the first declaration made by the patient, the second declaration made by the patient, the first assessment of the patient, the second assessment of the patient and assistance being given to the patient all have to take place in England and Wales. There was a range of other things that the noble Baroness wished to take place while the patient was in England and Wales—for example, switching from one doctor to another, which is a process. For my part, I think the Bill has broadly got right when you have to be in England and Wales. Having listened carefully to what the noble Baroness has said, I am not minded to suggest an amendment in relation to that, and I note that it was not picked up as an issue by other people.
The face-to-face issues were much more what the Committee, if I may say so, was interested in through the course of this debate. The effect of the debate has been, in effect, to identify four possibilities. First, Amendment 65 wants each of the occasions, namely the two doctors and the panel, to always involve a face-to-face meeting. Secondly, there should be a face-to-face meeting unless there are—I use this phrase without intending to pick up all the amendments—exceptional circumstances or practicability issues. Thirdly, the third amendment from the noble Lord, Lord Blencathra, which he referred to, is that there should be, to use his language, a “statutory protocol” defining where there can be remote meetings, accepting that the norm is face to face. Fourthly, we could simply rely on the existing provisions of the Bill, which is that codes of practice can be issued by the Minister under the various provisions of the Bill saying when face to face is appropriate and when it is not.
The testimony—that is what it felt like—given of cases where remote has gone wrong have enormous power and I think we are all aware of circumstances where face to face will lead to much greater and better communication. The other side of the coin, which was referred to by the noble Baronesses, Lady Pidgeon and Lady Hayman, my noble friends Lady Jay and Lady Blackstone and the noble Earl, Lord Howe, is that there will be circumstances where, if you insist on face to face, you are, in effect, excluding some people from this right when they should have it. There are arguments on both sides.
I come away with the strongest possible feeling that the Committee thinks that face to face where possible is best but that there will be circumstances where it is not appropriate. That brings me to my third and fourth possibilities. It is wrong and dangerous to try to use a phrase such as “reasonably practicable” or “exceptional”; more is required and guidance should be given. This is not a criticism—it is a congratulation—but I do not think the words “statutory protocol” are right, but I get from what the noble Lord, Lord Blencathra, is saying that he wants something that has the force of regulations or something similar that says, “This is what we have in mind”. Whether that is a code of practice or a statutory protocol, I am not sure. I am sure it is not what is called a protocol, but it might be something quite like that. I think the right course for me is to go away and bring back something that satisfies the Committee that there will be something—a statutory protocol or a code of guidance—that indicates when face to face is appropriate or should be the norm, but gives the circumstances where it would not be, because I get the sense of anxiety about that. I hope, in the light of that approach, noble Lords will feel able to withdraw or not to press their amendments.
Lord Harries of Pentregarth (CB)
I cannot quite understand why the noble and learned Lord is so unwilling to have in the Bill that the presumption should be face to face, with exceptions written into a protocol? Why is he objecting to having it that way round?
Lord Falconer of Thoroton (Lab)
As a lawyer, going for a presumption is wrong. I think the right thing to do is say something such as the norm is face to face, but there could be circumstances in which you may not do that. You should give maximum flexibility.
Lord Harper (Con)
Can I just illustrate, perhaps, to the noble and learned Lord why people are so nervous? In the Commons, at Second Reading and for much of the Committee stage, MPs were told that the panel would have to speak to the patient. Amendments were tabled subsequently—the ones I talked about—which then allowed the panel to accept pre-recorded video and waive hearing from the applicant entirely in those undefined exceptional circumstances. I absolutely accept the argument against a blanket position, but if there was a rebuttable presumption that it should be face to face and some circumstances were set out, which could be developed with case law, from listening to the debate, it seems that that would command widespread support from the Committee and would deal both with people’s concerns and, rightly, the patient-centred approach that the three noble Baronesses set out for noble Lords.
Lord Falconer of Thoroton (Lab)
In relation to the noble Lord’s point about the imposition of subsection (6), the Bill currently says that the panel
“must (subject to subsection (6)) hear from, and may question, the person to whom the referral relates”,
so it has to question the person, though not necessarily in person. Subsection (6), which he referred to, says:
“The duty … to hear from the person … does not apply if the panel is of the opinion that there are exceptional circumstances which justify not hearing from that person”.
That was added during Committee, because a Member of the Committee described the circumstances of his own mother, I think. That is why it happened. But I will note what the noble Lord says. I do not think I will go for a presumption, but I hear what he says.
Lord Harper (Con)
The noble and learned Lord talked about questioning; this is important, because I think he slightly misspoke. Subsection (5) says:
“Where the panel considers it appropriate for medical reasons, it may make provision for the use of pre-recorded audio or video material”.
The problem with that is that you lose any ability to ask questions, which is critical. That was added afterwards—after people had heard these concerns—and it went backwards. Will the noble and learned Lord reflect on that? If he is going to table an amendment, I ask him to make sure that it reflects the debate that he has heard this morning in your Lordships’ Committee.
Lord Falconer of Thoroton (Lab)
Obviously, you cannot ask questions under subsection (6), so it is exactly the same point. The point being made in subsections (5) and (6) is that the panel recognises that there are circumstances in which questioning is not possible. I do not know what additional point the noble Lord was making.
Lord Blencathra (Con)
I am grateful to the noble and learned Lord. I acknowledge that he has accepted that something else needs to be added to the Bill, possibly along the lines that I was suggesting. That comes on top of the dozen new clauses that he is already planning to add to the Bill, so I ask him to help me understand something. If the noble and learned Lord is therefore admitting that the Bill is fundamentally flawed, to a greater or lesser extent, and that it needs to be amended, how on earth can he reconcile that with what he said a couple of days ago? He said that he would seek to drive the Bill through, unamended from the House of Commons—the Bill that is so fundamentally flawed that he is now trying to move amendments to correct it. That said, I am grateful for his concession this morning.
Lord Falconer of Thoroton (Lab)
I would not look a gift horse in the mouth if I were the noble Lord. First, I do not regard accepting amendments in Committee of the House of Lords as indicating that a Bill is fundamentally flawed; I regard it as listening and making appropriate changes. Secondly, in relation to the question of the Parliament Act, the last thing I want is for this to happen through the Parliament Act. I want this House to do the job that it is supposed to do, which is do scrutiny and then send it back to the Commons.
In the debate on 8 January 2026, I gave in detail the reasons why I thought we were not going about it properly, and I thought that the House agreed with me when it said that we needed to move quicker. The problem is not that everybody does not have good ideas; the problem is that it is taking not just far too long but disproportionately long. My experience of the Lords is that we can do this, and we can do it much quicker than we are doing it and there still be quality. That was the point I made on 8 January and that I understood the House to have accepted.
Baroness O'Loan (CB)
My Lords, if I remember it correctly, the Motion that the noble and learned Lord put before the House on 8 January was a Motion that more time was required, not that the House needed to race through the Bill and proceed more quickly. The Motion did not say that we needed to move more quickly; it said that we needed more time. That is what the House agreed to.
Lord Falconer of Thoroton (Lab)
The Motion said that more time should be given so that we could complete the stages of the Bill so that it would have sufficient time to get back to the Commons. I was particularly impressed during that debate by what my friend, the noble and learned Baroness, Lady Butler-Sloss, said—that we have to “get through” this. We are not getting through it.
Baroness O'Loan (CB)
My Lords, the noble and learned Lord has made the point that I was making. We were saying—we agreed and did not vote against him—that more time was required. But the discussion earlier this morning was about the fact that the House must not rush this, because that we are talking about life and death, and in particular the life and death of very vulnerable and marginalised people who are living in poverty and all those things. These things require the kind of consideration which has occurred this morning, as reflected in the noble and learned Lord’s response.
Baroness Grey-Thompson (CB)
I understand the noble and learned Lord’s comments about “reasonably practicable” in relation to this group of amendments. But the Bill actually has “reasonably practicable” written many times—in Clauses 10, 11, 16, 18, 47 and 50—in relation to the length of time a doctor should take to write a written report. I have amendments to shorten that length of time. I am interested in why the noble and learned Lord does not think—I am sure he is going to say that we will discuss this when we get on to those groupings—that “reasonably practicable” is not suitable in this situation, but is suitable in situations such as the length of time it takes doctors to write a report?
Lord Falconer of Thoroton (Lab)
That is a very valid point in relation to this particular amendment. The reason I think some sort of regulatory process from the Secretary of State—a code of practice or something similar—is better is that you can give much more detail and many more examples. You should not be relying on just a particular two-word legal test.
Baroness Coffey (Con)
My Lords, this has been quite a revealing debate in many ways. In trying to go with the spirit of getting on with the Bill, I could have easily broken that group into just consideration about what should be physically in the country and what should be face to face. However, I thought bringing that debate together could have been, and has been, of benefit to your Lordships.
One thing that has come up, and the noble and learned Lord has recognised, is that the concept of face to face being largely default has been well received. There have been a few other issues, though. In her contribution, the noble Baroness, Lady Pidgeon, gave a series of examples where, I have been informed by barristers, it would be required for clinicians to conduct home visits.
I was particularly struck by several speeches: I am not going to repeat them all. The noble Baroness, Lady Keeley, spoke about something as straightforward as a will, and certainly the legal protections are there.
Going forward to Report, I am clear that I believe that a lot of the operation and activities of these panels should happen in this country, rather than the psychiatrist, the KC or whoever being abroad in Tenerife—never mind anybody else. I think it is not sufficient to rely simply on statutory guidance. I gave the example last week when we talked about Montgomery: the GMC only changed their guidance, as was referred to, five years after the legal ruling. It did not happen straight away. The other thing about statutory guidance is that it does not have to come to Parliament; it is simply what the Minister can put out. For me, there are deficiencies in that approach, although I understand the flexibility. The whole point is that—
Lord Falconer of Thoroton (Lab)
Whether it has to come to Parliament depends on the provisions, does it not?
Baroness Coffey (Con)
As it stands, there seems to be a variety around the Bill on whether or not there is that 40-day pre-laying. It just seems to vary. Standard legislation would not require it, unless Parliament or the Government inserted that specifically into the Bill.
Overall, there is still a lot to be discussed. I would like to seek a meeting with the Minister on the response that somehow Article 8 is engaged, linked to Article 14 and how Amendments 60 and 65 in particular are not operable in that regard. With that, I beg leave to withdraw Amendment 60.
Baroness Coffey
“(4) Artificial intelligence must not be used to carry out any functions in any section or schedule of this Act.”Member's explanatory statement
This amendment proposes that AI not to be used in the application of this Act.
Baroness Coffey (Con)
My Lords, I am conscious that I might be accused of preferring quill and pen than the latest technology in Amendment 66. In recognising how artificial intelligence is emerging, I thought I would put down a blunt amendment to allow us at least to have a debate. Inevitably, in a variety of legal and health situations, we will start to see artificial intelligence being used routinely. There was a recent legal ruling in which it turns out a judge had completely relied on AI and gave a completely inaccurate ruling based on it. This is not simply about what would be considered by medical practitioners.
I worry about judgment. We have already heard, reasonably, that trying to predict when somebody will pass away due to a terminal illness involves a bit of science but is largely an art. Perhaps I am being ungenerous in that regard. Certainly, in the DWP, we moved accelerated access to benefits from a six-month consideration to 12 months simply because, routinely, the NHS does not require its practitioners to assess six months; it is much more accurate at assessing 12 months. It is interesting that this Bill is focused on six months when, routinely, the NHS does not use that period. However, I am diverting slightly from the point of artificial intelligence.
I was somewhat interested in the previous debate, because there seemed to be a majority—I will not say a consensus—who felt that face to face was an important part of this happening in practice. But there are still a significant number of people who seem happy that we use a variety of technology for some of the interactions.
Forgive me for fast forwarding, but I see this whole issue becoming pretty routine. What I want to avoid is outsourcing. It strikes me how much people rely on Wikipedia and think that they are actually dealing with the Encyclopaedia Britannica, even though a lot of what is on Wikipedia is a complete load of garbage. What is even more worrying is that many of the AI mechanisms use sources such as Wikipedia, or simply put two and two together and come up with 22. I saw this, not that long ago, when I was trying to find something from when I had been on the Treasury Committee and interrogated the FCA about something. The first thing that came out of ChatGPT was that, somehow, I had become a non-executive director of the FCA—if only. That certainly was not the case. I am concerned that an overreliance on AI might start to happen in this regard.
I want to avoid a world of chatbots that removes the human element. That is why I keep coming back to the themes of face to face, being in this country and this having a personal element. I am conscious that the NHS and other practitioners, including legal practitioners, will continue to evolve—I am not stuck in some dinosaur age—but I feel that the issues that those of us concerned about the Bill have will continue. We completely understand why people might want to do this, but we want to make sure that the safeguards, particularly around coercion, are as safe as possible. That is why I have raised for debate the consideration of whether, as a matter of principle, artificial intelligence should not be used in the deployment of the future Act.
As I said, there may be evolution in medicine; we see that that is already happening. I do not know to what extent the Government have confidence in the use of AI in the diagnosis of lifespans. A new evolution in government is that AI is now starting to handle consultations. That might get tested in court at some point, to see whether it is a meaningful way to handle consultations—it is certainly a cost-efficient way to do so. My point is that, according to the Wednesbury rule, there is supposed to be proper consultation, not just a tick-box exercise.
I will not dwell on this, but I would be very interested to hear, from not only the sponsor but the Government, their consideration of artificial intelligence in relation to the practicality and operability of the Bill if it were to become law. I beg to move.
Baroness O’Loan (CB)
My Lords, I have put my name to Amendment 66, in the name of the noble Baroness, Lady Coffey. At present, the Bill makes no allowance for any restriction on the possibility of the use of non-human assessment and automated administration devices during the application and decision-making process for assisted death. Obviously, AI will be used for recording meetings and stuff like that—I am not a quill and paper person to that extent—but AI has already been proposed for use in killing patients in the Netherlands, where doctors are unwilling to participate.
The Data (Use and Access) Act 2025 established a new regulatory architecture for automated decision-making and data interoperability in the NHS. It provides that meaningful human involvement is maintained for significant decisions—decisions which may affect legal status, rights or health outcomes. Of course, assisted death would come within that definition.
That reflects the purpose of the NHS. We have talked about its constitution. I looked at the constitution and the guidance. It says that the purpose of the NHS is
“to improve our health and wellbeing, supporting us to keep mentally and physically well, to get better when we are ill and, when we cannot fully recover, to stay as well as we can to the end of our lives”.
I know that the noble and learned Lord, Lord Falconer, is going to put down an amendment suggesting that the constitution and guidance will have to be amended, but the current situation is that that is the purpose of the NHS. The assisted suicide of patients is certainly not provided for in the NHS, nor should AI be used in the crucial assessment and decision-making process for assisted dying, given the extreme difficulties in identifying coercion and assessing nuanced capacity, and the irreversible nature of death. What plans does the noble and learned Lord have to address these issues?
In the Commons, amendments were passed allowing the Secretary of State to regulate devices for self-administration. The amendment was not put to a vote; in fact, only seven votes were permitted by the Speaker on the more than 80 non-Leadbeater amendments. The Commons have accepted that devices will be used for self-administration. Of course, the assisted suicide Bill requires self-administration. Nothing in the Bill prohibits a device that uses AI to verify identity or capacity at the final moment. If a machine makes the final go/no-go decision based on an eye blink or a voice command, have we not outsourced the most lethal decision-making in a person’s life to technology? I have to ask: is this safe?
Public education campaigns on assisted suicide are explicitly allowed for in Clause 43. The Government have said that there will be an initial education campaign to ensure that health and social care staff are aware of the changes, and that there would likely be a need to provide information to a much wider pool of people, including all professionals who are providing or have recently provided health or social care to the person, as well as family members, friends, unpaid carers, other support organisations and charities. That controls only government activity. The other observation I would make is that I presume the public education campaign will inform families that they have no role in a person’s decision to choose assisted death, and that the first they may know of an assisted death is when they receive the phone call telling them that the person is dead. It is profoundly important that people know this.
There is nothing to prevent an AI chatbot or search algorithm helpfully informing a patient about assisted dying services and prioritising assisted dying over palliative care search results. By legalising this service, the Bill will feed the training data that makes these AIs suggest death as a solution. I would ask the noble and learned Lord, Lord Falconer, how he intends to police that situation.
There is also a risk of algorithmic bias. If prognostic AI is trained on biased datasets—we know the unreliability of the prognosis of life expectancy—it could disproportionately label certain demographics as terminal, subtly influencing the care options, including assisted dying, presented to them. The National Commission into the Regulation of AI in Healthcare established by the MHRA in 2025 is currently reviewing these risks to ensure that patient safety is at the heart of regulatory innovation. I ask the Minister: will that work cover assisted dying?
The AI Security Institute’s Frontier AI Trends Report in December 2025 highlights that:
“The persuasiveness of Al models is increasing with scale”,
and:
“Targeted post-training can increase persuasive capabilities further”.
In a healthcare context, this raises the risk of automated coercion, where the person interacting with a chatbot or an AI voice agent might be subtly persuaded towards certain end-of-life choices. The AISI has said that safeguards will not prevent all AI misuse. We have to remember that there will be financial incentives to provide assisted suicide; after all, the CEO of Marie Stopes received between £490,000 and £499,000 in 2024. There is big money, even though this will be charitable or NHS work. Clause 5 allows doctors to direct the person to where they can obtain information and have the preliminary discussion. That sort of information could be an AI or a chatbot at the present time.
Dr Sarah Hughes, giving evidence to the Lords Select Committee, said there was a real risk of “online coercion”. With newly developed AI functions and chatbots, we already know there are cases all around the world of individuals being coerced into all sorts of different behaviours, practices and decision-making. There is also an issue of misinformation around diagnosis and prognosis. Hannah van Kolfschooten questioned who has ultimate responsibility if the technology fails. She said:
“In traditional euthanasia settings, a doctor is accountable, but in AI-driven scenarios, accountability could become ambiguous, potentially resting between manufacturers, healthcare providers, and even the patient”.
AIs also have a record of encouraging suicide. We know that, and we have seen terrible cases among young people; they have no regard for human life.
Evidence shows that doctors suspect only 5% of elder abuse cases. Detecting subtle coercion requires, as was said in the previous group, professional judgment to interpret things such as non-verbal cues, body language and discomfort. AI systems are ill-equipped to handle these nuanced, non-quantifiable elements. It is imperative for trust in the system that the individual circumstances of each request for assisted death are recorded and are available for interrogation, or even potentially a criminal investigation, by the panel or another regulatory authority. The only insight as to what happened in the consulting room will come from these records. The patient will be dead. The current provision in the Bill does not provide any protection against the use of AI, which has algorithmic bias, to protect an individual in these circumstances. Can the noble and learned Lord, Lord Falconer, explain how he proposes to deal with these concerns?
Lord Carlile of Berriew (CB)
My Lords, I will add only a very short sentence to my noble friend’s excellent speech, and it is what AI says about AI. It says: “AI is technically capable of providing advice or information relating to suicide, but it is critically dangerous to rely on it for this purpose”. Enough said.
The Lord Bishop of Hereford
I thank the noble Baroness, Lady Coffey, for raising a very important issue in this amendment. However, I am concerned that, as it stands, as the noble Baroness said, this amendment is too blunt an instrument. It is important that we distinguish between AI tools and the more dangerous artificial general intelligence, or superintelligence. The use of AI in medical diagnostics in patient care is already commonplace. AI tools are currently used to read scans and X-rays and will frequently perform as well as, if not better than, clinicians. To exclude the use of AI altogether might deprive patients who are considering assisted dying of valuable diagnostic assistance and care at a very vulnerable time.
Lord Stevens of Birmingham (CB)
Essentially, I agree with the right reverend Prelate the Bishop of Hereford. I could almost leave it there, but I will briefly say, in the spirit of the amendments, that the tablers are right to raise general concerns about the possibility of abuse through bias—as we heard from the noble Baroness, Lady O’Loan—and hallucination. After all, we have had the first high-profile resignation of a public sector leader in the form of the chief constable of the West Midlands praying in aid the fabrication of a non-existent football match as the reason why Parliament was misled.
In addition to bias and hallucination, there is the risk of what is called scheming. The results from some of the LLMs—published, for example, in the journal Nature in October—show some pretty disturbing examples. In the article, headed “AI Models that Lie, Cheat, and Plot Murder”, there are examples where models have attempted to write self-propagating worms, fabricate legal documentation and leave hidden notes to future instances of themselves. The punchline, essentially, is that, in regard to some of these technologies,
“the world is in a lucky period in which models are smart enough to scheme but not smart enough to escape monitoring”.
That is scary because, in five years’ time, that may no longer be true. So there are good reasons for generalised concerns about AI and wanting to circumscribe the role it might play in this legislation.
However, for the reasons that others have mentioned— I suspect the noble Baroness, Lady Coffey, herself would accept this—this probing amendment is written too broadly. It says:
“Artificial intelligence must not be used to carry out any functions in any section or schedule of this Act”.
Given that, for example, under Clauses 5(5) and 12(2), a doctor has to discuss with a person their diagnosis, their prognosis, any treatments available, the likely effects of them, and palliative, hospice and other care, it is highly likely that those will be informed by machine learning. It will interpret, for example, CT scans or MRIs, and AI tools will personalise and optimise therapies, potentially with predictive AI for better prognosis. So, were this to come back on Report, there would be a good case for ensuring greater precision in the firepower that is aimed at this particular concern.
However, all that should not in any way excuse or divert us from an equivalent worry: we must not kid ourselves that the gold standard is human expert judgment on many of the questions posed by the Bill. As we discussed, Clause 2(1)(b) requires an assessment of whether somebody with a terminal illness will live longer than six months. Unfortunately, as we have heard, that turns out to be a clinically irrelevant threshold that is very hard for expert judgment to get right.
I have just pulled the data from a large study looking at 98,000 people across London over the last decade and at prognostic accuracy, and the answer was that clinicians were able to be accurate about whether somebody was going to live for two weeks with about 74% accuracy, and they were able to be accurate about whether somebody was going to live more than a year with 83% accuracy, but, in terms of being able to predict whether somebody is going to survive for weeks or months, accuracy was only 32%. So, whatever our concerns about AI, human expert judgment, which underpins the Bill, is itself highly fallible.
Lord Markham (Con)
To follow on from that, as my noble friend said right at the beginning, the amendment was put down in such a blunt fashion absolutely to stimulate this sort of debate. What has been really useful in this debate is finding that there is a broad degree of consensus that AI can be valuable as an input to decision-making, but it should not be used as the output: as the final decision-maker. As mentioned, AI can detect the progression of cancers and can probably do better prognosis or improve, especially over the time that we are looking at here, so that you can get better assessments of how long someone is likely to live.
On the AI in the chat box, there are very many instances where it could be very useful in terms of detecting coercion if it is talking to someone over quite a long period of time. Therefore, in all of this we see that, with inputs to the decision-making process, AI has a valuable part to play, but I think we would also absolutely agree that the final decision-maker in terms of an output clearly has to be a human; obviously they will be armed with the inputs from AI, but the human will make the final decision. I think that is what the Bill does, if I am correct, in that it is very clear that the decision-makers, the panels, the doctors and everything are those people, but at the same time—although I guess the Bill is silent on this—obviously it enables AI as an input.
I hope this debate is useful in that it shows a degree of consensus and that in this instance we probably have the right balance, but, again, I would be interested to hear from the Bill sponsor in his response whether that is the case.
Baroness Gerada (CB)
My Lords, under this amendment as it stands, we would have patients who could not have computerised records, because we have AI sitting behind every computer. The AI starts at the beginning. It starts with our telephone system, so, in fact, the patient would not even be able to use the telephone to access us; they or a relative would have to come in. They certainly would not be allowed to have computerised records, because of the digital and AI systems that we have in order to pick out diseases and to make sure that we are safely practising.
They also would not be able to have electronic prescribing, in many ways, because the pharmacy end too uses AI to make sure that patients are not being overmedicated and for drug interactions, et cetera, and, if they are using a computer system, AI is also used to digitally scribe consultations. So I understand the essence of this amendment, which I think, as many have said, is to not allow AI to decision-make somebody at the end of their life, but, as it stands, I have to warn noble Lords that it is unworkable in clinical practice.
Baroness Berridge (Con)
My Lords, I am grateful to my noble friend for laying such a broad amendment, and obviously I agree with much of what the right reverend Prelate said. It is interesting that this is coming straight after the debate on face-to-face conversations. We are all used to ticking the “I am not a robot” box, but AI now has the ability to create persons, and it is often very difficult if you are not face to face to judge whether the person on screen is actually a person. I cannot believe we have got there quite so quickly.
However, it is also important to consider about public confidence and understanding at the moment. This is, as we keep saying, such an important life-or-death decision. There is a lack of understanding and people are potentially worried about these implications, often with regard to employment but also other purposes. For instance, as I was preparing this, it made me reflect, as the noble Baroness, Lady Gerada, said, on how your GP uses AI. When Patchs told me recently that the NHS guidance was that I should not take an over-the-counter drug for more than two weeks, I queried it.
However, only yesterday, I thought: was that answer actually from my GP or was it from an AI tool sitting behind the system? We really need to be careful with the level of public understanding and awareness of its use. This use of AI is also one step on and connected to Clause 42, which relates to advertising. I am grateful that the noble and learned Lord is going to bring forward some amendments on that clause. I hope that the connection with AI, as well as the Online Safety Act 2023, have been considered. If I have understood the noble and learned Lord correctly, I am disappointed that we have had no assurance that those amendments will be with us by the end of Committee, when the noble and learned Lord gave evidence on 22 October last year and accepted that there was additional work to be done on Clause 42.
I said at Second Reading that the Bill is currently drafted for an analogue age. I am not wanting to take us back to some kind of quill and no-use-of-AI situation. Obviously, as other noble Lords have said, the Bill do not deal with the pressure or coercion not being from a human being. It also does not consider that coercion can now be more hidden with the use of AI. The Bill does not deal with people being able to learn to answer certain tools by watching YouTube. Therefore, we could be in a situation where someone who would not qualify if there was a face-to-face non-AI system could learn those answers and qualify.
There are also good studies to say that its use in GP practices has had some inaccuracies. In many circumstances, there is a lack of transparency and accountability in tracing where the decision has come from. We do not even understand the algorithms that are sending us advertisements for different shops, let alone how they could be connected to a decision such as this.
Finally, my biggest concern is that there will be a limited number of practitioners who will want to participate in this process. That has been accepted on numerous occasions in your Lordships House. I will quote from a public letter written on 12 June last year. All of Plymouth’s senior palliative medicine doctors were signatories to a letter warning us of the risks of the Bill and saying that the
“changes would significantly worsen the delivery of our current health services in Plymouth through the complexity of the conversations required when patients ask us about the option of assistance to die”.
That is relevant for two reasons. First, if we have a shortage of practitioners in parts of the country, such as the south-west if those doctors’ opposition to the Bill translates into not being involved, there may therefore be an increased temptation to resort to more use of AI. I hope that the noble and learned Lord or the Minister can help on this point.
Many of these systems—I am speaking as a layperson here—rely on data groups and information within the system: the learning is created from that. If you have a very small pool of practitioners and some form of AI being used, does that not affect the creation of the AI tool itself? I hope that I have explained that correctly. With such a small group doing it, will that not affect the technology itself?
Lord Deben (Con)
I come to this amendment with a good deal of suspicion. I am always worried when the House of Lords decides that it is getting worried about some new thing that is coming along, so we had better do something about it. The noble Baroness, Lady Coffey, explained that this was a broad demand in order that we should concentrate on the important bit. I recommend to those in the House who were not here for last night’s debate on super-clever AI to read it, because it explains why we should be concerned about this. If it will not embarrass him, I shall say that I hope the House will read with care the speech by the right reverend Prelate the Bishop of Hereford, which brought his scientific knowledge and moral concern together in a most interesting and perceptive way. If his quoting Saint Thomas Aquinas interests people, there is a remarkable book called Why Aquinas Matters Now, which is well worth reading in the context of this particular Bill.
Baroness Finlay of Llandaff (CB)
My Lords, in the previous debate we had an interesting discussion about the importance of face to face. I think the conclusion was that the noble and learned Lord, Lord Falconer, should bring forward amendments that would make face to face the default mechanism, while accepting that there would be exceptions. At that point, I raised the question of recorded statements made by someone who then could not speak. It is important to remember that speech can now be faked and can sound exactly like the person. I hope that, in drawing up those amendments, the noble and learned Lord will be able to encompass some protection to ensure that, when a presentation is made of a recording that seems to be in somebody’s voice and in their words, we are still protecting against abuse and coercion and against those with malintent who may have faked that. Unfortunately, we are already hearing stories of criminal activity where such fake voice recordings are used, and we find that people believe them as being from the person, when actually they have been part of a criminal activity. This amendment has been important—although I accept, of course, that it is only a probing amendment—because it has actually made us think on a much wider scale.
Baroness Fox of Buckley (Non-Afl)
My Lords, the Government’s 10-year health plan for England seeks to
“make the NHS the most AI-enabled health system in the world”.
Like others, I think that is an incredibly exciting prospect. I do not want it to be dystopian. I think that the right reverend Prelate the Bishop of Hereford makes an important point in warning us against going completely over the top. I think it is important that this amendment has been tabled, because it makes us think about what the possible problems are, which have been well expressed by others. Despite my excitement about what AI might do, even in terms of treatments—there are wonderful possibilities in terms of helping people to walk, what is happening with the brain, and so on—we do not want to be naive.
The question for the noble and learned Lord, Lord Falconer, is: as the NHS digitises and doctors become increasingly reliant on AI for notes and diagnostics, given that the diagnosis is so important in a life-or-death situation in this instance, how can we ensure that a time-poor doctor does not use AI as an assessment tool or a shortcut? We would be naive to imagine that that does not happen elsewhere; we would only have to think of politics. People now use AI to avoid doing research, in a wide range of instances, and I do not want that to be translated over.
As for the patients, algorithms are supremely impressive and can take things that have happened on Facebook or TikTok, from when you have been on a Teams meeting or Zoom—all sorts of indications—and detect chronic illness conversations. The algorithms can then push pro-assisted dying content such as the Switzerland adverts or positive end-of-life options. Interestingly, when discussing banning social media for under-16s, which I completely disapprove of, or bringing in the Online Safety Act, which I argued against, everybody kept saying, “Algorithms, oh my goodness, they can do all these things”. We should consider not that chatbots are malevolent but that AI tends to agree with people via the algorithms; to quote the title of a piece in Psychology Today, “When Everyone Has a Yes-Man in Their Pocket”. If you say that you are interested in something, they will just say, “Yes, here are your options”. That is something to be concerned about, and it will come up when we discuss advertising.
I finish with that BBC story from August of a Californian couple suing OpenAI over the death of their teenage son. They allege that ChatGPT encouraged him to take his own life, and they have produced the chat logs between Adam, who died last April, and ChatGPT that show him explaining his suicidal thoughts. They argue that the programme validated his most harmful and self-destructive thoughts. I am just saying that AI is a wonderful, man-made solution to many problems, but if we pass a Bill such as this without considering the potential negative possible outcomes, we would be being irresponsible.
Lord Hamilton of Epsom (Con)
My Lords, I have supported AI for as long as I can remember, and I think it is the future for this country. If we are looking for improvements in productivity, there is no doubt that we should look to the National Health Service and the public sector, where we can see AI having its greatest effect and improving the health of the economy of this country.
However, we are in early days with AI, although it has been with us for some time. We must be very careful not to rely on it for too many things which should be done by human beings. The noble Lord, Lord Stevens, has already referred to the appalling rate of misdiagnosis. We can look at these statistics and say, “Well, it is only a small number who are misdiagnosed”. Yes, but my noble friend Lord Polack was misdiagnosed as only having six months to live and he is still with us 32 years later. You must think about this, because if you get the situation with misdiagnosis badly wrong, it undermines the basis of this Bill. Therefore, we must be very careful that AI does not contribute to that as well.
I pay tribute to the right reverend Prelate. AI is having a tremendous effect in the health service and helping a large number of people to get better, and it may well be that AI introduces cures for people who are being written off by their doctors—perhaps wrongly. We must not dismiss AI, but we must be very wary about where it leads us. There will be an awful lot of bumps in the road before AI is something in which we can all have complete confidence and believe will deliver better outcomes than human beings.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, there are just a few remarks I would like to make. We live in an age where it is hard to get a human to interact with any more. We lift the phone and speak to a voice that says that if you want one thing, press 1, and if you want something else, press 2. I fear that this is what we are heading for: if you want death, just press a button.
I have no doubt that if this legislation is passed as it is, in the near future we will be heading towards AI assessment procedures. My concern is not where we start in this process, but where it leads to and where it ends.
I am informed that, in the Netherlands, it has been proposed to use AI to kill patients in cases where doctors are unwilling to participate. Indeed, it is suggested that AI could be less prone to human error. Surely, in crucial assessments and decision-making processes for a person seeking assisted suicide, AI could not identify subtle coercion and assess nuanced capacity, bearing in mind the irreversible nature of the outcome. There are concerns about the risk of coercion or encouragement by AI. It should be noted that, with the newly developed AI functions and chatbots, there are already cases globally of individuals being coerced into all sorts of different behaviours, practices and decision-making.
Clause 5 allows doctors to direct the person
“to where they can obtain information and have the preliminary discussion”.
That source of information could be AI or a chatbot. Is there anything in the Bill that will prevent this?
AI undermines accountability. If the technology fails, who bears responsibility? Traditionally in the health service, the doctor bears responsibility. If AI is used, who bears responsibility?
Baroness Lawlor (Con)
My Lords, to add to what has been said, AI is based on large language models, which involve big datasets. I ask your Lordships to consider whether such large datasets, based on assessing a snippet of data to assist diagnosis, are a good way of assessing individual patients. They were not designed to assess individual patients. Every doctor will tell you that each individual case is different, and that diagnosis can vary. I am very grateful to the noble Lord, Lord Stevens, for sharing the results of the 98,000 cases that were assessed for accuracy. Therefore, I am not sure that it is a suitable tool to assess and diagnose individual cases.
Lord Wolfson of Tredegar (Con)
My Lords, I approach this amendment in a largely exploratory spirit, because it raises an interesting and increasingly relevant question about the role artificial intelligence might play in the operation of legislation of this kind.
Much of what the Bill requires involves assessments of different natures. We have discussed a number of these at length in Committee, such as questions of capacity and voluntariness, and the presence or absence of coercion. These are judgments that are normally understood as being made by human decision-makers, who draw on their professional experience and have a direct interaction with the individual concerned. At the same time, this is 2026, and we are all aware that artificial intelligence is becoming more prevalent across the Civil Service and even in government departments. Sometimes, in relation to the latter, I am reminded of the Imelda Marcos line, “Better nouveau riche than no riche at all”—and perhaps better artificial intelligence than no intelligence at all. But the concern is that the use of AI is often incremental and not the result of a conscious policy decision or choice. In response to my noble friend, I am not aware of an entire judgment put together by artificial intelligence, but I am aware that sometimes, judgments have been found to dip into artificial intelligence to assist.
Baroness Merron (Lab)
My Lords, I thank noble Lords for their contributions on this debate on artificial intelligence. It follows the debate yesterday, as referred to by the noble Lord, Lord Deben. The purpose of Amendment 66, tabled by the noble Baroness, Lady Coffey, is to prohibit artificial intelligence from being used to carry out functions under any section of or schedule to the Bill. This amendment is likely to have major workability impacts that could render the Bill unworkable and/or undeliverable.
While this is a policy matter, I will pick up points and considerations that have been made on the use of AI in practice. Broadly, artificial intelligence is absolutely in use in a number of pathways. It was indeed referred to in the 10-year health plan, and the ways it is being used include imaging and diagnosis. As this amendment stands, it would preclude an improvement in speed and in quality of care for patients.
Following my comments on workability, the amendment would incur an administrative burden that is likely to increase over time. AI is increasingly used across the economy and public services, including in the NHS, as set out in the 10-year health plan. The effect of the amendment as drafted is very broad in prohibiting this use of AI from carrying out any functions under the Bill. In the future, when AI is integrated into NHS systems across the board, it may well be difficult or even impossible to quarantine systems that are used for functions under the Bill. Additionally, this may risk creating a parallel system where voluntary assisted dying services are left behind and are potentially less safe for patients.
Lord Falconer of Thoroton (Lab)
I am grateful to the noble Baroness, Lady Coffey, for raising artificial intelligence. There was, broadly, a consensus around the Committee, which the noble Baroness supported, that the amendment is much too blunt, but as she said, fairly, it gives us an opportunity to talk about AI. I will also pick up the right reverend Prelate the Bishop of Hereford’s contribution; he rightly said, as has been echoed around the Committee, that there have been huge benefits for patients from AI.
I think four concerns were raised during the debate. The first was: will AI affect decision-making? I think the underlying point there is that we do not want machines to make the decisions that are referred to in the Bill; we want human beings to make them. In particular, the decisions I have in mind are the decision of the first doctor, the decision of the second doctor, the decision of the panel, and the decision of the doctor, at the point that the assistance is being given, that the conditions are still satisfied. Everybody around the Chamber wants that to be decided by a doctor or a panel, depending on which it is, and I completely and unreservedly endorse and accept that.
Does that need to be made even clearer in the Bill? I will consider it, but I do not think that it does. The acid test for me is that if you fail to comply with your obligations as a doctor or as a panel, you can go to prison for up to five years. It is very difficult to imagine how you could put a machine in prison, so it is pretty clear that these decisions must be made by a human being. For my part and for everybody who supports the Bill, that must remain the position.
The second concern is advertising, which the noble Baroness, Lady Berridge, referred to. She is absolutely right. I have made it clear that I will bring forward amendments. Those amendments, which are almost finally drafted, make provision specifically in relation to digital advertising—they do not specifically refer to AI, but we need to address that in the advertising provision. I will lay those amendments so that the House can consider them.
The third concern is slightly generalised, which is that AI is very persuasive, particularly in persuading people to do things that they do not necessarily want to do. The first thing on that is that there is a wider societal requirement to address the pervasive impacts of AI in a whole range of things. We should all try to contribute to that. More focused on this is the question of the safeguards in the Bill, because they then become incredibly important. In particular, the safeguards require that there is doctor-to-patient discussion in relation to the decision for that patient, and they are specifically required in the preliminary conversation, the first conversation and the second conversation. It is those safeguards that one must see as the antidote to the persuasive aspect of AI, but I completely accept what people said on that.
The fourth issue, which was touched on very briefly, was the operation of devices. That, I think, referred to the fact that quite a number of medical devices can be operated by, for example, the blink of an eye or something quite minor. Again, that needs to be properly safeguarded. Those may not necessarily be AI problems but problems with other sorts of developments in technology.
I thank the noble Baroness, Lady Coffey, for raising this. We need to consider all the points she made. At the moment, apart from the advertising amendment, which I will bring forward, I am not sure that it requires amendment to the Bill.
Baroness Berridge (Con)
Is there a guarantee that we will see those amendments in Committee rather than on Report? That is important, because there is a very different procedure in Committee, in which we can go back and forth and query amendments.
Baroness Coffey (Con)
My Lords, it has been an interesting debate. I was struck by the question from the noble Baroness, Lady Finlay of Llandaff, about fake voices. That is an interesting thing for us to consider.
Yes, my amendment was quite blunt, but we once had a briefing—sorry, it sounds like I am going to name drop—at the Cabinet table; we had a whole session on it, telling us that artificial intelligence had learned to lie. A classic example is “I am not a robot”: artificial intelligence will, in effect, just press the element that says, “I’ve got accessibility issues”, and if you do that, you do not have to do any more verification. There is a whole series here. The noble Lord, Lord McCrea, referred to an article. It is worth reading AI and Ethics Volume 5 from last year.
I wondered if the Minister might raise—I hoped that she would—the commission by the MHRA, which was started last year, specifically considering artificial intelligence. If she has not already, I think it would be worth while sending an instruction to the MHRA to start considering this aspect.
Ultimately, although I appreciate that there are noble Lords who do not want us to talk about the detail of how this might work, I think it is critical that we as parliamentarians set out for the future of any potential guidance, SIs or whatever legal rulings what we expect or how we expect this Act to deploy.
There is no doubt that algorithmic bias is a concern. That is why, although I do not entirely agree with the noble and learned Lord that we might not revisit an amendment on Report referring to AI, I thank noble Lords for this debate and beg leave to withdraw the amendment.
Baroness Coffey (Con)
My Lords, I put in my opposition generally. Just as we said on the first day of debate, it is not certainly my intention to move a Division on this. We will leave these things to Report.
We have debated Clause 1 extensively but, as I said in my explanatory statement, I wanted the opportunity to potentially revisit certain issues, or to try to get some more answers on them if we felt they had not been covered. I know that on day one noble Lords thought I was filibustering by talking about Wales, but, for me, devolution is a really important part of the Bill, and I have to say that I was not satisfied by the Minister’s answers at the time.
Increasingly, pretty much every freedom of information request has been rejected, and I do not think that helps Parliament. The Cabinet Office tells us that the Government are forming policy on this issue in anticipation, but that it is not in the public interest to share that. I find that really challenging. It is no surprise that we have spent so much time on Clause 1; it is the key clause and let us not pretend otherwise. However, even the briefing pack for an official who gave oral evidence to your Lordships’ Select Committee— I did not put that FoI request in, but someone did—was turned down for release. That decision was made personally by the Justice Minister, again on the grounds that it was not in the public interest and “We’re only going to work with the sponsor”. I genuinely think we would make more progress if we had better understanding and more shared information as we consider one of the most significant changes to the law that we have had. However, I will not be pressing this to a Division.
Lord Rooker (Lab)
My Lords, I agree with Clause 1. If there was a vote on it, I would vote for it. I may not carry the Committee with me but, having sat through Committee and one day of Second Reading— I could not attend the first day—I feel we have reached the point where, if the Bill were a tree, we have dealt with the trunk. We have now got to a point where we look at the branches.
The Commons—this is a message to the Commons, in a way—needs to know that we can move at pace once we have the Bill sponsor’s reaction and proposals following the debate on Clause 1. I am absolutely convinced that control of the progress and speed of the Bill is now completely in the hands of my noble and learned friend, not in those of the Committee.
Lord Harper (Con)
My Lords, I had not intended to say anything, but I was provoked—in a nice way—by the noble Lord, Lord Rooker, and his advice, which was well meant, to the sponsor of the Bill, the noble and learned Lord, Lord Falconer. I agree with him, but I think a bit more work is required.
I referred earlier to the letter that the noble and learned Lord sent to Members of the House. I urge him to test his mailing list, because it did not go to all Members; I received a copy of it only from another Member, and it would be helpful if we all received a copy. I now hear from my noble friend Lord Deben that he has not received it at all.
I have two things to say. First, I absolutely agree with the noble Lord, Lord Rooker, about the Delegated Powers Committee’s recommendations. It was pretty scathing about the number of powers the Bill gives to Ministers with very little oversight. If I am being fair, the noble and learned Lord, Lord Falconer, has engaged extensively with the recommendations of the committee in what he has set out. That is the good bit.
But I do not think the noble and learned Lord has really taken on board the point the committee made because he has largely, as I see in his amendments, preserved the Bill’s delegated skeletal architecture. Rather than limiting executive power and putting safeguards and limits in the Bill, he has added in all sorts of things, such as scrutiny and consultation, at the back end. He has not actually got the point, which is that the Bill should not have those delegated powers in the first place. Exactly as the noble Lord, Lord Rooker, said, I humbly suggest accepting what the committee said and following its recommendations. That would be helpful.
The second point is about pace. The Delegated Powers Committee reported in September last year, and only half way through Committee we got a letter from the noble and learned Lord, Lord Falconer, setting out his response to it. My experience as a Minister was that if we had received the report from the Delegated Powers Committee, as the Minister I would have been expected to have my response ready at the start of Committee—or, frankly, Members of your Lordships’ House would have stood up and said some very disobliging things.
Baroness Hayter of Kentish Town (Lab)
The noble Lord would have had a whole department and civil servants behind him at that time.
Lord Harper (Con)
I have two points to make on that intervention from the noble Baroness. First, on several occasions the noble and learned Lord has made reference to quite a significant number of officials that he has had working with him, helping him draft clauses and so forth. If the argument is that that is still not enough resource, that rather supports my contention—which I have made from the beginning—that the extent and nature of this legislation makes it absolutely not suitable for a Private Member’s Bill, and it should have been a government Bill. As I said, the noble and learned Lord has had extensive support from not just one but a number of government departments in helping him draft it.
My second and final point is on the issues that have arisen so far in Committee, particularly the issues that have arisen on Clause 1, which I think is why it is relevant to bring it up on the Clause 1 stand part debate. The noble and learned Lord referenced them in his letter, but he has not yet been in a position to set out what his amendments are going to be. He said that he will make them available as soon as he possibly can. That is good, and I welcome that, but, until we see them, we are not in a position to know whether further amendments need to be tabled for later in Committee or on Report. I finish by saying that I agree with the noble Lord, Lord Rooker. The extent to which we can now make progress is going to be largely governed by the extent to which the noble and learned Lord the sponsor of the Bill engages with the very fair criticisms that have been made across the Committee. We will listen carefully to what he says in response to this debate and in subsequent groups.
Baroness Andrews (Lab)
My Lords, I think it is right, as my noble friend Lord Rooker said, that this clause stand part debate is an opportunity for a reset and a rethink about how we are approaching the Bill and the way we are prioritising the arguments. Where I slightly take issue with my noble friend is that I do not think it is helpful to apportion blame. We are where we are with this Bill now, and we are all under the clear impression and instruction that, if the Committee wants to change the Bill, whether those who oppose it or those who support it, we have to get it to Report so that we can do that and then send it back to the Commons improved and amended.
On the question of delegation, I worked with my noble friend Lord Blencathra—I will call him that—on the reports on delegated legislation, and they were extremely important. What we have discovered in this Bill, as the amendments have been put forward, is that there is a difficult balance to be achieved between what goes into the Bill on the principle and the design—our task in this House is to make every Bill workable—and what has been left to delegation. As a result of the nature of the Bill, the behavioural issues that are raised by it, and the extraordinary personal and exceptional circumstances when we are dealing with people in the last months of their life—which we should never lose sight of, no matter what we are debating and how technical and process-driven it is—we have to think about the balance between what is workable because it is in the Bill and will stand in law and what has to be left to delegation going forward and therefore can be amended as circumstances change. That is the situation the Australians find themselves in. We have a lot to learn, as we have already learned, from Australian medics who have told us how they are managing the Bill and what an extraordinary benefit it has been. That is on the public record.
All I would say, before my noble friend Lord Blencathra possibly opposes me, although I hope not, is that this is an opportunity to look at the amendments that are coming forward and the priorities we are attaching to them and whether we can triage them in some way. My noble friend Lord Rooker is right that a lot of these early amendments can fall away, because we have addressed the principle. Can we focus on what it will now take to agree to improve the Bill, so that we can have shared trust across the Committee that this is about improving the Bill and not delaying it to the point that it will never become law?
Baroness Falkner of Margravine (CB)
My Lords, I have a point related to the point made by the noble Lord, Lord Harper, about impact assessments. Noble Lords will be aware that I am a former chair of the Equality and Human Rights Commission. I gave evidence on this Bill when it was being examined in the other place. Once it was introduced in your Lordships’ House, I recused myself from the EHRC’s involvement on the Bill, as I anticipated participating on the basis of being a Member of this House. That is the background, should anyone detect any conflict of interest on my part. A senior EHRC commissioner, Alasdair Henderson, who is a barrister, has since represented the EHRC on this Bill.
On 22 January, nearly 60 Members, including me, wrote to the Minister calling on the Government to update their equality impact assessment. This was to pick up the argument from the EHRC—which was put nearly three months ago, so the Government have had a substantial amount of time to think about it—that the current EIA contains several gaps and focuses primarily on access to an assisted death rather than on safeguarding risks and the potential for coercion. That letter has been circulated to the whole House. Yesterday, I received a reply from the Minister declining the request. Parliament will receive an updated impact assessment and equality impact assessment only
“should the Bill receive Royal Assent”,
and
“once detailed implementation work has been completed”.
In other words, the Committee is being told that it must legislate blind.
Baroness Thornton (Lab)
I am slightly puzzled. I have of course read the Minister’s letters, but I am not quite sure why the noble Baroness is speaking about these in the middle of a discussion about clause 1 standing part. Is she supporting the clause standing part or not? Surely that is the debate we are supposed to be having.
Baroness Falkner of Margravine (CB)
My Lords, perhaps reference to the Companion will help reduce the noble Baroness’s confusion about my speech. The Companion says that, once the Chair has put the Question,
“a general debate on the clause may take place”.
I am highlighting problems with the clause. Clause 1 is the substance of the Bill and an equality impact assessment is fundamental to our understanding of whether it should stand part.
To come back to the letter, it refers to the possibility of generating comparative evidence on the wider matters, but that would not have produced sufficiently robust conclusions. The matter raised was that the EIA did not deal with any detail of all those certain protected characteristics because it focused on access to assisted dying. Access to assisted dying is not relevant to the safeguarding risks that we have all spent some eight days in Committee debating. The letter says:
“We intend to update both the Impact Assessment and the Equality Impact Assessment should the Bill receive Royal Assent, once detailed implementation work has been completed”.
That will be too little too late. It is of no assistance to Parliament in considering the Bill and its potential consequences. Indeed, the whole point of an EIA is that it is done before or at the time a decision is taken. I refer again to the Cabinet Office guide to making legislation. A failure to undertake a comprehensive EIA means a failure to comply with a public sector equality duty, as post hoc analysis cannot generally cure a failure to have due regard to equality implications at the time a decision is being made.
That is what the courts consistently emphasise. R (Blundell) v Secretary of State for Work and Pensions 2021 noted that post-decision equality analysis is not sufficient to fulfil the duty, as it is supposed to be a real, open-minded consideration of the equality implications, conducted with substance and rigour, not a rearguard box-ticking exercise.
In concluding, I say to the Government that an accurate assessment of how the Bill impacts people who share each of the nine protected characteristics does not betray that position of neutrality. In fact, it is the converse: withholding information is not an act of neutrality but the opposite of that.
The Constitution Committee published a report on the Bill on 11 September, lamenting that supporting documents, including the EIA, “were issued late” or were not available. In the other place, Ministers gave the excuse that the Bill was “highly dynamic” and likely to undergo significant changes during scrutiny, so it was important to wait until the committee concluded its work so that
“we know what it is that we are assessing the impact of”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee 30/1/25; col. 282.]
Now we are told that there is insufficient evidence to produce conclusions that are sufficiently robust. I suggest that the Minister review what both the EHRC and the letter submitted by 59 Members of this House have asked her to do and come back with some more positive news at an earlier date.
Lord Jackson of Peterborough (Con)
My Lords, I beg the indulgence of the Committee to raise what I think is an important point; I hope the Committee does not think it pedantic. I had not intended to speak but was prompted to by the excellent speech of the noble Baroness, Lady Falkner, and by my noble friend Lady Coffey’s reference to the lack of insight provided by the Government—I will not criticise the sponsor, the noble and learned Lord, Lord Falconer of Thoroton. This—our deliberations, scrutiny and oversight of the Bill—is a moveable feast, so we need information in real time.
My specific point is not just about freedom of information but about Written Questions that the Government have received and not answered. On 1 December 2025 my noble friend Lord Kempsell asked His Majesty’s Government a very reasonable Question. He asked, with regard to the Bill and its impact assessment,
“what assessment they have made of the effectiveness of judicial approval as a safeguard in countries with assisted suicide regimes, including the proportion of applications refused in those countries and the reasons for refusal”.
Two months on, that Question has not been answered. That is unacceptable, because scrutiny and oversight require us to have all the information in our hands, including comparative legal, regulatory and medical regimes.
By comparison, the very sensible Question from the noble Viscount, Lord Stansgate—I do not want to embarrass him because he is in the Chair—about the use of the Parliament Act was asked on 26 January and answered promptly on 29 January. The point is that there should be equality and a level playing field on Questions asked, irrespective of the position on the Bill of the noble Lord asking it.
Lord Blencathra (Con)
I am another Member who had not intended to say a single word on whether the clause should stand part; I am rather relaxed about it. The Government Whips must blame their noble friend Lord Rooker, who provoked me into commenting because I agree, once again, with every single wise word he said.
The noble Lord referenced the Delegated Powers Committee, of which he was a distinguished member at one point. I was the chair of the committee when we produced the Democracy Denied? report. It highlighted the fact that every Government over the past 30 years—Tory, Labour, Conservative-Lib Dem and Conservative again—took more and more powers away from Parliament via delegated powers. The delegated powers in the Bill are excessive and have rightly been criticised.
The noble Baroness is also right that no Government in any democracy in the world can function unless there are delegated powers; not everything can be in Bills. The questions here are: how many delegated powers are appropriate; and what will they contain? The trouble is that we have more than 40—48, I think—possible delegated powers, including Henry VIII powers. That seems excessive.
I pay tribute to the noble and learned Lord, Lord Falconer, for producing some amendments that would implement the delegated powers recommendations, but I think he knows that if he did not produce them, this House, on Report, would implement every single one of the delegated powers recommendations; we would gut those bits of the Bill that did not implement them. So, although he has generously provided some amendments regarding the delegated powers recommendations, he knows full well that this House will implement all of them in any case.
That is all I want to say on the Bill. Delegated powers under all Governments have been increasing and ought to be diminished. Although I have some concerns about the contents of the Bill, I have many more concerns about the 48 powers that will be written by civil servants in the Department of Health. At the moment, they are unable to tell the difference between a man and a woman; I do not want them writing up how I will die in future.
Lord Polak (Con)
My Lords, I apologise to the Committee for intervening, but I have waited—we are now in our eighth week, I think. I have three amendments coming up in the next group but one. I have to be in synagogue at 4.30 pm so I will not be able to speak to them, sadly; I had short speeches on them but I thought that, as a courtesy, I should let the Committee know that I will not be here to make them.
Lord Falconer of Thoroton (Lab)
The noble Lord notified me of that beforehand; I thank him greatly for his courtesy.
May I briefly refer to the contents of the debate? First, the noble Baroness mentioned devolution. I have nothing to add in relation to devolution, but it felt like she was aiming more at the Government than at me. I am very supportive of the Government in this respect, but I had to say something in relation to that.
I will focus primarily on what my noble friend Lord Rooker said. I do not say this without thinking about it. I have the greatest respect for my noble friend, having been in government—though not as long as him, because I was sacked three years before he was sacked, and he was sacked only because the electorate replaced the Labour Government with a Conservative Government. He survived throughout the whole thing.
My noble friend is, in broad outline, right when he says that Clause 1 contains the spine—the trunk—of the Bill. I believe that this moment very much represents an opportunity for us as a House to see whether there is a way to get through this in time to send the Bill back. I completely accept what my noble friend said about my responsibility for bringing forward, as quickly and as well as possible, the areas where he was kind enough to say that I had been clear about my amendments. So I welcome the door that my noble friend has opened. I am more than willing, in relation to each of the areas where I have identified that I am willing to move, to sit down and try to agree, as much as possible, what those movements should be. I am absolutely sure that we will not agree on everything, but we can determine the things on which we do not agree on Report. So I welcome enthusiastically what my noble friend said about the way forward.
May I deal briefly with what the noble Baroness, Lady Falkner, said? Obviously, I am not responsible for either the impact assessment or the equality impact assessment. I must say, having read the points made by the commissioner of the EHRC, I think that the Government are right: it does not justify either a new impact assessment or a new equality assessment. The Government have been absolutely clear on why they think that, in principle, the Bill does not offend against the convention or the Human Rights Act. They have also been incredibly helpful, through Ministers, in saying where they think amendments might give rise to problems. It is perfectly legitimate for the Government to say, “We’re worried about amendments” but not to introduce a whole new assessment in relation to them.
Baroness Falkner of Margravine (CB)
Does the noble and learned Lord agree that, when courts in the United Kingdom rule that the public sector equality duty cannot be an afterthought—that it has to be complied with throughout and that Parliament needs to be aware of changes in circumstances or new issues that come up—it needs to be abided by? I am sorry; I cannot remember the title of the court case I referenced, but I am sure the noble and learned Lord will be able to find it in Hansard.
Lord Falconer of Thoroton (Lab)
I am well aware of the court case. It does not justify a new equality assessment in this case.
Baroness Falkner of Margravine (CB)
I was talking about the applicability of the public sector equality duty.
Lord Falconer of Thoroton (Lab)
I do not think that it justifies a new equality assessment. The thing about equality assessments is that lawyers can constantly write to clients and say, “You haven’t considered this and you haven’t considered that”. Having read in detail the equality assessment, I say that it deals properly and adequately with the issues.
Baroness Butler-Sloss (CB)
My Lords, I wonder whether it would be possible to get to the next group of amendments.
Lord Harper
Member’s explanatory statement
This amendment is intended to include those who suffer unbearable injuries likely to result in death and will be particularly relevant to military personnel and those suffering industrial injuries.
Lord Harper (Con)
My Lords, in moving my Amendment 70, I will also speak to my Amendment 78 and to Amendment 829 from my noble friend Lord Sandhurst. The first two amendments were originally tabled in the name of the noble Lord, Lord Hendy, who was unable to be here last week—although we did not get to them then—so I have taken them over in my name.
I will explain to noble Lords why they have been tabled. They are responding to concerns raised by David Green, a barrister specialising in industrial disease cases, and Michael Rawlinson KC, who wrote to a number of Peers, alerting us to the fact that the current drafting of the Bill can negatively affect some victims of occupational diseases. I will set out that concern and then the noble and learned Lord, Lord Falconer, can, I hope, respond to it in a more detailed way than he did in the letter that he circulated to Peers in the past day or so. I will also raise a couple of related issues that we will come to later in our debates and that concern similar issues.
The reference in the amendments is to “injuries” or “disease” that people get during their working life. The reason for including those words is to raise the following issue. If victims of occupational diseases opt for assisted suicide, their dependants, under my reading of it, would probably lose their right to sue whoever caused their disease under the Fatal Accidents Act 1976, unless this Bill specifically provided otherwise, which it does not currently.
I will give noble Lords an idea of the size of the issue. In 2023, 2,218 people in Britain died of mesothelioma, which is the prime fatal occupational disease. It is a fatal cancer caused exclusively by asbestos. By way of comparison, that is considerably more than the 1,624 road deaths that year and we know how seriously the Government take that issue; they have just published an entire road safety strategy to reduce that number. Many more died of lung cancer with asbestos as a causative factor, or of respiratory failure secondary to asbestosis or pleural thickening, or of other occupational diseases.
Since virtually all instances of mesothelioma are caused by asbestos exposure, and most asbestos exposure was occupational, most victims can sue a former employer—in reality usually represented by an insurer. The damages recovered are an important way of paying for medical and nursing care and, importantly, of providing for surviving dependants. Claims arising from these occupational diseases can be pursued during the lifetime of the victim or by their families after their death under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. A good deal of claims are pursued after death in this way for the benefit of families, partly because the prognosis following a diagnosis of mesothelioma is, sadly, relatively short. That is why so many families have to seek the damages rather than the victim being able to do so.
The key point is that the dependants of a deceased person can sue if, and only if,
“death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages”.
That is in Section 1(1) of the Fatal Accidents Act. The requirement is that the breach of duties caused the death, but the law that has developed on that section requires an unbroken chain of causation between the defendant’s breach of duty and the death if the dependants of the deceased are to recover damages. In general, an individual’s decision to end their life by suicide breaks the chain of causation between a defendant’s earlier breach of duty and the death. In other words, the law considers that the death has been caused by the choice of the victim and not by the negligence of the defendant.
There are narrow exceptions to this rule—for example, where the defendant’s breach was of a duty to prevent suicide, as it was in the Reeves case, or where the defendant causes a psychiatric injury that itself causes the suicide. But where an individual has full capacity—we know that they must have if they have used this Bill, if it becomes an Act, because we have debated that at length—and the defendant’s duty was decades in the past, the common law would regard a freely made choice to end their life as a novus actus interveniens. Forgive me if I mispronounced that, not being a lawyer, as I have said on many occasions. It is a new and different cause, breaking the chain of causation.
That would mean that the person who died of fatal mesothelioma would have their cause of death recorded by the coroner as an industrial disease, but Clause 38 as drafted makes provision for the cause of death in these cases to be recorded for coronial and certification purposes as an assisted death and excludes this cause from the category of unnatural deaths, meaning that there is no inquest. That means that the assisted deaths will necessarily not be certificated as being caused by industrial disease, even if that were the cause of the terminal illness that led the deceased to be eligible for an assisted death.
That means that, under common law and the Fatal Accidents Act, it would break the chain of causation between the former employer’s negligence and the victim’s ultimate death. That means that a victim of an occupational cancer with a limited life expectancy who would meet the criteria in the Bill—and who would probably face a painful and unpleasant death, even though that is not a criterion in the Bill, as we have debated—has a dilemma. They have a choice between prolonging their suffering but preserving their family’s right to damages and ending their suffering but losing a right potentially worth hundreds of thousands of pounds to the people they leave behind. At the moment, that is not dealt with anywhere in the Bill.
I have a specific question about that, and I will refer in a minute to what the noble and learned Lord said in his letter. But I also want to ask whether there are other areas where similar issues have not been thought about. Two come to mind, the first of which is members of the Armed Forces. I tabled an amendment, which will come up later, because the compensation schemes in the Armed Forces again would not, in my understanding, pay out if somebody got an occupational disease because of their military service. If they were to seek an assisted suicide, that would preclude them and their dependants from receiving compensation under that scheme. That is even more particularly a failure given the duty of care that the state owes to those who put their lives at risk on its behalf.
I would also be interested in understanding the interaction between this and the Government’s statutory diffuse mesothelioma payment scheme. In cases where there is no employer or insurer still in existence, or they cannot be identified, there is a statutory scheme, which I know a bit about; I took the regulations through Parliament as a Minister in the Department for Work and Pensions. That pays out on diagnosis. It means, potentially, someone whose employer was still around and on the hook who sought an assisted suicide would do themselves or their dependants out of compensation, whereas somebody whose employer or insurer was not around or not traceable and who qualified under the statutory scheme, which is paid out on diagnosis, would actually not do themselves— I think—out of the compensation. That seems an invidious position based on complete chance.
I do not know whether that has been thought about by the sponsors of the Bill. I would be interested to know the specific answers to those questions and whether there are other areas like this which have not been considered. If this had been a government Bill, as part of the process, other government departments would have looked at it, thought about these issues and would have made sure they were dealt with.
My final point is that the noble and learned Lord referenced this and dealt with it a bit in the letter that he circulated. He thanked my noble friend Lord Sandhurst and the noble Lord, Lord Hendy—whose name, as I said, was originally on these amendments—for their conversations. He said that he had tabled amendments to Clause 47, the reporting section of this Bill, which would require an early report about the impact. I welcome that, but I do not think it goes far enough.
If this Bill goes on to the statute book, there will be people whose legal position will be put at risk and damaged by what is in it. That is not going to be remedied by a report. If the report comes out and says “Yes, there is a problem”, it will require further primary legislation to fix it. It would be better if we understood what the issue is now and, if there is an issue, we should make sure there is an amendment tabled for Report which would deal with it—both for the Fatal Accidents Act and members of the Armed Forces.
In this area, it would be helpful if—I do not think this breaches the Government’s neutral position on the Bill—any other similar areas were identified so that we could deal with them with amendments on Report. That would be welcome. That was my purpose in tabling these two amendments. It is a very important area, and I look forward in due course to the answers from the noble and learned Lord, Lord Falconer. I beg to move.
Lord Sandhurst (Con)
My Lords, I will follow my noble friend and, I hope, be reasonably concise.
I asked for my Amendment 829 to be grouped with these amendments as it covers the same substantive ground. It was helpful that, about a fortnight ago, with the noble Lord, Lord Hendy, I met the noble and learned Lord, and we discussed this situation. Broadly speaking, there was acceptance. As I understand it, the sponsor of this Bill will be bringing forward an amendment which will tidy up various loose ends. The word “review” will be changed to “assessment”, there will be reference to victims of occupational diseases and one or two other tidying-up matters.
As has been explained—I can do this briefly, but it is important—as the Bill is drafted, it is highly probable that a victim of an occupational disease, such as asbestosis caused by the negligence of some tortfeasor, will, if they go down the assisted dying route, lose the right to recover damages for the injury that has put them in the position where they wish to die. This will also mean that their heirs and successors—their family—will lose that right to the Fatal Accidents Act claim.
If someone is suffering from a horrible illness, they may decide that they cannot bear it any longer and that they wish to terminate their life just a few months before the end. It would be quite wrong if their family and dependants, who deserve the money to cover themselves for the whole of the life that that person would have enjoyed but for the injury that created the asbestosis, should lose that entitlement to compensation because the victim has gone down the route of assisted dying. As the law stands—it has been to the Supreme Court or the House of Lords not in this context exactly but in others—it is quite clear that this would be a break in the chain of causation. It seems such to me and to others who are interested in this field.
Lord Hendy (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Sandhurst, and I am particularly grateful to the noble Lord, Lord Harper, for advancing Amendments 70 and 78, which I drafted. Unfortunately, I was unable to be here last week when I thought they would be debated. I disagree with nothing that the noble Lords, Lord Harper and Lord Sandhurst, said.
The purpose of Amendments 70 and 78 was to broaden the definition of “disease” to include “injuries”. It is completely illogical that people who are facing death within six months because of some untoward event, such as contracting an illness, being hit by a car or suffering an injury at work, should not be in the same position. One thinks about injuries at work, in particular: if inhalation of asbestos fibre, silica or cotton results in asbestosis, silicosis, byssinosis or mesothelioma, they would be covered by the legislation currently proposed. But inhalation of a poisonous gas at work, causing an injury that is likely to result in death within six months, would not be covered. There does not seem to be a logical distinction there.
The law also does not regard there being a distinction. The common law of negligence requires one not to harm someone else, whether by an injury or causing that person to contract an illness. That is particularly evident in the field that the noble Lord, Lord Harper, developed; namely, injury at work. The Health and Safety at Work etc. Act 1974, the Workplace (Health, Safety and Welfare) Regulations 1992 and the common law of workplace negligence all require that the employer keeps the workplace safe and they make no distinction between whether the danger arises from a risk of injury, such as getting an arm mangled in a machine, or the risk of disease, by the inhalation of noxious particles causing lung disease. There is no logical distinction to me and it would be right for the Bill to extend the scope of “disease”—illness and disease are not defined in the Bill—to cover “illness” as well.
I turn to the main point that the noble Lords, Lord Harper and Lord Sandhurst, developed. The risk, as the noble Lords, Lord Sandhurst and Lord Carlile, put in their explanatory statement and which the noble Lord, Lord Sandhurst, developed, is that the dependants
“will probably lose their right under the Fatal Accidents Act 1976 to sue the alleged tortfeasor said to have caused the disease, unless the Bill specifically provides otherwise (which currently it does not)”.
I agree with his legal analysis. It is likely that insurers will say, “No, the cause of death here was not the underlying mesothelioma. It was the fact that this person opted for an assisted death”.
The noble Lord developed the consequences for the family. I just want to add: what about the consequences for the injured person? Are they going to think to themselves, “Well, if I opt for an assisted death, I’m going to deprive my family of extensive damages that they will not enjoy”? Of course there will be considerable pressure on that person to say, “I’m going to put up with the suffering as long as I can until I die to make sure that my family get the money”. I do not want to be rude to insurance companies, but they have to do what they can to safeguard their assets and avoid paying out what they do not need to pay out; they will fight these cases. Therefore, it seems important that the Bill, to quote those words, “specifically provides otherwise”, which it does not currently.
I am very grateful for the interview that I had with my noble and learned friend Lord Falconer and the noble Lord, Lord Sandhurst, to discuss these matters a week or so ago. I had mistakenly thought that the power of my oratory was such that my noble friend was convinced by my argument, but he was not. It is quite clear from his Amendment 718C, which he has tabled today, that he does not accept that the Bill should provide a measure that would protect the victim in the circumstances that we are discussing.
The noble Baroness, Lady Finlay of Llandaff, and I tabled Amendment 717, which is obviously not before the Committee today, which seeks to redress this by requiring that the coroner records that the cause of death was the underlying disease, while noting that the death was one by assisted dying. I do not know whether that would go far enough to protect these victims from the insurers who claim that the death was not caused by the underlying disease, but it goes a bit further than the amendment proposed by the noble Lords, Lord Sandhurst and Lord Carlile. In my view, it is essential that the Bill protects against the danger that I have outlined.
Lord Blencathra (Con)
My Lords, I am very concerned by my noble friend Lord Harper’s amendment to extend the Bill’s definition of terminal illness to include simply the one word, “injuries”. I agree entirely with my noble friend Lord Sandhurst and with what the noble and learned Lord, Lord Falconer, may propose to ensure that those who have suffered an industrial injury are not deprived of their rightful compensation. I support entirely what the noble Lord, Lord Hendy, said on that, but I disagreed with his general thesis that the Bill should be extended to include all other injuries, because that could take us in a rather dangerous direction.
We all know that some injuries are awfully catastrophic, relentlessly painful and leave no prospect of meaningful recovery. For those individuals, the desire for control over the timing and manner of their death is understandable and deeply felt. If the law permits assisted death for terminal illness, it is in some ways emotionally coherent to ask why a grievous and irreversible injury that will inevitably lead to death should be treated differently. I think the amendment from my noble friend and the suggestion of the noble Lord, Lord Hendy, is born of a humane impulse: to extend compassion to a group whose suffering can be as severe as that of the terminally ill. However, compassion must be married to clarity and caution when Parliament contemplates measures that permit an irreversible outcome. Extending the definition to “injuries” raises serious legal, clinical and ethical problems. I will set out the principal flaws and risks that I see flowing from the proposed change.
First, the term “injury” is legally and clinically vague. What counts as an “injury”? Does the word encompass acute trauma, chronic sequelae, surgical complications, other serious harm, or the long-term consequences of an earlier wound? Without precise limits, the category could sweep far beyond the narrow cohort the amendment’s proponents intend. Vagueness at this threshold invites inconsistent application and litigation.
Secondly, I suggest that the proposed threshold—that the injury be “reasonably expected to result in death”—is problematic. Prognosis after severe injury is often uncertain, as it is with terminal illnesses, and can change with treatment, rehabilitation and time. Modern trauma care, reconstructive surgery and rehabilitation can alter trajectories in ways that are difficult to predict at the bedside. Using “reasonably expected to result in death” without a clear evidential standard hands clinicians wide discretion and risks premature decisions made on the basis of an evolving clinical picture.
Thirdly, there is a real danger of premature decisions in acute settings. Many catastrophic injuries occur in emergency contexts where prognosis is evolving and where immediate stabilisation, surgery or intensive rehabilitation may change outcomes. Allowing assisted death on the basis of an early prognosis risks decisions taken before full treatment options have been explored and before the patient has had the opportunity to adapt to new circumstances or to benefit from specialist rehabilitation.
I will not talk about civil law and compensation, because that has already been expertly covered by my noble friends and the noble Lord, Lord Hendy. My noble friend also mentioned the coronial and investigatory consequences which arise, so I will not elaborate on those.
There is a “slippery slope” argument here. Once “injuries” are included—just that one, simple word—pressure may grow to widen eligibility further to chronic disability, psychiatric consequences or non-combat trauma. Experience from other jurisdictions shows how initial expansions can lead to broader reinterpretation over time. Parliament must be wary of opening a door that cannot easily be closed.
The clinical complexity of catastrophic injury demands multidisciplinary expertise. This is not one GP giving an opinion here. Assessing such cases properly would require trauma surgeons, rehabilitation specialists, pain teams, psychiatrists and a whole range of different medical specialities. The Bill’s processes must ensure that such expertise is mandatory before any irreversible step is taken, otherwise we risk decisions being made without the full range of clinical knowledge that these cases demand.
In conclusion, if Parliament is to consider injuries within scope, it must do so with surgical precision, so to speak. It needs narrow definitions, higher evidential standards, mandatory specialist review, and explicit protections for families and compensation rights; only then can we balance mercy with the safeguards that such irreversible decisions demand. I urge the House to reflect carefully on the human impulse behind this amendment and on the legal and clinical realities that make adding it to the Bill as currently drafted—with just one word, “injuries”, as my noble friend proposes—deeply problematic.
Lord Carlile of Berriew (CB)
My Lords, I return us to Amendment 829, to which I put my name and which was moved by the noble Lord, Lord Sandhurst. I added my name because I share experience with the noble Lords, Lord Hendy and Lord Sandhurst. We have all seen cases in which a potentially huge claim arises under the Fatal Accidents Act which will provide a family with a payment for their dependency on the deceased for many years to come, so these are very substantial claims.
Probably all three of us have done cases for both claimants and trade unions on the one side, and for insurance companies on the other. Insurance companies are very business-like and accurate, but they are not social services organisations. One question they ask their counsel—particularly their leading counsel, their KC—in such cases is, “Are we liable to pay? Is there a point we can make, saying that it does not arise because the death was caused by some other means?” There have been many cases in which novus actus interveniens, which the noble Lord, Lord Harper, referred to earlier, has been cited as a reason for not paying.
Lord Empey (UUP)
My Lords, this has been a very interesting debate. Many Members perhaps do not appreciate the extent of the potential, and the length of time over which that potential could remain open.
When I was Minister for Enterprise in Belfast and represented Belfast East as an elected Member, that area had vast numbers of people suffering from asbestosis, mesothelioma, pleural plaques and so on, because it was an industrial area. We had shipbuilding, aircraft-building and electrical work, and asbestos was involved in wiring. The workforce used to play snowballs with it; that was the extent of it.
What emerged—and this is the important point, as I am sure the noble and learned Lord, Lord Falconer, will understand—is that first, a lot of companies, such as Turner & Newell, a very famous company, had gone out of business and, in some cases, their insurers had gone with them because of the extent of the claims. What people need to understand, and the reason why the Northern Ireland Government got involved, is that, in some cases, the state had owned those companies at one point, so the state was the employer. Therefore, there was a direct line of liability between the client, the company and, ultimately, the state. Now, the state has owned a number of businesses on and off over the years, all over the UK. This is not confined to asbestosis or related diseases; as the noble Lord, Lord Harper, mentioned, there is the whole question of the Armed Forces, for example.
To give a sense of the spread of all this, it can take up to 30 years before a disease such as asbestosis becomes obvious, and for mesothelioma and many of these diseases, there is no cure; it is very brutal, and it can be very quick. It emerged that, when workers came home, their clothing passed the asbestos on to their spouses and children. I remember many years ago setting money aside, up to 2050, to cover potential claims arising from the state having owned parts of some companies over the years. So in the absence of any insurer or employer, the state ended up in that position.
These amendments have opened up a whole new frontier that we have to get sorted out. The risk, obviously, is that those dependants will therefore have absolutely no recompense: not only will their relative have died a pretty brutal death—as the noble Lord, Lord Hendy, knows from his experience—but they will be left destitute. This needs sorting out.
Baroness Finlay of Llandaff (CB)
I am most grateful to the noble Lord, Lord Hendy, with whom I have had conversations going back to last September. I have looked after many patients dying of mesothelioma, and it seemed to be a loophole if the chain of causation was not completely intact.
We had advice in several calls from extremely wise sources—I will not list them all—and I learned a great deal about the legal side and the Fatal Accidents Act. I have some questions for the noble and learned Lord, whom I met with yesterday. He assured me that he would be bringing forward amendments, but unfortunately, I did not see them at the time; it was only much later that they appeared in my inbox. I have not been able to go through them in detail to examine the precise wording.
The concern is that unless this is watertight, these companies will wriggle out of any type of compensation. Therefore, what is the position of coronial oversight in these cases, where perhaps even the diagnosis might be questioned by a company, and it could be difficult for a family to provide the evidence it might be demanding? One does not know. Also, what is the position regarding the life insurance policy of the individual when they have an industrial disease and there is a chain of causation? They might be eligible, one hopes, for compensation. That needs to be followed through. However, somebody could claim that in some way, the chain of causation had been broken.
Baroness O'Loan (CB)
My Lords, I express my appreciation to the noble Lords, Lord Hendy and Lord Harper, for bringing these matters to our attention. I had prepared a speech describing the awful situation of mesothelioma, et cetera. I will not talk about that but will just say a couple of other things.
This has clearly identified a huge gap in provision in this legislation: a Bill is being passed that may have consequences it does not provide for in any way. I am thinking in particular of the Fatal Accidents Act: people are dying of these industrial diseases, including military victims. I had no idea that military victims would lose compensation in that situation. I am very grateful to them for identifying such a significant gap. This is very important for members of the Armed Forces, because many of them suffer from mental illnesses as a consequence of their service, in addition to any other condition from which they may suffer. That always makes life harder for them in trying to negotiate their way through and make decisions of such a profound kind. The noble Baroness, Lady Finlay, mentioned the problem with insurance policies and suicides. Most insurance companies will pay out after a suicide, provided that the minimum time has elapsed since taking out the policy. If someone has an assisted suicide, we do not quite know how that will affect their insurance policy; but it now appears that if the underlying cause of death—the terminal illness which led to the granting of assisted suicide—is something such as cancer, that may send the insurer straight back to find out what underlying habits were disclosed, such as the person being a smoker. It all becomes enormously complicated for the person suffering from a terminal illness who is trying to decide whether to seek an assisted death. There is no provision in this legislation for consequences for their families in situations such as this.
Baroness Grey-Thompson (CB)
My Lords, this is a really interesting group of amendments, and it has probably raised more questions for me than it has answered. When we talk about injury, I immediately think about people who have had a spinal cord injury and who have become a quadriplegic or a paraplegic.
By the very nature of my former career, I know a lot of wheelchair users who have been through various compensation cases. Luckily, these days the survival rate for someone with paraplegia or tetraplegia is very high. We also have to take that into account. I had not thought before about the impact on anyone who has been in the military. I know quite a few people who are injured through the military. Generally, the public are very supportive of the military and what they have gone through, and we would not want any unintended consequences for them.
When I was looking at conditions such as asbestosis, and others that have been debated on this group, it became very clear that in many cases these conditions present quite late and treatment is then very difficult, and many patients die before the compensation claim has gone through. We have talked before about coercion, and I know that Ms Leadbeater has said in various debates and comments that she is concerned about people being coerced not to end their life.
This is a situation where I could see this happening. If you go online and google asbestosis compensation or spinal cord injury compensation, a plethora of websites come up straightaway with calculators, so that you can have an indication of how much you could possibly gain. I had a look; it goes from a couple of thousand pounds for a back injury—which obviously would not account for this—up to £493,000 for someone with quadriplegia. The figures given as a range for asbestosis were £50,000 to £1 million. That is a life-changing amount of money for many families in this country, and it will colour the decisions they make.
It is slightly strange, because we talk about someone being a burden, but people will make a different decision because they are thinking of their children and grandchildren and protecting them for the rest of their lives. So a lot of clarity is needed to make sure that coercion does not go either way. I would be very interested in understanding what the noble and learned Lord intends to do to offer greater clarification for this group of amendments.
Earl Howe (Con)
My Lords, as we have heard, my noble friend Lord Harper’s Amendments 70 and 78 seek to expand the definition of terminal illness beyond illness or disease to include terminal injuries. If this amendment were accepted, it would enable those who have suffered terminal injuries through military service or industrial accidents, for example, to access assistance under the Bill.
It seems to me that these amendments are helpful in at least two ways. First, they raise the question of how we should define a terminal illness or disease. If a person has been injured and has a prognosis of six months, should that person be described as terminally ill for the purposes of the Bill? I suggest that this is not just a question for the noble and learned Lord; it is also one of relevance to Ministers. As we have said on previous occasions, it will be state-run services that deliver assistance, and Ministers will need to be clear on what constitutes terminal illness.
Put another way, if, as the noble Lord, Lord Hendy, rightly said, an injury is legally distinct from an illness, why should people with six months to live for reasons other than an illness or disease be excluded from the scope of the Bill? My noble friend Lord Blencathra argued that adding injury to illness would be a slippery slope. I need to reflect on that. I was not wholly convinced by what he said, because there is a moral case around an injured terminally ill person that we need to resolve. By the same token, if the question remains open, are we happy that it will be left to the courts to expand the definition of illness, if that is what the court decides? One could envisage that happening.
The second way in which the amendments are helpful is the issue raised by my noble friend Lord Sandhurst’s Amendment 829, which seeks to address a specific problem caused by the interaction between this Bill and the Fatal Accidents Act 1976. Having listened to both my noble friends, I share their concern. As Amendment 829 rightly implies, it may not be possible to resolve this through a simple amendment to this Bill. It would be helpful if the Minister could explain whether the Government accept my noble friend’s argument that if the rights afforded to bereaved relatives under the 1976 Act are to be preserved within the terms of this Bill—as surely is equitable—it will depend on the Government to identify ways in which that can be achieved in a legally and politically acceptable way.
Perhaps Ministers and officials could look at this between Committee and Report, and advise the noble and learned Lord, the Bill’s sponsor, so that we can resolve the problem before the Bill gets any further.
Baroness Merron (Lab)
My Lords, I will be very brief. The Government do not have any major technical or operational workability concerns on the amendments tabled by the noble Lord, Lord Sandhurst, and the noble Lord, Lord Harper, which were originally tabled, as we heard, by my noble friend Lord Hendy. To make the usual point, as noble Lords will be aware, these amendments have not had technical drafting support from officials, so further revision and corresponding amendments would be needed to provide consistent and coherent terminology throughout the Bill.
Lord Empey (UUP)
My Lords, I raised the point that the state could be liable in cases where the companies people worked for were nationalised or owned by the state. It seems not unreasonable that in due course the Minister could express a view on behalf of the Government, because the Government could be directly—and financially—affected by the consequences of the Bill.
Baroness Merron (Lab)
I appreciate the point the noble Lord is making—and indeed the points that the noble Earl, Lord Howe, made. However, as your Lordships’ House knows, I correctly restrict myself to commentary on what is before us. Should the Bill include this amendment, we will then respond at the appropriate time.
Lord Falconer of Thoroton (Lab)
My Lords, there are effectively two entirely separate issues raised by this group of amendments. The first is whether we should extend the current eligibility to people who have an inevitably progressive illness or disease to somebody who is terminally ill because they have injuries—for example, from a car accident—that might make them die within a specified period.
I was not sure whether the noble Lord, Lord Harper, was pressing that as an amendment, because the thrust of his remarks was much more focused on the effect on the Fatal Accidents Act. Whatever his position, I am afraid that I am not in favour of that amendment because the whole Bill has been put together and the argument for it has been based on people who are terminally ill. That is very different, for a whole variety of reasons mentioned by people, from somebody who is the victim of an injury.
I can see that people might say there was considerable moral equivalence, and the noble Lord, Lord Hendy, was right to say how persuasive he was when I spoke to him in relation to it. However, my clear view is that we should not extend the Bill beyond its current eligibility. I should also make absolutely clear that the wording of the Bill is clear; there is no prospect whatever that a court could construe the words “illness” or “disease” as meaning “injury”. What we send from Parliament will be the way it is read.
Lord Sandhurst (Con)
I am surprised by that because mesothelioma is an illness or disease caused by the injury—and that injury has been inflicted by the wrongdoing.
Lord Falconer of Thoroton (Lab)
I completely agree with that analysis, but it does not mean that if you have mesothelioma you are not suffering from a progressive illness or disease. That is different from somebody who is injured and has an injury that cannot be cured and was plainly caused by, for example, a car accident. I am grateful to the noble Lord, Lord Sandhurst, for making that point, because I was going to say that, when we are talking about, for example, an illness caused by smoking or a disease caused by industrial waste, that does not make it any the less an illness or disease. The Bill is not interested in how you got lung cancer or bowel cancer; it is interested only in whether you have an illness or disease.
The second point is of considerable importance—the question of the Fatal Accidents Act. I do not think that anybody in the Committee wants somebody who has, for example, mesothelioma to be deprived of any claim that they may have against somebody who has committed a tort in giving them mesothelioma. They should not lose that right as a result of taking an assisted death. My noble friend Lord Hendy made the important point that somebody who might want an assisted death should not be deterred from it because they worry that that might affect it. For me and for the Bill’s sponsor in the other place, the only question is: what is the best way to deal with that? One of the possible answers is to have a considered review that will report before the Act comes into force. There is a little difference between what I am saying now and what the noble Lord said. I have absolutely no desire to test this by a few court decisions early on. We have to resolve this before that happens.
That is why my Amendment 786A requires the Secretary of State to produce a report about the effects of the Fatal Accidents Act within “the first reporting period”—that means within 12 months of the Bill being passed—which is more than two years before it would come into effect. Plainly, the intention is that the report be given and then whatever necessary steps there are that have to be taken to deal with the position in tort can then be taken, if necessary, by primary legislation.
I think what the noble Baroness, Lady Finlay, meant in her speech was, “That is not good enough. You need to deal with the Fatal Accidents Act now, in the Bill.” There was no real sense one way or the other. Obviously, I will consider what she and others have said. If an amendment were tabled on Report saying that this had to be dealt with then and there—by which I mean a provision that said words to the effect of, “You do not lose your rights under the Fatal Accidents Act because you have an assisted death if you otherwise had them immediately before the assisted death”—it would be for the House to decide in relation to it.
The reason why I am advancing a review approach rather than nailing it down in the way proposed by the noble Baroness, Lady Finlay, is that it gives every single angle the opportunity to be looked at. But it would be for the House to decide which was the better way of dealing with it. There is no doubt that, one way or another, the point needs to be dealt with.
Three other points were raised. First, what about the statutory mesothelioma scheme, which makes provision for the payment of compensation? It is dealt with by regulations. We would need to look—actually I cannot look at them, but the Government would need to—at the regulations. I anticipate that there would be no real issue for the Government in making sure that an assisted death was not prejudicial to someone under that.
Secondly, on statutory compensation—I may have misunderstood the question but the noble Lord, Lord Harper, will help me with this if I have—statutory compensation for the military might have been what he had in mind, under the various statutory compensation schemes. Again, they are in the hands of the Government and we need to see what those statutory compensation schemes say.
The final point, made by the noble Baroness, Lady Finlay, was about insurance policies. As she will know, they depend entirely on the terms of the insurance policy and it is difficult to deal with the terms of an insurance policy in an Act of Parliament. However, I am grateful to everyone who contributed to this debate.
Baroness Finlay of Llandaff (CB)
Before the noble and learned Lord sits down and we end this, I have a real concern. If we are going to have a review from when the law is implemented, and it reports and decides what needs to be done, what is going to happen during that period to the victims, who may find that the argument that the chain of causation has been broken is picked up by insurance companies in an industry that is desperate not to pay out? As we have heard, the Government themselves have an interest in not having to pay out because of the size of the compensation for which people are rightly due because their lives have been not only ruined but taken away.
To go back to the point about injury, one of the long-term dangers of a catastrophic injury is renal failure. What if someone in that position decides that they do not want to continue with dialysis? That would then put them in the category of being terminally ill. I am also concerned that the building site, or wherever it was where they were working, that caused the catastrophic injury could then claim that the chain of causation had been broken in this situation and therefore wriggle out of compensation that would otherwise be due.
Lord Falconer of Thoroton (Lab)
On the first point, as I said, the review has to report in the first reporting period required under Clause 50. That means that it reports probably three years before the Bill comes into force, so there will be no cases. It is not doing what the noble Lord, Lord Sandhurst, was saying. On the second point about wriggling out, what the noble Baroness was describing would also be a Fatal Accidents Act case, so it would be covered, one hopes, by what the review deals with.
Lord Deben (Con)
My Lords, I come back to the idea of having an inquiry and a report. I do not quite understand why the noble and learned Lord does not feel that it is much more sensible for us to have it in the Bill. After all, otherwise you are in a sense dictating what the inquiry shall come up with. The only inquiry that you would want to have is one that found an answer to the problem, but you do not know that if you set up an inquiry. I would rather like to have the answer to start with in the Act so that we know that those people are protected.
Lord Falconer of Thoroton (Lab)
The reason, from discussing and thinking about this issue, is that the Government see the most convenient way of doing it is to have a review that can make sure every single aspect is covered. That is the argument for the review.
Baroness O’Loan (CB)
It seems from what the noble and learned Lord just said that the Government have been discussing this issue. If they have, is it his intention to ensure that, in providing such information as the Government provide under the terms of the Bill, they warn people that if they opt for assisted suicide in certain circumstances, it is possible that they will lose compensation to which they would otherwise be entitled and that this is a matter on which advice needs to be sought? Are the Government aware of any other situations in which this may happen to people who may opt for assisted suicide?
Lord Falconer of Thoroton (Lab)
I am afraid that I am not the Government. On the issue of risk, my proposal—although I recognise that some people want to go further—sets out a sensible course to reach the aim that everyone wants to reach, which is that the problem does not arise. One will have to look at the extent to which one has to warn against that problem when one sees where the review goes, because the question of what warnings have to be given will have to be addressed only at the point when the review has already reported and any action has been taken on it.
Lord Harper (Con)
My Lords, this has been a good debate, and it has raised a very important issue. The noble Lord, Lord Hendy, being a distinguished KC, and my noble friend Lord Blencathra spotted that I had not in my remarks pushed the injuries point. I confess that I am torn on that, because some injuries are effectively caused by employment, like mesothelioma where asbestos ingestion through employment results in an illness, as defined in this Bill already. Of course, there are other injuries that can be received in an employment context, where they would not qualify as an illness but where the outcomes may be very similar. But I do recognise all the issues raised by my noble friend Lord Blencathra, so I am torn on that.
Baroness Finlay of Llandaff (CB)
My Lords, this group concerns terminal illness. It is incredibly important. It is the title of the Bill, so it is extremely important that we have proper definitions of terminal illness in the Bill that are beyond doubt. The proposal to make eligibility dependent on a clinician’s judgment that a person is expected to die within six months might appear to be a safeguard, but evidence from palliative care, primary care and prognostic research shows that predictions are highly unreliable and largely guesswork. Some national celebrities who clamoured for eligibility live for years, while others campaigning for this Bill for themselves are clearly ineligible. Do doctors need to be 95% confident or 50% confident to rule that the patient will die within six months to be eligible? No validated clinical tools or tests exist to make such determinations with sufficient reliability for life-ending decisions. This lack of reliable knowledge leaves clinicians to face pressure to make prognoses they cannot substantiate with concurrent legal risks and ethical dilemmas.
Medical science recognises broad trajectories of decline. Those dying of cancer often experience a relatively long stable period followed by rapid deterioration over weeks or months. People with advanced organ failure, such as heart or lung disease, tend to decline in an unpredictable, fluctuating pattern marked by crises and partial recoveries. Others, particularly those with multiple conditions, neurological illness or frailty, experience a slow, progressive dwindling over years with an average of 20 or more months from identification of early palliative care needs to death and, during that time, quite marked fluctuations.
While these patterns help clinicians anticipate needs for care, they do not forecast how long an individual has left to live. A six-month prognosis is not a clinical truth. Medical prognostication for terminal illnesses is based on averages. However, in the individual, marked variables influence survival, including treatment response, infections and physiological resilience. A time-based legal threshold would turn population-level averages into high-stakes individual errors, approving some who are not within six months and denying others who are. An assisted death is irreversible, amplifying the consequences of prognostic errors and litigation. A systematic review of 42 studies on clinicians’ predictions for terminal cancer patients found very low accuracy rates ranging from 23% upwards. In a multicentre study of more than 2,000 palliative care patients with advanced cancer, physicians’ clinical predictions were accurate in only 35% of cases. Tools such as the surprise question—Would you be surprised if this patient is alive in a certain number of months or weeks?—have been tried as a way to predict those likely to die. It performs poorly at six to 12-month predictions, especially for people who have multiple conditions.
The six-month rule is unsafe and unworkable. Assisted dying legislation requires criteria that are objective, transparent and as evidence-based as possible. The definition must exclude conditions that can be meaningfully stabilised or controlled for years, as in Amendment 104 in the name of my noble friend Lady Grey-Thompson. Manageable conditions must not be treated as terminal if somebody during an episode of depression or other life trauma, such as bereavement or a relationship break-up, decides to stop whatever treatment they have when they are feeling suicidal, such as the diabetic who decides to stop their insulin knowing that if they do, they will die within weeks.
The arbitrary time of six months is unverifiable. You have a less than 50% chance of being right, and the index of suspicion, as written in the Bill, is far too low. A review paper by Scott Murray and Simon Etkind, published in the British Medical Journal in March 2025, described how inaccurate prognostic tools are—as well as the importance of illness trajectories, which can
“provide broad timeframes and patterns of likely decline”
to help doctors understand disease progress.
Patients with frailty have been described as being “on a tightrope”: some will stay on for years, but others may suddenly be blown off by an infection or a fall, and die rapidly. The Bill says nothing about pain, suffering or potential suffering. The only disease-related issue in it is prognosis, yet accuracy at six months below 50% is a pure guess that someone has six months to live. To tackle these problems, Amendments 71, 77 and 90 offer options to look at the progress of disease to increase the chance of being a little more accurate at six months, which is the point at which you could trigger the process of applying for an assisted death.
Amendment 79 would help clarify whether the disease is progressing because some potential disease-modifying treatments have been ignored—or, perhaps, the patient does not even know about such treatments. The progress of the illness will give a far better indication of whether you are rapidly deteriorating or are, in fact, remarkably stable.
My Amendment 444A would allow you to be monitored while you have other support, having triggered a request for an assisted death. This would allow specialist palliative care to be available to you if you wish to try out various suggestions. Then, as the disease is progressing more obviously towards death and there is a greater sense of predictability, the person would be eligible for sign-off by the panel and given the lethal drugs. The best evidence on predictability would be the point at which the palliative prognostic index score indicates that the person has a more than 50% chance of dying within six weeks.
However, Amendment 444A offers a compromise, because I am sure that many people will feel that six weeks is too short a timeframe. It suggests that the patient cannot have lethal drugs until they really are seen to be terminally ill and the clinicians are more confident in predicting that death is likely to occur within three months. The patient who is rapidly declining would not need to wait between first assessment and having an assisted death because they would be seen to be declining rapidly, but the patient who is completely stable would not risk having the lethal drugs until there was evidence that they were actually in the last phase of their terminal illness and a wrongful death could be avoided.
Some jurisdictions include frailty in their definition of “terminal illness”, but others do not. Evidence on this came up in Committee in the other place: a 2025 paper in Age and Ageing titled, “Why We Need to Consider Frailty in the Assisted Dying Debate”. With this extensive uncertainty around frailty and other multimorbid conditions, does the noble and learned Lord, Lord Falconer, include frailty in his definition of “terminal illness” or not? Also, does he accept that disease progress is critical to avoiding wrongful deaths? I beg to move.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, the noble Baroness, Lady Campbell of Surbiton, is taking part remotely. I invite the noble Baroness to speak.
Baroness Campbell of Surbiton (CB) [V]
My Lords, before I speak to the amendments in this group, I say that I too have not received the letter sent by the noble and learned Lord, Lord Falconer, regarding amendments he proposes to return with, so I am somewhat in the dark today, should the content relate to remarks I am about to make now. Please would he check the distribution list, as such information is crucial to our deliberations, especially when one relies so heavily on remote participation for inclusion, as I do?
Lord Pannick (CB)
It is a great pleasure to follow the noble Baroness, Lady Campbell of Surbiton, and to say how pleased I am, as I am sure all noble Lords are, that she is very much still with us. I hope she will be for many years to come.
This is an important group because, as has been emphasised, scientific precision is of course not possible in this area. Nobody could say that a doctor can tell you that you will die within six months. But the Bill does not so provide. Its conditions require only that the doctor, and the panel in due course, are satisfied that
“the person has an inevitably progressive illness or disease which cannot be reversed by treatment, and … the person’s death in consequence … can reasonably be expected within six months”.
The term “reasonably be expected” recognises the absence of scientific certainty and absolute knowledge in this very difficult area.
The noble and learned Lord will give his view on this in due course, but why, in my view, is the Bill right to so provide? It is because—we are down to the fundamentals of this legislation—if I am told by my doctor that, sadly, I have an inevitable progressive illness or disease and my death can reasonably be expected within six months, I should have the choice of saying that I wish to end my life by taking advantage of the provisions of this Bill. Each of these amendments seeks fundamentally to undermine the core of the Bill and the philosophy that guides it. I entirely accept that its opponents disagree, but this is the core of the Bill and why it rightly so provides.
It is no answer to these provisions and this philosophy that, happily, having been given that prognosis, I may well, should I choose not to exercise the powers under this Bill, live for seven months, 12 months, two years or however long. It would be wonderful if my doctors were incorrect, but it is my choice, having been given that prognosis. That is what this Bill is about—we have taken days debating this—and it is right and proper that we ensure that that decision is made on a voluntary basis and that there is no coercion. But, once those conditions are satisfied, if I am told by my doctor that that is my prognosis, it should be my choice whether to use the provisions of this Bill.
Baroness Jay of Paddington (Lab)
My Lords, does the noble Lord agree with me that one of the international facts that supports entirely the position he is taking is that, in the now 33 jurisdictions where assisted dying is allowed, it is usually the case—I cite one or two—that, following that suggestion by a doctor, or prognosis or however you want to describe it, over a third of those who make the choice he has described then do not use the provision? There is no question that they want to die; they are simply using it almost as an insurance policy.
Lord Pannick (CB)
The noble Baroness makes an important point, because this Bill is concerned with providing choice. Of course there is no mandatory obligation, but, if you are given this information, you should have the right—it is your life—to decide whether you wish to take advantage of these provisions. In many cases, if it were me or my family, I would argue strongly that there are other options and other things should be done. But it is a choice, and people should have that choice. That is the philosophy and what has guided so many jurisdictions around the world. Many noble Lords do not agree with that, which is their right, but that is what this Bill is all about.
Baroness Falkner of Margravine (CB)
My Lords, the noble Lord rightly emphasises that choice is an essential element of this. But in so emphasising, he appears to cast “choice” in a very black and white manner as if it can suggest, not perhaps 100%, but 99% certainty, one way or another. I am sure the noble Lord is very grateful that he has never been in the situation of the patient sitting in that chair, having a conversation with a doctor, as I have, unfortunately. I can tell him that it is not a conversation with one doctor; it is a conversation across a multiple range of people, because doctors want you to have second opinions and speak to others to see if they might think of how you might ameliorate your illness, particularly in the case of cancer.
Lord Pannick (CB)
The noble Baroness began by asking about my experiences. I do not really want to talk about my personal experiences, except to say that those I have loved have faced a terminal diagnosis. I am very familiar with all of this on a personal basis, as I am sure is everyone—or almost everyone—in this Committee, and our experiences, of course, guide our view as to the merits or otherwise of this Bill.
Lord Moylan (Con)
May I ask the noble Lord a question? This is not a trick question; I sincerely want to know his opinion from a legal point of view. The Bill refers—and he has said it refers—to a reasonable expectation of death within six months. Normally, and this was a point made by the noble Baroness, Lady Finlay of Llandaff, just now—and I have some amendments later which address this specifically—a prognosis given by a doctor in a particular case would be an average of the sort that we call a median. That is, 50% of people in your position will die within six months, but 50% will live longer than six months. Which one are you? Would that 50% constitute for him a reasonable expectation, or would he expect a higher threshold to apply in a case such as this?
Lord Pannick (CB)
I do not think any doctor, any panel or any court would adopt that type of approach to a complicated issue of this sort. They would rely on the judgment of the doctor, who no doubt would be well aware, or should be well aware, of the provisions of this Bill, if enacted. The doctor will exercise his or her judgment and be able to tell the patient whether there is a reasonable expectation of death within six months. The doctor will give that judgment, and whether you are eligible under the Bill depends on that. It is as simple as that.
Lord Farmer (Con)
My Lords, the noble Lord, Lord Pannick, is quite right that autonomy is the basic principle under this Bill. In fact, the noble and learned Lord, Lord Falconer, told the Select Committee that the essence of the Bill before us is autonomy, which makes it an outlier. Terminal illness plus an autonomous decision should not be the model that allows this Bill to be engaged. That terminal illness must also be causing suffering, which is why I support my noble friend Lord Frost’s Amendment 84. Rather than this being a cruel and heartless precondition, there are many public policy reasons for this that others have mentioned.
First, it would prevent social and economic circumstances and fear of being a burden from driving applications for assisted suicide. Secondly, if suffering were included, doctors could properly discuss palliative care and pain management, and lack of care could never be the motivation. Finally, there is a democratic imperative. The publicly presented raison d’être for this Bill is always the relief of suffering. Yet, without a suffering requirement, assisted suicide can be for any reason if there is a terminal illness judged to lead to death within six months. Others, such as the noble Baroness, Lady Finlay of Llandaff, have said why this six-month rule is unsafe and unworkable. We are glad Esther Rantzen is still with us three years after she was diagnosed with stage four lung cancer. We all sympathise greatly and genuinely with the loss of control she is facing; none of us looks forward to that. Like Dame Esther, I am also in my ninth decade. It is not at all theoretical that I, or indeed anybody else in this Chamber, might be in a similar position fairly soon.
None of us can be casual or flippant about the loss of autonomy. However, neither can we be reckless about this further move into what is in fact extreme bodily autonomy. I am particularly taken by the treatment of autonomy by the late Rabbi Jonathan Sacks. The noble and learned Lord, Lord Falconer, assured the nation on the “Today” programme yesterday that he respects people of faith. Throughout Morality, the last book Sacks published while alive, he stressed that human dignity does not come from autonomy alone but from being in relationship with others and—dare I say it—with God. The thread running through it is that we are moral beings because we are not alone. Autonomy is, he said, a “significant moral principle”, but there are other values, equally significant, that limit autonomy. When it comes to life and death, society must decide whether life is something we own or something over which we are stewards. For Sacks, redefining life as private property is inherently dangerous. If life becomes seen as disposable at will, society risks weakening its shared responsibility to protect and care for the vulnerable. When autonomy is allowed to trump all other values, the moral fabric of care and duty begins to unravel.
Allowing assisted suicide to enable unfettered choice shifts dignity away from intrinsic worth towards functionality or self-sufficiency, which is a dangerous precedent. Once the boundary between caring for life and ending life is blurred, society risks losing reverence for the vulnerable. Sacks treats the enthroning of personal autonomy as symptomatic of our cultural shift away from shared moral responsibility—a “we” orientation—to hyper-individualism, the fixation on “me”, which you could also say is selfishness. Assisted suicide further skews this imbalance by treating life purely as an individual possession rather than a shared trust.
It is not surprising that Bill’s sponsors have gone down the same autonomy rather than suffering route as the US has done, because international metrics bracket us with the US in terms of how individualistic we are as a nation. Yet Australia has an even higher individualism score than the UK. States and territories within it, and other high-scoring countries such as Netherlands, Canada and New Zealand, have all resisted the siren song of extreme bodily autonomy in this area and so should we.
Lord Falconer of Thoroton (Lab)
This is a pretty high-quality speech; it has pretty little to do with the six months. It is about the whole principle of the Bill. I am just wondering whether it is going to connect back to the six months.
Lord Farmer (Con)
I am supporting the inclusion of suffering from the noble Lord, Lord Frost, which is increasing the choice from autonomy to increased suffering. That is how it joins here. As many noble Lords have said, it is a very important area for us to discuss, and it is the underlying principle that the noble and learned Lord has said is supporting this Bill.
I mentioned shrouded attributes at Second Reading: the long-term unintended consequences of a course of action that might be politically attractive in the short term. Others have warned of the inevitable widening of the Bill through judicial review and future legislation, but I want to point out where else extreme bodily autonomy might take us. It is currently illegal to sell body materials—no money can change hands, apart from fixed compensation for expenses incurred for donating, for example, eggs, sperm or live organs such as kidneys. All that people can get for donating blood and plasma is light refreshments. Asserting autonomy and ownership over body parts would mean that people could sell one of their kidneys, perhaps to get out of debt. Do we really want that?
People with the rare condition body integrity dysphoria—BID—feel that a specific, healthy part of their body does not belong to them and that their body might feel right if it were removed or disabled. Until this happens—and, sadly, sometimes after amputation—they experience intense persistent distress, which usually starts in childhood or early adolescence and is lifelong. Again, do we really want what is illegal for doctors to perform now in this area to become legal and socially acceptable?
It is our duty and role in the UK legislative system to bottom out these shrouded attributes and long-term culture-shifting consequences. Bodily autonomy can never be treated as an absolute right. It must always be balanced against our status as moral social beings. Its primacy in the Bill is not a virtue but a fatal flaw.
Lord Moore of Etchingham (Non-Afl)
My Lords, I am glad that the noble Lord, Lord Pannick, said that this was at the heart of the Bill, in the sense that I think he is right; it illustrates one of the Bill’s great problems. It has emerged from this debate—the noble Baroness, Lady Finlay, made it clear—that this is very uncertain in medical terms, yet doctors are being asked to provide it. Why is that happening? Well, because it is a necessary gateway. Therefore, it seems to set up perverse incentives in the mind of the doctor, and it creates a professional problem.
Most doctors who will wish to give such a prognosis will be in favour of assisted dying; that would seem the natural likelihood of all this. If they therefore want to give the patient, or the applicant, what he wants, they will be less likely to want to inquire about and help with all the other, possibly better, treatments that might solve the problem. The patient may be in a situation in which they want to die and do not want to solve the problem. It seems that this is putting a big burden on doctors, and it is not right, professionally.
Why is this burden being put on them? It is the result of the views of the Bill’s progenitors. I think— I am guessing here—that the reason they concentrated on six months is that they are desperate to get it through in some way and they could see how difficult it would be if you started to argue about unbearable pain, for example. What is the definition of unbearable? How does it have a scientific or objective definition?
It seems to me that, if it is passed and six months is the only medical criterion, it will quickly become obvious that it was not adequate as a reason for doing it—but, of course, by then, the Bill’s progenitors will have scored their main hit by getting it into law that autonomy triumphs and assisted dying exists. Then, later, they will say—rightly—that if we have assisted dying, this is a silly or inadequate criterion so we need other ones and more of them. I am sorry to use the tired phrase, but it seems to be a slippery slope.
Baroness Freeman of Steventon (CB)
My Lords, I will make a very quick point. I was not expecting to speak on this, so I apologise for not being prepared. When I was at Cambridge, I worked on many risk communication tools that were used by doctors to help calculate somebody’s prognosis, particularly of cancer, and to communicate it to patients. A standard way of communicating that prognosis was to say, “Out of 100 patients with characteristics like yours, we would expect X number to be alive in one year”, or five years, or whatever. I do not think it is unreasonable for us to be asking what “reasonable” means in terms of the number out of 100 who would survive at, say, six months.
Baroness Hollins (CB)
My Lords, I will speak to Amendment 75, which I have added my name to. It addresses probably the most decisive yet hardest to confirm clinical issue, and is central to the Bill.
Prognosis is not determined by diagnosis alone. Throughout my career as a doctor, I have seen many patients whose disease sounded on paper as though death was imminent, yet their course was significantly altered by evidence-based treatment and high-quality palliative care. In evidence to the Select Committee, the Royal College of General Practitioners stated:
“It is possible to give reasonably accurate prognoses of death within minutes, hours or a few days. When this stretches to months then the scope for error can extend into years”.
I agree with my noble friend that a 50% likelihood of a six-month prognosis is not reasonable.
Amendment 75 would ensure that, when we speak of an expected prognosis of six months, we do so in the context of treatment offered to them, in line with national NICE guidelines and tied to clinical reality. Without this safeguard, there is a risk that people who choose to participate in assisted suicide could start the process even where treatment is delayed, unavailable or not even offered, and where symptoms or fear of the future are instead driving a perception of hopelessness.
A three-month prognosis, as proposed in Amendment 444A, from my noble friend Lady Finlay, would be much more accurate, as there is an evidence-based assessment tool available through the continuing healthcare fast-track process. Noble Lords may be unaware that fast-track funding is available for those who have a rapidly deteriorating condition where they are approaching the terminal stage and the end of their life. This funding is used to provide much-needed nursing care, hospice involvement and support for families, and can be put in place usually within 48 hours.
NHS guidance notes that the fast-track funding tool is used when urgent care is required at the end of life. The most robust data currently available comes from a 2023 observational study published in the British Medical Journal Open Quality. It examined 439 patients referred for NHS continuing healthcare fast-track funding. The median survival for patients whose fast-track funding was approved was only 18 days, and a minority of patients were still alive at 90 days after referral, showing a much more accurate prognosis. The short survival time found in the study suggests that many referrals occur very late, sometimes limiting the ability to arrange preferred care settings. I think ignorance within primary care of this funding pathway and its usefulness in supporting people to stay at home during their last days and weeks contributes to its low take-up, and perhaps the rather unnecessarily large number of people who spend their last days in hospital.
Approval for fast-track funding helps clinicians by grounding prognosis—an already incredibly difficult task to predict—in nationally agreed standards rather than variable local practice. There must be absolute clarity that no one becomes eligible for assisted suicide because the system has failed them, especially regarding geographical variability in treatment options or lack of awareness of these treatment options.
Baroness Lawlor (Con)
My Lords, I will speak to Amendments 72 and 80 in my name. I will not say anything about autonomy other than to mention to the noble Lord, Lord Pannick, that although it is a philosophical concept which was drafted in recent centuries, academic philosophy is very divided on how worthwhile it is as a concept.
I begin with my Amendment 80, which would substitute some detail for the very vague requirement that death within six months can reasonably be expected. We have already heard in the Committee, from everybody—not only today but on other days—that certain diagnosis is a very inexact science, and that diagnosing someone as having six months is very inexact.
We have heard from the noble Baroness, Lady Finlay, in opening, that conditions can differ, patterns can differ and patients can differ—we also heard that from the noble Baroness, Lady Hollins. Therefore, each patient must be assessed on an individual basis.
Against that, my Amendment 80 proposes that the difficult job of assessment is done by two consultants specialising in the relevant area, and it pins down that the expectation should instead be an 80% probability. If the sponsors are in earnest that those eligible really should be those who are within six months of death, they should be pleased to accept an amendment that tries to overcome the inexactness of such judgments by requiring confirmation by two of the most qualified experts in the area, and they should accept that an 80% likelihood is what, in this context, can reasonably be expected.
I move on briefly to Amendment 72. The Bill already refuses eligibility for assisted suicide when a condition that in itself is diagnosed to lead to death within six months can be reversed. My amendment takes the next logical step by limiting eligibility to cases where the condition not only cannot be reversed but cannot be relieved, controlled or ameliorated; I am adding to what has already been proposed in that group. The amendment aims to substitute a constructive, optimistic approach to treating illness, rather than one that writes off the patient and points them on the path to suicide.
That requirement—that, when steps can be taken to relieve, control or ameliorate a disease, the patient can no longer be considered for assisted suicide—will remove many otherwise difficult cases from this murky area and allow the mechanisms to operate as best they can for those for whom the Bill, on its face, intends them: people whose deterioration is inevitable.
There is an even more pressing reason than those two to accept this amendment: unless we positively exclude from eligibility patients whose condition could be relieved, controlled or ameliorated, we set up the conditions in which the relief, control and amelioration of terminal illnesses will become increasingly rare. We have heard of some remarkable instances today, not least from the noble Baroness, Lady Campbell of Surbiton—whom I am delighted to see back. Why would an overburdened health service try to give some extra months of life, give a higher degree of relief of pain, or ameliorate or arrest the progression of the disease, when it is so much easier to direct the patient, either implicitly or by expectation, towards assisted suicide?
What about relatives—even no more than ordinarily unscrupulous or greedy ones, or merely selfish ones—for whom the speedy death of their loved one is likely to seem desirable? We may also reasonably fear an overzealous state service committed to the task of accelerating the pathways of such unfortunate cases to their ends. My amendment guards against those consequences—some of the worst of a Bill so rich and varied in its capacity for harm.
Lord Frost (Non-Afl)
My Lords, I rise to introduce Amendment 84, which has already been touched on by the noble Lord, Lord Farmer. I am grateful to, and thank, the noble Lord, Lord Carter of Haslemere, for his support.
This group, as we have heard, is primarily about the definition of terminal illness. My amendment in this group touches on a somewhat different but related and important point, which is whether the terminal illness criterion—the existence of terminal illness—is in itself sufficient as a criterion. I am doubtful that it is, and that is why I have proposed this amendment.
As your Lordships know, there are two different models around the world for the kind of law that we are considering. Both include a terminal illness criterion. One type also has a suffering criterion, and that is the model used, as has been said, in Australia, New Zealand and elsewhere. The second type does not; it rests entirely on the concept of autonomy—the belief that if you know or have been told that you are going to die soon, you have the right to ask the state to allow you access to assisted suicide. I will say more about this autonomy point in a moment.
To state the obvious, the Bill is based on the second of those two models, but one of the problems is that much of the campaign for it is based on the first model—the assumption of a suffering criterion. Hence my amendment would introduce the concept of unbearable suffering that could not be relieved by treatment. It is probing; it aims to test the reasoning behind the preference of the Bill’s supporters for that type of model.
My amendment would do four things, and some of what I am about to say has already been touched on, so I will be brief. First, it would align the legal test in the Bill with the public justification for the Bill. It is clear that the campaign around the Bill bases much of its work on the need to deal with suffering and, if suffering is the moral foundation offered to the public, it should be in any eventual statute. It is clear from all the discussion around the Bill that many voters believe it already is in the Bill, and it should be.
Secondly, it would stop drift and the slippery slope. The problem here is that, if the real justification for access to assisted suicide is autonomy, what is the justification for the robustness of the six-month limit? We have heard that provisions in the Bill are vulnerable to court rulings, judicial review and the existence of the ECHR—although there is, of course, a way of resolving that particular problem—other broader principles and specific legislation such as the Equality Act. A suffering-led criterion would help Parliament to draw and defend a clear and principled line.
Thirdly, it is relatively—not totally, but relatively—easy to identify unbearable suffering. As has been noted, it is usually obvious from demeanour and body language when there is frequent and unbearable pain. This helps distinguish between qualifying and non-qualifying reasons for access to assisted dying, such as social pressures. This is vital given that we have already heard from the sponsor how widely drawn some of those criteria might ultimately be.
Fourthly, it has to be noted that, with a small number of exceptions, most other jurisdictions that use these laws have a suffering criterion: Australia, the proposed legislation in France, now happily stalled for the time being, the Netherlands, Belgium, Luxembourg, Spain, Portugal, the rejected legislation in Slovenia, New Zealand, Colombia and so on all have a suffering criterion, and for a good reason.
He has touched on it before, but when the noble and learned Lord, Lord Falconer, responds to the debate on this group, perhaps he could explain in greater depth why he is so insistent on an autonomy-only Bill, whether he recognises any limits on autonomy, and whether and why he is content to rest on autonomy as a justification while allowing campaigners to make a case based on suffering.
I want to say a few words on the justification of autonomy because it is so crucial and the Bill’s sponsors have been clear on the importance they attach to it. The noble and learned Lord, Lord Falconer, has been quoted before but it needs repeating:
“the essence of the Bill is autonomy. You have a choice … Once you satisfy that requirement—obviously, the safeguards have to be complied with—that is the essence of the Bill. It is autonomy”.
We heard from the noble Lord, Lord Pannick, who is not in his place, about the importance of choice in this area. That is really another way of expressing the same issue.
Proponents of the Bill have, at times, been perhaps a little dismissive of those of us who have religious convictions and suggest that we should not bring them to this debate. But I suggest that the belief in autonomy is also an a priori conviction with no more or no less right be heard unchallenged. It is surprising perhaps to find Ayn Rand-like views of the importance of individual autonomy emanating from the Labour Benches. It is a view that one can have, but I suggest that very few people do in fact have such views in practice.
Captain of the King’s Bodyguard of the Yeomen of the Guard and Deputy Chief Whip (Baroness Wheeler) (Lab)
The noble Lord is over the 10-minute limit. Could he please wind up?
Lord Frost (Non-Afl)
I am coming to my conclusion. It is somewhat safer with the two criteria of autonomy plus life expectancy and of unbearable and irremediable suffering. It limits the scope of the moral and legal change, or regression as I would see it, that we are undertaking here. That is why I have tabled Amendment 84 and why I think it is so essential.
Lord Carter of Haslemere (CB)
My Lords, I added my name to Amendment 84 since I think the noble Lord, Lord Frost, has struck gold with this amendment. Requiring
“unbearable suffering … which cannot be relieved by treatment”,
raises four critical issues at the epicentre of the Bill. First, his amendment exposes the total unreliability of a six-month prognosis of a terminal illness, as we have heard from numerous noble Lords. Trying to predict life expectancy is a hopeless exercise, especially when medical advances are improving at such a phenomenal rate. As the noble and learned Lord, the sponsor, said in relation to a prediction of six months to live, we are not dealing with certainty. I am with him on that.
Let me give the Committee an illustration from a real case. I know of somebody who was given a 5% chance of living for 10 years because he was suffering from an advanced aggressive cancer. It is not exact, but a 5% chance of living for 10 years approximates broadly to a reasonable expectation of dying within six months. That was 21 years ago and, as far as I know, I am still here—noble Lords will correct me if I have got that wrong. It does sometimes feel slightly otherworldly, listening to these debates.
Secondly, the requirement in Amendment 84 for unbearable suffering that cannot be relieved by treatment would have the obvious merit of bringing the effectiveness of palliative care into play, which is not currently the case as the Bill stands. As we know, the experts say that palliative care relieves pain in most cases and can help people who want to die to want to live. That is why a full assessment by a palliative care specialist is so important, as earlier amendments sensibly proposed. But the noble and learned Lord has said he is
“incredibly opposed to unbearable suffering as the root”
of this Bill. His view is unsurprising since the effectiveness of palliative care would significantly reduce the Bill’s impact.
So the noble and learned Lord falls back on the personal autonomy argument, telling the Select Committee that the essence of the Bill is autonomy—you have a choice, it is autonomy—and it would give people the option of an assisted death if they have simply had enough of life. This is the third issue that would be resolved by Amendment 84. Should the National Health—health—Service really be assisting a person to kill themselves if they have simply had enough of life, whether or not they are in pain and whether or not their feelings relate to their terminal illness? Is that what a health service should be doing? That starts to look very much like assisted suicide.
Fourthly, I respectfully suggest that the noble and learned Lord gets on the Clapham omnibus and asks anyone who supports assisted dying the reasons why they do so. Overwhelmingly, they will say that people should not have to suffer unbearable suffering. Yet, astonishingly, you will not find the words “pain” or “suffering” anywhere in the Bill. I read it word for word last night at great length to check that point. I could not find those words. Without any reference to unbearable suffering, there will be a massive disconnect between the public’s expectation and the Bill’s contents.
Let us be clear: the vast majority of the public are not on the edge of their seats watching our deliberations. Very few indeed will have read the Bill. They will therefore have a view of the Bill based on the common-sense assumption that people seeking an assisted death will be suffering unbearable pain. The compelling amendment from the noble Lord, Lord Frost, injects that common sense into the Bill by providing for that, and I heartily support him and Amendment 84.
Lord Taylor of Holbeach (Con)
My Lords, I am reluctant to involve myself in this debate, but I see this whole legislative process as being about practicalities in the end. It is good that we have had an exposition of the articulation of the motivation of the people seeking success for this Bill, but I am very concerned as a citizen because I think this is about palliative care and relief from suffering.
The Bill should have been about those very matters. However, it is not. It is about all the incentives, from government to public authorities. For those people that the legislation actually motivates, it is about promoting the idea that assisting dying—or assisted suicide—is available; whereas the medical profession prefers, and what all the medical colleges have said they want to see, is proper palliative care. We do not want a competition for the funding of one against the other. I can see that in individual and family lives—and the social life we have together, governed by a Government—the pressures are not going to be towards relief of suffering through palliative care but for assisted suicide. I do not agree with that and that is why I oppose the Bill.
Lord Wolfson of Tredegar (Con)
My Lords, I seek the indulgence of the Committee to say a word about my amendment. I am not speaking with my Front-Bench hat on, so to speak, because I understand that this group is going to carry on next Friday. I am in the middle of a trial and cannot attend then. I will speak to my amendment in this group now and will not summarise from the Front Bench but limit my comments to my amendment and the points which arise from that.
My Amendment 83B seeks to add
“despite any treatment they may be receiving”
It ties in with a point made by noble Lord, Lord Pannick, which I will come to in a moment because it is all tied together. The trigger for my amendment is in Clause 2(1), which reads:
“For the purposes of this Act, a person is terminally ill if”
and then there are two conditions, both of which have to be satisfied. The first is that
“the person has an inevitably progressive illness or disease which cannot be reversed by treatment”,
let us say—God forbid—one has pancreatic cancer, and it cannot be reversed by treatment. The second condition is that
“the person’s death in consequence of that illness or disease can reasonably be expected within six months”.
Two points arise out of that. First, there is the point which comes directly from my amendment, which would add
“despite any treatment the person may be receiving”.
Without this, it is unclear whether the six months is with treatment or without; in other words, you have pancreatic cancer and it cannot be reversed by treatment, so condition (a) is ticked. But when it comes to (b)—
“in consequence of that illness or disease”—
does it mean that illness or disease itself untreated or does it mean notwithstanding the treatment you have been given? I suspect it is the latter that the noble and learned Lord intends, but it is far from clear. It actually reads more like the former, although I suspect that it is the latter. That is why I tables my amendment, and I respectfully invite the noble and learned Lord to consider it. As I say, I apologise to him, the Minister and everybody if I am not here next week to hear the fulsome response.
The other point which arises from the “can reasonably be expected” wording is the question of whether that is the 50% point or not. I am sorry that the noble Lord, Lord Pannick, is not here, but it seems to me as a matter of law that if I have a legitimate expectation in public law, I do not need to have a more than 50% expectation of it happening. There was authority at the highest level in the House of Lords that “legitimate expectation” means reasonable expectation. I am comforted—as always—by nods from the noble and learned Baroness, Lady Butler-Sloss.
Therefore, as a matter of law, I can have a reasonable expectation of X, even if I do not think that X is more likely than not. That is an important point which perhaps the Committee will consider going forward. People are reading that as a 50:50 mean or median. However, I can have a reasonable expectation of it raining tomorrow, for example, even if I think there is only a 30% chance of it. That is a reasonable expectation: it is not more likely than not.
I do not want to stray too far from my own amendments so I will now sit down, but I am grateful to the Committee for its indulgence.
Lord Carlile of Berriew (CB)
My Lords, I would never stand in the way of a colleague who has a trial. I hope it is an important trial that will improve general knowledge.
Lord Wolfson of Tredegar (Con)
My Lords, I am defending the interests of a Labour-supporting newspaper.
Lord Carlile of Berriew (CB)
Well, there we are: we know that the noble Lord adheres to the cab rank rule.
We have heard three very cogent speeches from the noble Lords, Lord Frost, Lord Carter and Lord Taylor, about the suffering point. If we look at the discussion we have had this afternoon, we now have a clear and stark difference between assisted suicide based on suffering and assisted suicide based on choice. I agree entirely with the noble Lords, Lord Frost and Lord Taylor: the public expect this Bill to be dealing with suffering. The public understand this Bill to be dealing with great suffering. They understand that the choice to have one’s life ended is based on great suffering, although it does not say so in the Bill. That must be clarified by the sponsor.
On the other side of the argument, we heard a very eloquent speech from my noble friend Lord Pannick, with whom I have a lot of sympathy. It is not generally known that, as he said, he has very personal experience of the issues arising from this Bill. However, the choice he is suggesting comes very close to being a choice for anyone who is seriously ill, not just someone who is seriously ill with an expectation of death within a certain limited period, whatever that happens to be. I fear that those of us who, like the noble and learned Lord the sponsor, are trying to reach the end of our process in the House of Lords on the basis that there will be a Bill, so it must be the best it can be, are not focusing on what choice really means.
We are talking about informed choice, accurate choice, if we can achieve it. I bear in mind very much what my noble friend Lady Finlay said. We are talking about a protective choice: the duty of the state to protect the citizen, even when they are making a choice. We do not, as citizens, have unlimited free choices in what we do; therefore, protection is important. It must be a morally sound choice, because that is part of our polity. We do things that are morally sound, and the Government protect us from those which may not be. It must be a choice founded on medical and scientific integrity: and there is the rub, going back to the points my noble friend Lady Finlay made about the uncertainty of the scientific and medical integrity of what is proposed.
For those reasons, I support the amendments that are focused on choice. I will mention three other amendments that I also support. The first is Amendment 76, which is not in my name but in that of the noble and learned Lord, Lord Garnier, but he is not able to be here for the latter part of today’s proceedings and I agreed to mention it at his request.
Amendment 76 would do something very simple. In Clause 2(1)(b), it would add one word, “direct”, so that a person is terminally ill if, in the amended paragraph (b), their death as a direct
“consequence of that illness or disease can reasonably be expected within six months”.
It may not be the perfect word, but it is about facts and the consequences of those facts. I agree very strongly with the noble and learned Lord, Lord Garnier, that if there is to be a death of someone through the assistance of a third party, which is what the Bill is fundamentally about, then it cannot be just a consequence, or one of the many consequences, of the illness. It has to be the, or at least a, major consequence of the illness. That is the purpose of that amendment: there has to be a bond, as it were, between the illness or disease and the death which ensues.
The next amendment is Amendment 93. It suggests leaving out Clause 2(3) altogether as it lacks clarity as to when an assisted death would be permitted. The subsection says that
“treatment which only relieves the symptoms of an inevitably progressive illness or disease temporarily is not to be regarded as treatment which can reverse that illness”.
What if the relief that is provided for an inevitably progressive illness provides not only relief from the symptoms but extra time to the person who is suffering from the illness or disease? I argue that if it allows extra time, the individual concerned will be having a new experience: they will be seeing what can happen if their symptoms are relieved. They need to discuss with their medical advisers whether they can have that relief of their symptoms again and whether it will prolong their life if they do. The relief may cause a fundamental change of heart by the individual. Therefore, I do not believe that there should be any possibility of the six-month period being elongated in any way by that relief. Indeed, I believe that the period should start again if such relief is given so that the person concerned can have an informed choice.
The third amendment is Amendment 96, which suggests leaving out Clause 2(4), which says:
“For the avoidance of doubt, a person is not to be considered to be terminally ill only because they are a person with a disability or mental disorder (or both)”,
followed by an important further sentence that I will not read out because of time. This subsection fails to deal with the proportionality between the disease, which is the terminal illness, and the disability or mental disorder, or both, from which that person also suffers. It is a complex little conundrum, but a very important one. I believe that proportionality needs to be clarified so that the Bill can be the best possible Bill we can have.
We have much still to learn about the issues that have been under discussion. I invite the noble and learned Lord, Lord Falconer, to consider these carefully and present some draft amendments to us before we meet again in a week’s time.
Lord Blencathra (Con)
My Lords, I seek a cast-iron assurance from the Government Whip that those of us whose speeches will be delayed till next Friday are recorded by the Government and will be allowed to speak. That is all I want to say at this stage. We want an assurance that we will be allowed to speak next Friday if we delay our speeches from today.
Lord Rook (Lab)
My Lords, I will speak to Amendments 99, 102 and 105 in the name of my noble friend Lord Hunt of Kings Heath, who cannot be in his place today. For reasons that will become apparent, I have also added my name to the amendments. I declare an interest as the carer for a family member with long-term dementia.
Taken together, these amendments address a single fundamental problem in the Bill, namely the current definition of terminal illness. It is too broad, too vague and therefore too vulnerable to expansion—by interpretation, pressure and, ultimately, the courts. These amendments seek not to frustrate the Bill’s stated purpose but to clarify it. They seek to ensure that eligibility rests on being already dying, not on age, disability, long-standing conditions or cognitive decline. That clarity matters not only for patients but for clinicians, families and the credibility of the law itself.
Amendment 99 makes clear that being elderly is not of itself a qualifying condition. This should be uncontroversial, yet the current drafting risks conflating age, frailty and terminal illness. Evidence to the Lords Select Committee repeatedly warned that older patients commonly present with multimorbidity: multiple long-term conditions interacting in ways that make prognosis deeply uncertain. Professor Martin Vernon told the Select Committee that, in such cases, prognostication is “extraordinarily difficult”, particularly where frailty blurs the line between disability and terminal illness. If we do not explicitly exclude age, we will risk encoding ageism into statute.
Amendment 102 provides similar clarity in relation to dementia, confirming that it is to be treated as a disability, not a terminal illness in itself. This reflects both clinical reality and ethical responsibility. Dementia has an unpredictable course, and many people live for years with meaningful relationships and quality of life. In 2008, my father was diagnosed with mild cognitive impairment, a form of dementia. In 2010, he was diagnosed with Alzheimer’s disease. As a family, we expected that these diagnoses would dramatically shorten and limit his life. His condition has declined in the 16 years that have followed; he now requires considerable support from family members and a heroic team of carers. Despite this, he continues to live with a good degree of independence and a real quality of life. While his dad jokes continue to get worse—they should definitely be subject to a terminal diagnosis—he continues to be someone of good humour. If you had told me a decade ago that we would be sitting tomorrow at the Cherry Red Records Stadium, hoping and praying for AFC Wimbledon’s first home win since September, I simply would not have believed you.
In line with my father’s experience, your Lordships’ Select Committee on the Bill heard compelling evidence that the six-month prognosis safeguard is particularly unreliable, especially when it comes to cognitive conditions. To treat dementia as terminal by default would place profoundly vulnerable people at risk, especially given the well-documented difficulty of assessing capacity when cognition fluctuates. We will obviously come to the issue of capacity in later amendments.
Finally, Amendment 105 addresses congenital, genetic and lifelong conditions, which are present from birth and compatible with long-term survival. This is a necessary safeguard. Evidence to the Commons Bill Committee made clear that the Bill’s current language—phrases such as “inevitably progressive” and “cannot be reversed by treatment”—is worryingly elastic. Clinicians warned that, without clarity, even manageable conditions could fall within scope, particularly if treatment is refused or unavailable. We have seen this in Oregon, where qualifying conditions under a similarly broad definition have come to include arthritis and complications from a fall. This is not a path that this House should leave open.
Underlying all three amendments is a shared concern about scope creep. The Equality and Human Rights Commission, as we have heard today, warned at Second Reading that Clause 2 lacks sufficient clarity to be applied consistently by medical professionals. Human rights experts told the Lords Select Committee that the six-month criterion could itself become the basis for Article 14 challenges, precisely because it is arbitrary and weakly justified. Once Parliament establishes an autonomy-based model with clear boundaries, pressure for expansion is not hypothetical—it is inevitable.
Lord Sandhurst (Con)
My Lords, I speak to Amendments 82 and 83A in particular, which were advanced by my noble friend Lord Polak, who could not be here after 4 pm today, and I said that I would speak in support of them. I endorse entirely what my noble friends Lord Taylor of Holbeach and Lord Frost have said—theirs were admirable speeches and every word was right.
Amendment 82—I can take this shortly, as I am conscious of the time—addresses the phrase “reasonably be expected” in defining who is terminally ill. It asks for those words to be removed and seeks to insert in their place,
“be highly probable and require dual specialist certification by independent consultants”.
In other words, it is to do with the vagueness which would otherwise occur, and which would be subjective and dangerously elastic as life goes forward five and 10 years down the road and this Bill is applied—I am assuming that the Bill will come into force.
The threshold is too low and the condition is too uncertain. Inserting these words would require two independent specialists—consultants with expertise in the relevant field. When looking at vagueness and uncertainty and the risk of people who are not really experts in the field giving this sort of advice to an individual, I was particularly moved by the powerful speech of the noble Baroness, Lady Campbell. We have heard others, as well, from those who have had similar experiences, not least my noble friend Lord Polak, who cannot be here and who would have been speaking to this amendment. I know it is that which has motivated him to bring this amendment. Amendment 82 would introduce a higher test. It would be a safeguard that is both practical and ethical. It is about introducing something which is much closer to certainty or confidence, not just vague possibilities.
Amendment 83A does not touch on the six-month timeframe. It would ensure that eligibility for assisted dying rests on rigorous and established clinical standards, not on a broad prognostic guess; it would be determined by clinical judgment, in accordance with peer-reviewed palliative care standards. It may be that someone can come up with a better way of putting it, but it is a shot at saying something that doctors in this position will understand.
I remind the Committee that my noble friend Lord Polak is living proof that such predictions can be very wrong. Amendment 83A would be a step towards a proper principle. It would retain the six-month timeframe but would insist that the judgment was grounded in peer-reviewed palliative care standards, not vague estimates. These small amendments would strengthen the Bill and safeguard our humanity, if we decide to go down the route of adopting it.
Baroness Wheeler (Lab)
My Lords, this seems to be a convenient time to pause proceedings for the day. I move that debate on this amendment be adjourned. If agreed, I ask colleagues in attendance to make sure at the end of proceedings that their name is registered at the Table for the continuation of the debate on 6 February.
Baroness Scotland of Asthal (Lab)
Noble Lords will know that I have sat for the whole day waiting for amendments and have not intervened, but I want to put on record that I will not be able to be here next Friday. I therefore invite the House to consider particularly what the noble Baroness, Lady Campbell of Surbiton, said about Amendment 87. I also put on record my thanks to my noble and learned friend Lord Falconer for his willingness to look at the issues of anorexia and bulimia. I regret that I will not be able to be here then.